International > U.K. - HR Care Legal Guide > Trade Unions - An Overview - United Kingdom > Individual Rights Conferred on Employees Who are Union Members - United Kingdom

Individual Rights Conferred on Employees Who are Union Members - United Kingdom

 

Individual Rights Conferred on Employees Who are Union Members

Members of trade unions have various individual rights conferred on them by statute. Aside from the right to participate in union ballots as part of the union's internal decision-making process (such as ballots over industrial action), there are a number of other statutory rights which regulate the relationship between union members and their employers. The principal statutory rights are set out below.

The "Closed Shop"

  • Section 137(1) TULRCA 1992 provides that:

    "…It is unlawful to refuse a person employment:
    1. because he is, or is not, a member of a trade union, or
    2. because he is unwilling to accept a requirement:
      1. to take steps to become, or cease to be, or to remain or not to become, a member of a trade union, or
      2. to make payments or suffer deductions in the event of his not being a member of a trade union…"
  • An employer which has a policy of employing only those affiliated to a trade union is said to be operating a pre-entry "closed shop" and any potential employee who is unlawfully refused an offer of employment on these grounds may, within three months of the conduct complained of, present a complaint to an employment tribunal. If the tribunal makes a finding in the applicant's favour, it is empowered to make an award of compensation (currently capped at £50,000) which, broadly speaking, would be calculated by reference to its estimate of what the employee's potential earnings might have been, had the unlawful condition not been applied by the employer.

Dismissal on Union grounds

  • Section 152 TULRCA 1992 provides that:

    "…the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee:
    1. was, or proposed to become, a member of an independent trade union, or
    2. had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or
    3. was not a member of any trade union…or had refused, or proposed to refuse, to become or remain a member…"
  • The ERA 1999 extends protection of those who take lawfully organised industrial action. The new provision provides for a "protected period" which means that an employee who takes part in "protected" industrial action, and to whom one of the following circumstances applies will be regarded as having been unfairly dismissed. The circumstances are:
    • if the dismissal takes place within a period of 8 weeks beginning with the day on which any employee involved in the industrial action took such action, whether or not at the date of dismissal the employee is still engaged in industrial action;
    • if the dismissal takes place after the period of 8 weeks has elapsed, but the employee had ceased industrial action before the 8 week period ended; or
    • if the employee has failed to end the industrial action before the 8 week period elapsed and the employee has not followed all reasonable procedural steps to resolve the dispute.
  • "Protected" industrial action refers to action which the employee is induced to commit by his union.
  • The statutory regime governing the law of unfair dismissal, under the Employment Rights Act 1996, is discussed elsewhere. However, important points to bear in mind, in the specific context of union related unfair dismissals, are that:
    • There is no minimum qualifying period of employment to enjoy the statutory protection (in contrast to the usual one year's continuous employment): an employee is protected from day one;
    • There is no upper age limit;
    • Dismissal on trade union grounds is automatically unfair. Thus, there is no defence of "reasonableness" open to the employer; and
    • In addition to the compensatory award for future loss of earnings (currently capped at £53,500), there is a maximum basic award of £7,800 and in particular circumstances, the tribunal may order a special award of up to 104 weeks' pay.

Subjection to detriment short of dismissal

  • With effect from 25 October 1999, section 146 TULRCA 1992 provides that:

    "…an employee has the right not to be subjected to any detriment [short of dismissal] as an individual by any act, or any deliberate failure to act, by his employer if the act or failure takes place for the purpose of:
    1. preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so,
    2. preventing him or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or
    3. compelling him to be or become a member of any trade union…"
  • From 6 June 2000 the right has been extended, so as to prohibit detriment on the grounds relating to recognition or de-recognition, for example supporting or not supporting union recognition or actions to secure or prevent de-recognition etc.
  • An employer who takes such action against an employee is liable to face a claim in the Employment Tribunal which may award compensation in the event of an adverse finding. It should be noted that the compensation the Tribunal can award is unlimited. It is up to the employer to demonstrate the purpose for its act or omission with a view to setting up a defence to the complaint. Section 148 TULRCA 1992 allows the employer to argue that its purpose in taking the action (or failing to act) was to further a change in its relationship with all or any class of its employees, rather than (or as well as) to discriminate on union grounds. If there is evidence in support of this argument, the Employment Tribunal is obliged to treat the furtherance of the employer/employee relationship as the purpose of the action or failure to act (unless it also concludes that no reasonable employer would have adopted the same position), with the result that the complaint will fail. Prior to the recent amendment of this part of the Act, it was still arguably open to employers to discriminate by omitting to act on grounds of trade union membership. It will be interesting to see how the law develops in this area, as this particular section of the legislation has in the past been the subject of litigation in the appeal courts.

Time off work

An employer must allow an employee, who is a member of a recognised independent trade union, to have time off work (in most cases unpaid) in order to participate in certain trade union activities (as defined in the Act) during working hours. The right extends to taking time off only for reasonable purposes and for reasonable lengths of time. An employee who is been refused time off work to participate in such trade union activities may present a claim to the Employment Tribunal, which may in turn award limited compensation for losses caused to the employee.

Accompaniment at internal hearings

The Employment Relations Act 1999 has introduced for the first time a right, at his or her reasonable request, for a worker (not necessarily an employee) to be accompanied at disciplinary and grievance hearings either by a colleague or by a trade union representative of their own choice. This applies irrespective of whether or not the employer recognises the union in question. This is a right to individual, not collective, representation and although the representative may address the panel, he or she may not answer questions on the employee's behalf

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