Court of Appeal rules employers must consult with trade unions on workplace matters


The Court of Appeal has allowed an appeal from trade union Unison, which will mean employers will be obliged to consult with trade unions around any workplace issues that could affect employees, for example working hours and holiday pay.

The verdict was delivered as part of an unfair dismissal case brought by former park police employees against their previous employer, the London Borough of Wandsworth. The case also looked at how article 11 in the European Convention of Human Rights, which relates to the right to freedom of association and the ability to join a trade union to protect personal interests, impacts on the Trade Union and Labour Relations (Consolidation) Act 1992. The 1992 act excludes employees in police service and their representatives from redundancy consultation rights.

The case was originally brought to the Employment Tribunal in January 2013, which agreed with Unison. However, the Employment Appeal Tribunal subsequently disagreed with this decision in December 2015. The case was then brought to the Court of Appeal.

The Court of Appeal ruled that Unison could pursue a claim on behalf of the employees who were entitled to a consultation, stating that trade unions should be able to consult on matters that impact on their members’ working conditions.

Currently, trade unions are only consulted when the law requires, for example, in Transfer of Undertaking (Protection of Employment (Tupe)) regulations or in redundancy cases.

The court documents stated: “A right of the kind conferred by sections 188-192 of the 1992 Act, that is, (in the case of the union) to be consulted, and (in the case of the employees) to be consulted for, falls squarely within the ‘essential elements’ protected by article 11. There may be room for argument about whether they fall within the definition of ‘collective bargaining’ in the narrow sense of that term. In traditional industrial relations terminology, at least in the UK, a distinction tends to be drawn between negotiating rights and consultative rights, and the term ‘collective bargaining’ tends to be reserved for the former; likewise the core content of collective bargaining tends to be thought of as matters like pay, hours and holiday. But the question is one of substance rather than terminology. The rights conferred by sections 188-192 of the 1992 Act are collective in character, since they involve the consultation of a trade union about the prospective dismissal of at least [20] employees.

“We see no difficulty in describing the preservation of the employment relationship or the terms on which it is ended as an aspect of ‘working conditions’, broadly understood; but even if that is not so the matters in question are of equal importance to ‘working conditions’ in the narrower sense.

“Consultation about mass redundancy seems a paradigm example of a matter affecting members’ interests.”

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Dave Prentis, general secretary at Unison, added: “It means that employees in any workplace where there’s a union will now benefit from greater protection at work.

“The message to bosses is they will have to treat their staff more fairly over pay and working conditions. If they fail to consult unions, then they will be acting unlawfully and could be taken to court.”