An employer's guide to Trade Union rights

Introduction

The role and power of the Trade Unions, for a variety of reasons, decreased throughout the early 1990s to the mid 2000s and many line managers will not have much experience of the rights that local officials (trade union representatives or staff representatives) have or can exercise. This note outlines the rights which exist for the trade union representatives of those employers with a recognised Trade Union.

Collective Bargaining

Where there is a recognition agreement in place, and depending upon the type of agreement, the Trade Union will wish to conduct collective bargaining on behalf of employees within the “bargaining unit” (see below) in respect of, amongst other matters:

• Terms and conditions of employment (pay, holidays, sick pay schemes, etc.);
• Matters of discipline or grievance;
• Allocation of work between individuals of groups;
• The membership or otherwise of Trade Unions; and
• Facilities for officials.

This is a non-exhaustive list and employers may be approached by trade union representatives to discuss a multitude of issues under this general headline.

Unless recognition has come about through the statutory recognition process, the bargaining unit will have been agreed between the parties at the time when the formal recognition agreement was entered into, as will the subject areas the agreement will cover. In the event that the arrangements within the organisation are long standing, then it is recommended that the provisions contained within the agreement are revisited with a view to formalising the position based upon where the business is today, as opposed to where it was historically. Bargaining units can vary from being extremely wide, e.g., all employees of XYZ organisation to the very narrow e.g. “this agreement is confirmed to being applicable to those personnel who work in the warehouse”.  It should be noted that the example of the “warehouse” may cause difficulties as the question arises “who works in the warehouse?”. Will this cover the manager who is physically there, the lorry driver who is a transient visitor or just the people who stack shelves or drive forklift trucks? At the outset, therefore, clarification is necessary as to who exactly is party to the agreement. Also, if an employee, for example, transfers out of the workplace do they remain a party to or covered by the collective agreement and any subsequent negotiated terms?

Collective bargaining

Having established the bargaining unit, the parties must then agree how many trade union representatives should be appointed. Again, in the event an agreement was entered into a number of years ago, it is recommended that the situation is reviewed and amended as appropriate. There are no 'hard and fast' rules as to how many representatives are appointed although many employers and Trade Unions believe a “felt fair” figure would be one representative to approximately 40 employees. This may depend on a wide variety of factors, for example: 

• The production process (numbers on each line, departments in the business, etc.);
• Is there a distinct permanent night shift?;
• Are home workers an issue?;
• Does the bargaining unit have dispersed sites?; and
• Are different “grades” of personnel involved in the bargaining unit?

Once the number of representatives has been determined, the next stage in the process is to consider how they are appointed and this, in reality, is a matter for the Trade Union concerned. However, as the employer you may stipulate that the appointee must have an acceptable disciplinary record, a good time keeping record, an acceptable attendance record (taking into account any disability or long-term health condition) and a required length of service. It should be made clear in the collective agreement what criteria the organisation will apply before it accepts the appointment of the proposed representatives.

Training

It is not unreasonable for new representatives to request that they receive training in order to be effective in their role (Section 17 of the ACAS Code of Practice No.3 gives guidance on such matters). In any event there is a right to a reasonable amount of time off for training for Trade Union representatives where that training is relevant to the duties they are carrying out and is training that is approved by the T.U.C or the representative’s relevant independent Trade Union. Typically, an initial training course run by the T.U.C. will give the representative an understanding of their role, duties and responsibilities. It is not unknown, however, for representatives to request release for courses on a regular basis. As an employer, you do not have to accept every request. Agreement will depend upon a number of factors:

• Has the representative taken on additional responsibilities?;
• Is it the first time they have been involved in a redundancy exercise requiring consultation? (In this context may wish to ensure that representatives are fully trained to play their important part in this process); and
• Are there any significant legislative changes which they need to be aware of?

Training is considered as a “duty” and would therefore attract payment for the participants at their normal rate. Some courses are carried at weekends, but, as this is not necessarily when people normally work, it would not attract any payment. This is because the representative is only entitled to be paid for the time that they would ordinarily have been working. Note, however, that if the representative is a part-time worker and attends a full time course, that representative should be paid on the same basis as a representative who is a full time worker.

It is good practice to allow relevant training to take place as informed representatives will generally be easier for the organisation to work with and will have a better understanding of the wider issues facing business.

Activities of representatives

Trade Union Representatives are entitled to a reasonable amount of time off for to carry out their duties.  This time off is paid and covers the following:

• Duties concerning negotiations with the Company on matters covered by the recognition agreement;
• Duties concerning any other functions that it has been agreed by the Company that the representative can carry out; and
• Duties in relation to consultation on redundancy and information and consultation under TUPE.

Again, the right is to a reasonable amount of time off and guidance can be found in the ACAS guides on trade union and employee representation.

Separate from trade union duties are trade union activities. An employee who is a member of a recognised Trade Union is allowed reasonable time off, during their normal working hours to participate in union activities; for example, when staff meet to discuss and vote on the outcome of pay negotiations with the employer. For a member acting as a representative, activities include attendance at branch, area or regional meetings where union business is being discussed, meetings of policy making bodies such as the annual conference, or meetings with full time officials where a workplace matter is being discussed.

The significant difference between an 'activity' and 'duty' is that there is no statutory duty to pay wages/salary when employees (members or representatives) are carrying out an activity. Employers should make it clear what they will or will not pay for. Some employers:

1. Distinguish when payment for carrying out an activity will or will not be made; for example, voting on a pay deal may well be an occasion where payment is not an issue for obvious reasons;
2. Accept or agree to representatives being paid for attendance at a conference every other year; or
3. Agree that representatives attending training courses over a weekend might take days off in lieu.

Requesting time off

Representatives (or indeed trade union members) who wish to take time away from their work station should provide their line manager with as much notice as possible and give details of:

• The purpose for such time off;
• The intended location;
• The time and likely duration of the meeting; and
• The syllabus, if it is a training event.

The granting of time off is at the discretion of the employer (taking into account the employee relations atmosphere at the time). Relevant considerations include:

• How reasonable is the request? (How long is the meeting likely to last? Where is it to be held? Why is it needed? What are the objectives?);
• Who else is due to attend? (Is the particular employee making the request integral to the meeting?);
• Can production/operational needs be covered?; and
• Are there any safety implications?

Many employers have a system whereby a form is completed each time a representative wishes to attend a meeting or wants to leave the work station to deal with union business. It would detail whether permission has been granted, and any reasons for refusal. This approach has a number of benefits:

• The representative, if they so believe, can use it as evidence that a particular manager is being unreasonable in refusing a request (this is also important for the company as any issue which manifests itself can be rebutted, and any management training needs in respect of requests for time off can be identified);
• It will log the amount of time being taken by the representative to carry out their duties. If this is excessive, there may be the need for a deputy, but if hardly any time is spent on Union business, the organisation may question the requirement for such a position; and
• A check is generated to establish whether time slots which have been allocated are being adhered to; where 15 minutes have been agreed but have stretched to an hour, time away can be tracked to ensure this is not a common occurrence.

In the event the organisation has sophisticated recording systems the cost to the business of “Union duties” can be calculated over a year and used for a variety of purposes.

For organisations which have senior trade union representatives covering a large number of employees, it is useful for the recognition agreement to give an indication of the amount of time allowed for union duties in order to ensure they do not become full time positions (see below).

It is important to note that public sector employers must annually report and publish trade union 'facility time' (i.e., time off taken to carry our trade union duties and activities). Reporting is mandatory if the organisation had 49 or more full-time equivalent employees during any seven months of the relevant period (1 April to 31 March each year). Otherwise, reporting is voluntary. For more information, see the government website.

For a model document for recording time off, see SAMPLE RECORDING SHEET FOR TIME OFF FOR TRADE UNION DUTIES.

The timing of work place meetings can be important. For example, if the accepted procedure is that the meetings are allowed in the last 30 minutes of a shift or during the final hour of the working week a degree of control can be maintained. Conversely, meetings scheduled for 9:00am may be inclined to overrun, causing operational issues. 

As indicated above, the granting/refusing time off request may, in certain circumstances, generate significant issues and area of dispute. For this reason an organisation should consider stabilising a formal agreement. This can assist by:

• Ensuring a minimum level of misunderstanding;
• Enabling better planning to take place;
• Ensuring for equitable treatment across the business;
• Clarifying the amount of time off which will generally be granted (although this may change dependant on circumstances);
• For what reasons time off can/will be granted;
• The maximum amount of time allowed for training;
• Under what circumstances time off be paid for; and
• The process to be employed in making a request.

Disclosure

In the event that you recognise a Trade Union for collective bargaining purposes, there is a general duty to disclose information so as not to impede, to a material extent, the bargaining process. It should be noted that there are a number of caveats to the disclosure requirements. You do not have to provide information which:

• Was given to you in confidence;
• Relates to an individual (unless consent has been given);
• Would cause substantial injury to the undertaking, e.g., pricing policies, proposed investments or tender prices;
• Was obtained for legal proceedings; or
• Causes work/effort that is disproportionate to the value of the information.

As previously described, a range of matters can be the subject of collective bargaining. It follows that the information which is potentially disclosable is equally as wide ranging. Examples include: 

• Pay and benefits – the structure of the pay system in operation, earnings per hour worked in different pay groups, grades, gender differences, the total pay bill and levels of overtime;
• Conditions of service – policies on recruitment, training, equal opportunities, health and safety;
• Headcount and workforce profiles – numbers employed, by a grade or age, planned changes in output, expansions or working methods; and
• Financial – cost structures, profit/loss, assets/liabilities and outstanding loans.

Both the Trade Union and the employer have certain responsibilities under the disclosure provisions. The former should identify and request the information in good time and well before the negotiations commence, and the request should be as precise as possible and explain why the information is required.  Equally, and in response to this, the employer should be open and transparent. If a request is refused, the Trade Union should be told the reasons why the employer cannot comply. This is important because, in the event of non-disclosure, the Trade Union can refer the matter to the Central Arbitration Committee which can ultimately make an award against the employer, in the event of non-compliance. Finally, the information provided should be in a form and style which is readily understandable.

Picketing

There are statutory provisions which set out the basic rules that must be followed in order for any picket to be lawful. The principle issues are that the picket is held 'in contemplation or furtherance of a Trade dispute' and is carried out by an employee at or near his place of work. The objective must be to peacefully obtain or communicate information, or, to peacefully persuade others not to work.

A 'trade dispute' effectively means issues arising out of those matters which have been the subject of collective bargaining, for example, pay, terms and conditions, etc.

The picket has to be manned by your employees or a Trade Union official who is representing those individuals. However, if participants are picketing after having been dismissed, and the dismissal is the reason for the dispute, the picket will be lawful, even though the participants are no longer employees. It should be noted that if the individuals involved obtain or have obtained alternative work with another employer, they will lose this protection.

The picket has to be “at or near” the place of employment. In practice, picketing would normally take place at entrances to or exits from the site, factory or school. This facility is not extended to the entrance or exit of a parent company; the picket has to be at the place of the individual’s employments.

Picketers can state their case to those entering or exiting the site such as other workers, lorry drivers and visitors, but they must carry out this function peacefully. Civil proceedings can be brought against picketers who harass others, obstruct an entrance/exit, interfere with (through noise or having a large crowd) the right of the employer’s neighbours or trespass on neighbouring property. Prosecution could also be made if a criminal act takes place, e.g., assault.

Mass picketing is now relatively uncommon, although it may still occur. The ACAS Code of Practice suggests that the maximum number at any one entrance or exit should not exceed six. In fact, the police have special powers to disperse groups of more than twenty people.

Protection from Detriment and Dismissal

As well as rights for trade union members, the law also offers employees protection from suffering discrimination or being dismissed on trade union grounds.  It is therefore unlawful for a company to refuse to employ someone or dismiss them for being a union member and it is also automatically unfair to select an employee for redundancy on trade union grounds.  Neither is it permissible for a company to prevent or deter an employee from participating in trade union activities at an appropriate time (i.e., during rest breaks or times when the company has agreed for the activity to be undertaken) or to penalise them for having done so.

Where an employee brings a Tribunal claim alleging that they have been dismissed on union grounds, the Tribunal can order that the employee be re-employed until the hearing takes place. This is known as 'interim relief'.

Other Interested Personnel

Throughout this note, we have referred specifically to trade union representatives, but the same principles also apply to health and safety representatives together with those people designated as Union learning representatives.