Collective rights: five key changes of 2023

After a relatively quiet few years, the number of changes (both actual and planned) to trade union rights has accelerated in 2023. There have also been some important developments in the courts.

Minimum Service Levels

The most prominent piece of trade union legislation has been the Strikes (Minimum Service Levels) Act 2023. That gave the Government power to set minimum service levels during industrial action in seven different sectors. The necessary regulations, code of practice and guidance was put in place in early December for ambulance services, border security services and passenger rail transport.

Consultation has been issued for hospital services, fire and rescue services and education, but the necessary regulations to impose these standards have not been made at the time of writing.

At its 2023 conference, the Labour Party committed to repealing these provisions if it comes into power after the next general election.

Agency workers and industrial action

Last year the Government acted to repeal regulations, which had prevented employment agencies from suppling agency staff to cover for striking workers. However, the regulations which provided for this repeal were declared unlawful by the High Court in July 2023, because the Government did not consult adequately about this change.

In early December the Government launched new consultation with a view to reinstating the repeal, which closes on 16 January 2024.

Scope of protection from detriment for union-related activities

As the law currently stands, there is no statutory protection for workers who take part in official industrial action if they are subjected to a “detriment” by their employer, short of being dismissed, because of their participation.

The law is based on a long-standing interpretation of a provision in our trade union legislation which protects workers against being subjected to a detriment for taking part in trade union activities at an appropriate time. This interpretation - ie to the effect that trade union activities in this context doesn’t extend to industrial action - is being challenged before the Supreme Court by Fiona Mercer, a support worker at a health and social care charity.

The hearing took place on 12 and 13 December 2023 and we are expecting a decision a few months into 2024.

New check-off rules in public sector

In November 2023 a commencement order under the Trade Union Act 2016 was made. This means that on 9 May 2024 new rules will come into effect in relation to “check off” arrangements in the public sector. These are agreed arrangements with the employer whereby union subscriptions are collected by making direct deductions from the members’ wages via the payroll.

Under the new rules, employers must be given an alternative way of paying their union subscriptions and the union must make a “reasonable payment” to reflect the cost of operating the check-off arrangements.

The Labour party has committed to repealing the Trade Union Act 2016 if it forms the next Government. That would mean an end to these new check-off requirements, as well as other provisions in the Act which have already been brought into force. These include the tighter rules on industrial action ballots which have been in force since 2017.

Compulsory union recognition

Deliveroo riders have been engaged in a long battle to establish worker status, which would have enabled them to trigger the compulsory union recognition procedures in trade union legislation. They lost their case before the Central Arbitration Committee in 2017, and successive appeals have been dismissed, culminating in a ruling by the Supreme Court in November 2023. The issues in the litigation narrowed during the appeal process, so that it became a debate about the meaning of worker for the purposes of the European Human Rights Convention, rather than under domestic law.

Not only did the Supreme Court rule that the CAC had been entitled to find the riders did not have worker status, but it went on to find that Article 11 of the Convention did not mandate compulsory union recognition.

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