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John Bowers QC on Employment Law: May Blog

The following commentary is the latest in a series of Employment Law blog posts by John Bowers QC.

Ballots in important public services
One of the key changes in collective labour law in recent years is the revised thresholds for strikes in essential services, defined in the Act as important public services. This has been a Conservative Party for some decades and was originally intended as a ban on such strikes (which might have fallen foul of human rights jurisprudence).

The Trade Union Act 2016 has fundamentally changed the approach that must be adopted in relation to the numbers of members who must participate in a ballot in order to make a ‘yes’ vote valid under the 1992 Act and give the protection of the immunity. By section 226(2) –(2E), inserted by the 2016 Act it is necessary that:

“(a)     the union has held a ballot in respect of the action—
(i)      in relation to which the requirements of section 226B so far as applicable before and during the holding of the ballot were satisfied,
(ii)     in relation to which the requirements of sections 227 to 231 were satisfied,
(iia)   in which at least 50% of those who were entitled to vote in the ballot did so, and
(iii)    in which [the required number of persons (see subsections (2A) to (2C)] answered ‘Yes’ to the question applicable in accordance with section 229(2) to industrial action of the kind to which the act of inducement relates;

The effect of this section is that in the relevant categories at least 50% of those entitled to vote must have participated in the ballot and there must be a majority in favour of the action. In the case of “important public services” there is a further requirement that at least 40% of those entitled to vote must have voted ‘yes’. This means that there is a further restriction for important public services which works as follows. Suppose there are 1000 members. In an ordinary ballot at least 500 must vote and a majority would be secured by 226 of that 500. If the ballot relates to important public services, at least 40% of the 1000 must have voted in favour, so that 401 would need to have voted in favour for the ballot to be effective. This may be a severe restriction where the numbers who turn out to vote are low (as if often the case). Regulations have been made so far in relation to health, education, fire services, transport services and border security

The Department for Business, Energy and Industrial Strategy has issued important non statutory guidance of which the key points are that:

  • Where there is a mixture of important and non important workers the 40% threshold will only apply if there is a majority of workers who are carrying out important public services unless the union reasonably believes that this is not the case.
  • Where workers only spend part of their time on important services the question is whether they are normally engaged in the provision of important public services. The Guidance states at paragraph 9 that it is for the union to consider what is normal in the sector or workplace and whether it holds sufficient information to arrive at a reasonable belief. Paragraph 10 further provides a non-exhaustive list of factors:
– how regularly the worker delivers important public services;
– the proportion of time that the worker spends on delivering important public services;
– whether the worker is contracted to deliver important public services;
– whether the substantive role of the worker is to deliver important public services at the time of the ballot or likely industrial action;
– whether the worker has been temporarily allocated to different duties, and the time period this is expected to last for.

Interestingly the devolved Welsh Authority have resiled from these new balloting thresholds. The  Trade Union (Wales) Act 2017 amended the 1992 Act as from 13th September 2017, to insert a section 226(2EA) which provides that regulations may not specify services provided by a devolved Welsh Authority.

New Vento bands
The Presidents of the Employment Tribunals in England & Wales and Scotland have issued guidance updating the bands of awards for injury to feelings, known as the Vento bands.

For claims presented on or after 6 April 2018, the Vento bands shall be as follows: a lower band of £900 to £8,600 (less serious cases); a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900.

Robots and jobs
Here at Oxford there are incredible advances in robot technology and the University is at the global forefront of research on autonomous vehicles. I was thus particularly interested in a recent report that each robot working in Britain’s factories has cost the equivalent of 3.6 jobs, Carl Frey, co-author of the research, and Oxford Martin Citi Fellow at Oxford University, said: “Robots, just like technologies of the past, serve to boost productivity growth, but they do not create jobs, so far”.

One of the most significant cases in recent years is CLFIS v Reynolds. Ms Reynolds was employed by CLFIS and was in her seventies. Her contract was terminated after rumblings of discontent with her performance within management.  Mr Gilmour was the dismissing officer. Ms Reynolds’ claim that she had been discriminated against on the ground of her age was dismissed by the ET. The ET had said that the decision-maker was Mr Gilmour and no one else, and it acquitted Mr Gilmour of being influenced by Ms Reynolds’s age. The EAT remitted the case to the ET, accepting the argument advanced on Ms Reynolds’ behalf that, even if the sole decision-maker was Mr Gilmour, his decision might have been shaped and informed by others within CLFIS and the ET should have considered that possibility. The Court of Appeal allowed CLFIS’ appeal. The ET had focused solely upon Mr Gilmour and his reasons for acting as he did, because it had not been suggested on behalf of Ms Reynolds that anyone else discriminated against her. The burden of proof provisions in the Equality Act 2010 did not place a blanket obligation on CLFS, as the employer, to prove the absence of discrimination in respect of every act of every employee that had formed part of the chain of events leading to the dismissal. Ms Reynolds had to establish a prima facie case that the dismissal had been because of her age. Whether that case was made out had to be decided by reference to the case that Ms Reynolds had advanced. Since the case she advanced only referred to Mr Gilmour, the ET had not erred in only considering Mr Gilmour’s motivation.

Underhill LJ said that the solution in such cases was to ensure that the claim specifically raised the conduct of or act of the influencer and cited that influence either as the detriment or as contributing to the risk of a dismissal or detriment. This would ensure that the tribunal would then evaluate that specific claim and the extent to which the influencer caused or contributed to the risk of dismissal or detriment on a loss of a chance basis—that is to say to what extent the influencer’s influence contributed to the risk to the claimant of their dismissal or a detriment.

Underhill LJ acknowledged some practical difficulties arising from this approach. Such an allegation needed to be put clearly and notice of it given so that the respondent could call the necessary evidence. However, the fact that the apparent decision-maker had been influenced by another might not become clear to the claimant until well into the proceedings, or even at trial. Underhill LJ did, however, consider that these practical difficulties could be surmounted, if need be by an amendment being sought at the appropriate time.

Readers may find interesting a note I wrote with Jeremy Lewis in the latest Industrial Law Journal on Jhuti v Royal Mail an important whistleblowing case.

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