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Trade unions on the decline?

Trade unions saw a large decline in their membership last year (losing 275,000 members last year) and reducing their overall numbers to 6.2 million according to the Office for National Statistics. The largest decreases were in the pubic sector with union membership falling by 209,000 to 3.6 million. However, there was also retraction in private entities by 66,000 to 2.6 million.

Trade union leaders have plenty to say about the reason for the decline. They have pointed to the Conservative government, which they say has a policy of “shrinking the union base” and austerity. They have said that cuts have meant a loss of good jobs being replaced by a large proportion of insecure jobs. Of course, the trade unions themselves might not be entirely without blame. The decline may represent some trade union members’ unhappiness with what their trade union is offering, or feeling that their trade union is not useful in today’s society. There have been several very public trade union actions in the past few years including the rail strikes and junior doctors strikes. The duration and on-going nature of the rail strikes, have proved unpopular with the public. There were challenges in the junior doctors dispute to the trade unions’ approach to spin, which some say resulted in a reluctance to resolve the issues amongst doctors. Taking industrial action aside, issues such as the gig economy also present a challenge to trade unions. Having a flexible workforce, often without a fixed base, makes it difficult for trade unions to reach out with their members. This is particularly so, if trade unions do not embrace social media and other technological advancements. Trade unions are not generally known for being at the forefront of developments, but that may need to change, if they do not want to see further decline. Employers who recognise trade unions may see this decline as a positive development, but given that trade unions may be feeling the need to emphasise their worth, it may not all be plain sailing.

Trade unions on the decline?

Older and wiser?

After a call from Andy Briggs, the government’s champion for older workers to increase the number of mature workers by 12% by 2022, a group of businesses: Aviva, Atos, Barclays, the Co-operative Group, Home Instead Senior Care, the Financial Services Compensation Scheme, Mercer and Walgreens Boots Alliance, have publically committed to tackling a potential skills gap by recruiting more individuals over 50 years old. Both transparency and target setting are quite fashionable at present following gender pay reporting. However, whether there will be any real development in this area remains to be seen. With Brexit on the horizon, and uncertainty about any restrictions on free movement, the pool of home-grown talent in their 50’s and older should sensibly be considered. Notwithstanding this, there is some tension between this drive and the March 2017 Advocate General’s opinion in the European case of Fries v. Lufthansa CityLine GmbH C-190/16 that an age limit of 65 imposed on EU commercial pilots is not discriminatory. In that case the Advocate General felt that the age limit was both appropriate and necessary to achieve the aim of air traffic safety. He said that there could hardly be any question that capability declined with age. For many working in non safety critical areas employers should be able to manage capability issues by pro-actively applying their capability processes at an early stage.

Older and wiser?

Sisters doing it for themselves?

The world of work is changing. According to a combined study by Oxford Ecomonics and the online retailer notonthehighstreet.com, female entrepreneurs are leading the way in shunning normal working hours. Many have set up their own businesses in an attempt to juggle home and work commitments. They enjoy having flexibility to juggle home and work life, without reverting to part time work and a consequent reduction in their finances. Employers are advised to think about how they can adapt to changing work habits to recruit and retain the best talent.

The full report can be found here http://www.notonthehighstreetpresscentre.com/wp-content/uploads/Noths_Report_Release_London.pdf

Sisters doing it for themselves?

A growing gig economy

In Boxer v. Excel Group Services Ltd ET/3200365/2016, Mr Boxer brought a successful claim against Excel Group Services Ltd (Excel) for one week’s holiday pay. Mr Boxer had been a cycle courier for Excel since September 2013. His contract described him as a “subcontractor” and he was registered as self-employed with HMRC. Excel did not pay Mr Boxer when he took a week’s holiday and so he decided to claim for his holiday pay.
The Employment Tribunal had to decide whether Mr Boxer was a “worker” under section 230(3)(b) of the Employment Rights Act 1996 and regulation 2(1) of the Working Time Regulations 1998 (SI 1998/1833) in order to determine whether his claim could proceed. The Employment Tribunal concluded that Mr Boxer was a worker. The key considerations for the Employment Tribunal in determining this were:

  • he signed a contract because he had no choice: there was no negotiation or tendering process;
  • he worked five days a week, nine hours a day, and had to be available during the working day;
  • while he enjoyed some flexibility in respect of time off or changing hours, this had to be by arrangement and with notice;
  • he was paid a fixed rate for his work, which was non-negotiable;
  • he did not have to bear the cost of any damage in transit or pay insurance; and
  • not only was he expected to work and in turn was entitled to expect a steady stream of jobs, he was also expected to stand by between jobs and wait for the next one.

Mr Boxer’s evidence in this case was uncontested as Excel had gone into liquidation. Nonetheless, the case is a further example of a (first instance) claim against a courier company and application of the Court of Appeal decision in Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51. To see our previous blog post on Pimlico Plumbers Ltd v. Smith [2017] EWCA Civ 51, please click here.

A growing gig economy

Its all change in employment law in April…

April is a key month for employment law changes and this April is no different. 6 April is “D-Day” for a number of significant changes. By way of reminder:

1 April

  • National minimum wage – the National Living Wage (for workers aged 25 and over) increased from £7.20 to £7.50 and there were also changes in the other bands.

Weeks commencing after 2 April

  • Cap on a week’s pay  – the cap on a week’s pay (which is used in statutory redundancy pay calculations for example) increased from £479 to £489.

5 April and onwards

  • Gender pay gap reporting – employers with 250 employees should have collated their relevant data on the first annual “snapshot date” yesterday. Today the work on calculations can begin! Private employers have a 12 month window (4 April 2018) before calculations must be published on the employer’s website and the relevant government website. Remember that public sector employers have a earlier snapshot date (31 March), their calculations need to be published by 30 March 2018 and every four years thereafter.

From 6 April

  • Unfair dismissal compensatory award – the statutory cap increases from £78,962 to £80,541.  Don’t forget that the cap will be one year of the employee’s gross salary if lower.
  • Apprenticeship levy – UK employers in the public and private sectors with annual wage bills of £3 million or more have to pay their monthly levy payments;
  • Immigration skills charge – employers who sponsor workers under tier 2 will have to pay £1,000 per year, or £364 if they are a small employer or a charity;
  • IR35 – new rules apply to public authorities paying personal service companies or other intermediaries. The public authority will need to make tax and National Insurance deductions as appropriate;
  • Salary sacrifice – relief on benefits in kind provided via salary sacrifice arrangements is being scaled back for benefits entered into from today.
Its all change in employment law in April…

Has the Court of Justice of the European Union opened the door for employers to discriminate against employees who wear religious dress?

Have the recent Court of Justice of the European Union (CJEU) cases of C-157/15 Achbita, Centrum voor Gelijkheid van kansen en voor rascismebestrijding v. G4S Secure Solutions and C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole Univers opened the door for employers to discriminate against employees who wear religious dress?

Read our full article on HR Zone at: http://www.hrzone.com/perform/business/do-recent-legal-decisions-mean-employers-can-discriminate-on-the-basis-of-religious

Has the Court of Justice of the European Union opened the door for employers to discriminate against employees who wear religious dress?

Safeguarding mental health: essential for your construction workers, good for your business

The UK’s mental health is currently under scrutiny with high profile dignitaries, businessmen and organisations all helping to raise awareness of the problems it can cause in the workplace. Many campaigners come from the construction industry – an industry not renowned for its workers’ empathy and compassion. Like diversity in the construction industry, which we commented on last month, mental health has, traditionally, been one of those topics everyone avoids both on and off site. But this is not a new topic for construction: back in 2014, Building considered why talking about mental health is taboo in construction. Building focused on the hidden health and safety risks that mental health problems pose in the workplace which can be just as serious a threat to workers as physical injuries and fatalities.

Click here for the full article from our Construction team: https://www.dentons.com/en/insights/articles/2017/march/15/safeguarding-mental-health-essential-for-your-construction-workers-good-for-your-business

 

Safeguarding mental health: essential for your construction workers, good for your business

Is discrimination in respect of same-sex marriage ever permissible?

Facts

In Reverend Canon Pemberton v. Former Acting Bishop of Southwell and Nottingham, Canon Pemberton, a Church of England priest, entered into a same-sex marriage.

The Church of England opposed the Marriage (Same Sex Couples) Act 2013 and held that same-sex marriage would not be possible according to the rites of the Church and was contrary to its doctrines. It had issued guidance to this effect. Prior to marrying, Canon Pemberton had been warned by the Bishop of Lincoln that proceeding with his marriage may leave him vulnerable to complaint.

Approximately two months after his marriage, Canon Pemberton applied for a salaried chaplaincy position at Sherwood Forest Hospitals Trust. One of the conditions of his job offer was that he obtained an Extra Parochial Ministry Licence from the Bishop of Southwell and Nottingham (the Bishop). The Bishop refused to grant the licence and revoked Canon Pemberton’s Permission to Officiate with immediate effect, on the grounds that Canon Pemberton was in breach of his duty of canonical obedience as he was in a same-sex marriage.

Canon Pemberton subsequently brought claims of direct discrimination on the grounds of sexual orientation and/or marriage and harassment related to sexual orientation.

Decision

The Employment Tribunal found that the Licence was a “relevant qualification” within the meaning of, and that the Bishop was a “qualifications body” under, sections 53 and 54 of the Equality Act 2010, as the Bishop had the power to refuse to grant the qualification. This meant that the Bishop’s actions were potentially discriminatory. However, the Tribunal held that the religious occupational exception under Schedule 9 of the Equality Act applied. This applies where the employment in question is for the purposes of an organised religion and there is a requirement on employees to comply with the doctrines of that religion. So, because the purpose of the employment (even though it was with the hospital trust, not the Church of England directly) was religious, and his same-sex marriage was in contradiction to the occupational requirement that employees follow the doctrines of the Church of England, the exception applied.

The Employment Appeal Tribunal upheld this decision but it observed that the case was suitable for leave to be given to the Court of Appeal.

Comment

This decision demonstrates the interplay for employees of religious organisations between their rights under equality legislation and the doctrines of religion. The facts of this case are particularly difficult as the ultimate employer would have been a non-religious institution, namely, the hospital trust. It is important to note that the religious occupational exception will not be applicable to most employers.

Is discrimination in respect of same-sex marriage ever permissible?

Judges discriminated against in judicial pension scheme reforms

Six High Court judges have succeeded in their claims against the Ministry of Justice about the introduction of the judicial pension scheme reforms. All six judges alleged that they had been discriminated against on the grounds of age, and two claimants also alleged that they had been discriminated on the grounds of sex and race respectively. The changes at the heart of the complaints were to the judicial pension scheme and affect more than 200 judges.

A summary of the two pension schemes is provided below:

Old scheme (before 2012) Current scheme
  • No employment contributions
  • Income of a 40th of the judge’s final salary multiplied by that judge’s length of service
  • Final lump sum on retirement after the age of 65 two and a quarter times the judge’s annual rate
  • Contribution rates due to rise to 8% of pensionable pay
  • Income of 43rd of the judge’s final pensionable pay per year of service
  • No final lump sum payment

In 2015, as part of transitionary arrangements, older judges were permitted to keep more generous pension arrangements (depending on their age, they either remained in the old scheme or remained in the old scheme for an extended period). At the same time, their younger colleagues were required to transition straight into the current, less generous, pension scheme.

The Employment Tribunal found that the Ministry of Justice and the Lord Chancellor discriminated against the younger judges and that the discrimination could not be justified as a proportionate means of achieving a legitimate aim. The Tribunal noted that the younger judges compelled to join the scheme were the worst affected.

Broader concerns have been expressed about individuals being dissuaded from applying for judicial positions because of issues over remuneration and other terms and conditions.

 

Judges discriminated against in judicial pension scheme reforms

Electronic balloting: are trade unions about to leap into the digital age?

Back in the spring, when the Trade Union Act was in its bill stage, the House of Lords proposed an amendment for an electronic balloting review and piloting scheme. The amendment was incorporated into Section 4 of the Trade Union Act (which became law on 4 May 2016). This provision gave the Secretary of State six months to commission an independent review on the delivery of methods of electronic balloting (for ballots before action by a trade union). The fact that the review was announced on the last day available to the Secretary of State (3 November 2016) perhaps suggests that the government currently has bigger fish to fry. However, the former Chief Fire and Rescue Adviser for England, Sir Ken Knight, has now been tasked with looking at:

  1. risks of interception, impersonation, hacking, fraud, or misleading or irregular practices associated with electronic balloting;
  2. whether systems can be safeguarded to reduce risk of intimidation of union members and protect anonymity of voters;
  3. security and resilience of existing practices of balloting union members; and
  4. the aims of the Trade Union Act to ensure that strikes and related disruption to the public only occur as a result of the clear, positive decisions of those entitled to vote.

Sir Ken Knight now has until December 2017 at the latest to prepare his report. Once the report is presented to the Secretary of State, she will need to consider the report and publish her response to it. If there have not already been pilot schemes put in place by that time, it is likely that they will follow. Further, the Act requires the Secretary of State to consult relevant organisations, including professionals from expert associations, to seek their advice and recommendations. All this means that change is unlikely to happen quickly.

So will the trade unions be forced into the digital age by electronic balloting? Perhaps. It seems likely that there will be workable solutions to many of the issues highlighted above. However, by the time electronic balloting is effective, trade unions are likely to have been forced to modernise significantly in light of other challenges (including the increased use of agile and flexible working). Therefore, it is unlikely to be much of a leap for them.

Electronic balloting: are trade unions about to leap into the digital age?