INDUCEMENTS UNDER TULRCA 25/05/2016 INDUCEMENTS UNDER TULRCA The focus of the talk today is the TU Act. It is important to remember that the TUC and the unions achieved some important concessions during the passage of the Bill to becoming an Act . What is interesting is that After all the debates and the concessions we look at what is now in force and the concessions The Bill has just received Royal Asset on 4 May 2016, completed the report stage in the House of Lords and moves to a third reading on the 25th April 2016. Further amendments can be made at that stage but these are generally tidying up rather than substantial amendments. The Bill has now just been re-printed with the amendments and will be debated in the House of Commons on 27 April 2016 for the ‘ping-pong’ session, where the commons will consider the amendments proposed by the House of Commons and any further amendments. In this session, I will give an overview of the provisions on the Trade Union Bill so far which will hopefully lead to a debate on the legal and industrial issues for us to discuss. I hope to offer an overview on the key proposals and raise discussion points on both legal and industrial issues for us to talk through.

Agenda Background and context Definitions Worker Recognised union Offer Inducement Prohibited result Sole or Main purpose Background and context Wilson and Palmer Employment Relations Act 2004 Definitions Case law: sole or main purpose Dunkley ET EAT Implications for the future

Wilson & Palmer (1) Wilson & Palmer Decision 2 July 2002 David Wilson & the Daily Mail Section 23 of the Employment Protection (Consolidation) Act 1978 The Ullswater Amendment & “… furthering a change in the relationship…” The House of Lords Decision : omission/membership definitions

Wilson & Palmer (2) Wilson & Palmer Decision 2 July 2002 “should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf”. “…by permitting employers to use financial incentives to induce employees to surrender important union rights, the Respondent state failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention”.

Employment Relations Act 2004 Explanatory Note The Court concluded that UK trade union law was incompatible with Article 11 of the European Convention on Human Rights (freedom of association) in that where a trade union was recognised by an employer for the purposes of collective bargaining about the terms and conditions of a group of employees, the law did not prevent the employer from offering inducements to the employees in the group to persuade them to surrender their collective representation and have their terms settled instead by negotiations between each individual employee and the employer.

Section 145A TULRCA Section 145A posits a right for a worker not to have an offer made to him or her by his or her employer if the sole or main purpose is to induce him or her not to be or seek to become a union member, not to participate in the activities of an independent union or make use of union services at an appropriate time.

Section 145B TULRCA Section 145B posits the right for a worker who is a member of an independent trade union not to have an offer made to him by his employer if that union is recognised or seeking recognition; and where the sole or main purpose of the offer is that workers terms of employer will not (or will no longer) be determined by collective agreement, and acceptance of those offers would have that result.

Definitions Definitions Worker Recognised union Offer Inducement Prohibited result Sole or Main purpose Narrow and wide view [factors 145D(4)] ‘The prohibited result is that the terms of employment of the workers concerned will not be or will no longer be determined by collective agreement negotiated by or on behalf of the union’

Sole/Main Purpose Case Law Budgen & Ors v London Borough of Bromley ET Case No : 2360959/13 Wyer & ors v Pembrokeshire County Council ET Case No 1601425 Whittaker v Buckinghamshire County Council ET Case No 33000720/13

Dunkley v Kostal UK Ltd Facts 10.12.15 Direct offer 1 to employees 29.01.16 Direct offer 2 to employees Oct 15 Offer made to union Loss of Christmas bonus Risk of termination

Dunkley v Kostal UK Ltd ET & EAT ET Decision Rejected ‘temporary impasse’ Rejected ‘sole or main purpose’ EAT Decision Result need not be permanent No right of veto ‘exceptionally improbable’ that the company had not intended to circumvent collective bargaining

Dunkley v Kostal UK Ltd C of A The Key Issues to be Determined The prohibited result is not the effect it has at the moment of acceptance but the effect it will have on collective bargaining in the future after the time of acceptance. The EAT erred in construing the employer’s sole or main purpose. Misdirection of the effect of Wilson v Palmer – not to prevent direct offer outside CB process but to prevent inducements to relinquish collective bargaining.

Inducement Litigation in The Future Key Areas Definition of an Offer (Impositions and Offers that lead to less favourable terms). Prohibited Result. Likely to be resolved in the Court of Appeal. In particular is a “one-off” situation sufficient to result in the Prohibited Purpose test having been met. Sole or Main Purpose. The Key Battleground. No Union veto so what are likely to be the key considerations. Article 11.