Worklife 2.0: The Effective Collective – 2022 in review and what to expect in 2023

In the months leading up to the end of 2022 an increasing number of unions chose to take strike action in an escalation of often long-running disputes in respect of pay, benefits and working conditions. 2022 also saw various changes in the legal framework relating to strikes and industrial action. Further changes are also set to come in 2023; notably, the Government recently announced its plans to introduce anti-strike legislation which will enforce minimum service level obligations across multiple sectors.

In our previous blog posts here, here and here, we’ve explored what’s behind this trend and the implications for employers. In this blog post, we look back at the past year and consider the key developments in industrial relations law over the course of the past year, as well as looking ahead to what we can expect in the next twelve months.

Key developments in 2022

1. Liability of trade unions: The Liability of Trade Unions in Proceedings in Tort (Increase of Limits on Damages) Order 2022 amended the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A) to increase the maximum damages awards which can be made against a trade union which encourages unlawful industrial action. This might mean that we see more claims for damages proceeding in the coming months and years.

From 21 July 2022, the maximum damages were increased to the following amounts:

• If a union has less than 5,000 members: £40,000 (previously £10,000);
• 5,000 to 24,999 members: £200,000 (previously £50,000);
• 25,000 to 99,000 members: £500,000 (previously £125,000); and
• 100,000 or more members: £1,000,000 (previously £250,000).

2. Ability to use agency workers to cover strikes:  The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 - which has provoked some controversy since it was first proposed - came into force on 21 July 2022, enabling companies to use agency workers to perform duties which are normally performed by a worker who is on strike (it had previously been a criminal offence to hire temporary labour to do so).

However, in September 2022, the Trade Union Congress (TUC) reported the UK Government to the International Labour Organisation (ILO), the United Nations agency which sets workers’ rights standards globally, for alleged infringement of workers’ rights to strike. If the complaint is upheld, the ILO could censure the UK, but cannot intervene in law-making. Three separate legal challenges have also been launched by Unison, the TUC (together with 11 other unions) and NASUWT. These claims will be heard together in March 2023 at the earliest.

3. Potential limits on paid time off in the public sector for trade union officials: Public sector employers employing one or more trade union officials are required to publish certain information regarding the time off work which is taken by those employees for trade union duties (referred to as “facility time”). The Trade Union Act 2016 (Commencement No.5) Regulations 2022 came into force on 25 November 2022, which will allow for regulations to be made which could ultimately be used to limit the paid “facility time” taken off work by trade union representatives in the public sector to a percentage of the employer’s total pay bill.

4. Pay rises could be an “unlawful inducement”: In Ineos Infrastructure Grangemouth Ltd v Jones and ors [2022] EAT 82, the Employment Appeal Tribunal (EAT) held that an employer had acted unlawfully by effecting a pay increase (which had not been accepted by the union in collective bargaining) and simultaneously terminating the collective agreement with the union. This amounted to an “unlawful inducement” under section 145B of TULR(C)A, which makes it unlawful for an employer to make an offer to union members where acceptance of the offer would result in the employees' terms and conditions no longer being determined by collective bargaining. This case confirmed that an employer cannot assume that a collective bargaining process has ended when an employer’s “final” offer is rejected by the union – just because an employer calls the offer “final” does not mean it really is a final offer.

5. Rectification of collective agreements: In Tyne and Wear Passenger Transport Executive t/a Nexus v National Union of Rail, Maritime and Transport Workers and anor [2022] EWCA Civ 1408, the Court of Appeal held that the equitable remedy of rectification (which permits a court to correct a mistake in a written agreement to reflect the parties' contractual intention) is not generally available in respect of collective agreements. Under section 179 of TULR(C)A, collective agreements are presumed not to be legally enforceable unless they specifically state otherwise. The collective agreement in issue did not include such a statement. The Court of Appeal held that rectification is only available for legally binding documents, overturning the High Court’s decision on this point. The collective agreement could be capable of rectification to the extent its terms were incorporated into individual contracts of employment, but this could only be achieved through an action brought by the employees themselves rather than by the trade union.

And coming up in 2023…

6. Minimum service levels for transport services: The Transport Strikes (Minimum Service Levels) Bill (the Strikes Bill) had its first reading in the House of Commons on 20 October 2022. It proposed to introduce minimum service level specifications for certain transport services during periods of industrial action.

Under the proposal, unions would be obliged to enter into a Minimum Service Agreement (MSA) under which they would be required to ensure that minimum service levels are maintained during any industrial action. Employers would be able to give notice to the union (following consultation) to require that certain named individuals continue to work during any proposed industrial action in order to meet the minimum service levels under the MSA. If the union fails to take reasonable steps to ensure that the named individuals do not participate in the industrial action, the employer will have a potential claim against the union. Any named individuals who participate in the industrial action would also lose their protection from automatic unfair dismissal.

On 5 January 2023, the Government announced that this bill would be superseded by a bill to impose minimum service levels in a variety of sectors, and just today the Strikes (Minimum Service Levels) Bill was announced. The Government says in its press release that it will first consult on minimum service levels for fire, ambulance and rail services and that it hopes to not have to use these powers for other sectors included in the bill such as education, other transport services, border security, other health services and nuclear decommissioning.

7. Legislation on “fire and rehire”: The Employment (Dismissal and Re-engagement) Bill and the Employment and Trade Union Rights (Dismissal and Re-engagement) Bill will, if enacted, amend the law relating to workplace information and consultation, employment protection and trade union rights to protect workers from dismissal and re-engagement on inferior terms and conditions (a practice known as “fire and rehire”). Their first readings took place in June 2022 in the House of Commons and the House of Lords respectively. The Employment (Dismissal and Re-engagement) Bill has its second reading in March 2023 and the date for the second reading of the Employment and Trade Union Rights (Dismissal and Re-engagement) Bill is yet to be announced. The Government has confirmed that it will not support the Employment (Dismissal and Re-engagement) Bill through the parliamentary process. Instead, it has announced that a draft statutory code of practice on fire and rehire will be published for consultation in the “near future” – this will likely result in courts and tribunals being required to take the code into account when considering cases and give courts and tribunals the power to apply an uplift of up to 25% where an employer unreasonably fails to follow the code.

8. E-balloting: This has been an issue for quite some time now. In 2017, a Government review led by Sir Ken Knight (the Knight Review) recommended that e-balloting should not be introduced in an industrial action context until the Government had tested it in non-statutory contexts. The Government stated that it would consult with experts from relevant organisations before responding to the Knight Review. In April 2022, it confirmed that this consultation has now completed and that a response to the Knight Review will be issued “in due course”, but it seems unlikely that the Government will be in favour of introducing e-balloting any time soon given the current industrial relations landscape.

9. Pay offers to be put to members’ vote: In the ‘mini-Budget’ published on 23 September 2022 by the former Chancellor, Kwasi Kwarteng, plans were announced to introduce legislation requiring trade unions to put pay offers from employers to a vote of members to ensure that industrial action can only be started once negotiations have genuinely broken down (see more here). This announcement was not expressly reversed by the new Chancellor, Jeremy Hunt, in his Autumn Statement (see more here), so it must be assumed that this proposal will progress in the new year, perhaps in the same way as the Strikes Bill (which was also announced by the previous Chancellor in the Growth Plan that accompanied the mini-Budget).

10. IWGB to challenge Deliveroo in the Supreme Court: The Independent Workers Union of Great Britain (IWGB) has been seeking formal collective bargaining rights for Deliveroo riders since 2016. In 2017, the Central Arbitration Committee held that the riders were not "workers" for the purposes of TULR(C)A and were therefore ineligible for trade union recognition.

In May 2022, Deliveroo signed a voluntary partnership agreement with GMB Union, which granted self-employed members collective bargaining on pay. The IWGB argues that this arrangement with GMB Union does not change Deliveroo’s working practices, as the riders are still classified as self-employed contractors and are therefore not eligible for sick pay or holiday pay. IWGB’s case has now been escalated to the Supreme Court. The date for the hearing has not yet been set.

11. UNISON appeal re protection from disciplinary action: In Mercer v Alternative Future Group Ltd and another (Secretary of State for Business, Energy and Industrial Strategy Intervening) [2022] EWCA Civ 379, the Court of Appeal held that whilst employees participating in official industrial action are protected under TULR(C)A against dismissal, the legislation does not prevent employers from imposing other disciplinary sanctions, such as suspension or a deduction of bonus. It was noted that this might place the UK in breach of Article 11 of the European Convention of Human Rights (freedom of assembly and association). In November 2022, the Supreme Court granted permission for UNISON to appeal and the hearing is expected to take place in 2023. Therefore, as things currently stand, TULR(C)A does not protect workers from being subjected to a detriment other than dismissal for having taken part in industrial action but there may still be other legal protections available (such as constructive dismissal). Watch this space for potential changes in the law.

From public to private?

The focus during 2022 and continuing into 2023 has largely been on the public sector. However, as we have highlighted in our previous blogs, there continues to be a material increase in the number of private sectors facing requests for trade union recognition and improved collective employee engagement. The examples cited above show how the trend is moving more quickly into the private sector. As we move fully into 2023, employers across all sectors should be evaluating their workforce ‘climate’.  It is critical that employers have worked out a strategy in advance for responding to any approaches by employees for recognition/collective bargaining or even a more informal ‘seat at the table’ to discuss workforce matters.