Union membership: rights of members and non-members - part 2

URN No: 06/558/A1

This is part 2.  For part 1 please go to:

Contents - part 2

• Unfair Dismissal 
• Protection for businesses
• Union labour only and union recognition requirements in contracts
• Industrial action to promote closed shop practices or against non-union firms
  
• Appendix 1
  What is an independent trade union?
• Appendix 2
  Dismissal
• Appendix 3
  People who cannot complain of unfair dismissal or unlawful refusal if rights in the Access to employment and Rights during employment parts of this document are infringed
• Appendix 4
  Obtaining an order of interim relief 
  

Unfair dismissal

What is unfair dismissal?

Dismissal is normally the ending of an employee's employment by an employer with or without notice. However, the term 'dismissal' can also cover other situations such as the employee's resignation in certain circumstances. Appendix 2 gives further guidance.

Who can complain?

Virtually all employees including former employees - whatever their age, length of service or hours of work - can complain to an employment tribunal if they think that they have been unfairly dismissed because of their non-membership of a union or because of their trade union membership or activities or because of their use of union services or their failure to accept an unlawful inducement. Those who cannot complain are, broadly, the self-employed, people employed in the police or armed forces, and share fishermen. More details are to be found in Appendix 3.

A complaint to an employment tribunal must be made by the person whose rights have been infringed. However, if that person dies, a personal representative of the deceased may make an application to a tribunal or continue any proceedings already started.

Making an application

An application to an employment tribunal may be made as soon as the employer has given notice of dismissal. The application should be received within three months of the employee's 'effective date of termination'. This is normally the date when notice of dismissal expires, if a dismissal is with notice, or the date when employment ended if no notice was given.  This time limit will be extended for a further three months where the employee has reasonable grounds for believing that a dismissal or disciplinary procedure (statutory or otherwise) is still in progress at the point where the normal time limit would have expired. Further information on these points is in Unfairly dismissed?

If an application is received after these time limits, the tribunal will consider the complaint only if it thinks that it was not reasonably practicable for the employee to have complained earlier.

Anyone who wishes to complain to a tribunal may obtain an application form ET 1 (E/W) or ET 1 (Scot) which is included in the explanatory leaflet Making a claim  to an employment tribunal available from Jobcentre Plus offices, Citizens Advice Bureaux, from the DTI Publications Orderline on 0845 015 0010, or from the Employment Tribunals Service website.

Interim relief

Employees who complain to an employment tribunal that they have been unfairly dismissed by their employer on the grounds that any of their rights set out in this booklet regarding trade union membership or non-membership,  trade union activities, trade union services or failures to accept unlawful inducement  have been infringed (4) can ask the tribunal for an order for interim relief. This is an order requiring the employer to re-instate the employee and treat him in all respects as if he had not been dismissed or to re-engage him in another job on terms and conditions at least as favourable as those which he would have enjoyed if he had not been dismissed until the tribunal has given a decision on the unfair dismissal complaint or there has been a settlement of it. An order for re-instatement or re-engagement will only be made if both the employer and employee agree.  Where the employer is unwilling to agree to either order or where the employee reasonably refuses to agree to accept an offer of re-engagement the tribunal is required to make an order for the continuation of the contract of employment for the purposes of pay and benefits and the determination of length of service.  Orders for interim relief are made only where the tribunal considers it likely that it will uphold the employee's unfair dismissal complaint at a full hearing.

An application for interim relief must be made to an employment tribunal not later than seven days after the effective date of termination of the employee's employment. Where the employee is complaining that dismissal was because of trade union membership, taking part in union activities, use of union services or for refusing to accept an unlawful inducement,  the employee must also present a signed certificate from an official of the trade union concerned supporting the complaint. Appendix 4 explains in greater detail how to apply for an order of interim relief.

Conciliation

When an unfair dismissal complaint is made to a tribunal, a copy of the application form is sent to the Advisory, Conciliation and Arbitration Service (Acas). Acas conciliators will attempt to assist the parties to reach a voluntary settlement without the need for a tribunal hearing if the parties concerned ask them to do so or if they think that there is a reasonable chance of success. Conciliators can also become involved before a formal complaint has been made to a tribunal at the request of any of the parties concerned. However, it is important to remember that the time limit for applying to an employment tribunal is not extended just because conciliation discussions are taking place.

Voluntary procedures

An employer or a union may have procedures for settling complaints made by employees or members. These sometimes involve third parties as final stage. Where such procedures exist individuals may wish to make use of them and, as explained above, the time limit for applying to an employment tribunal will  be extended because such procedures are used.

In addition, it is unfair to dismiss an employee who is under the normal age limit and has completed more than one year’s continuous service without following statutory dismissal and disciplinary procedures if those procedures apply and if the failure to follow them was wholly or mainly the fault of the employer.   The statutory procedures do not apply to all dismissals, for example industrial action dismissals or constructive dismissals.   

Tribunal hearing

If a settlement is not reached or the application is not withdrawn, the employee's complaint of unfair dismissal will normally be heard by an employment tribunal. The tribunal will then decide whether the dismissal has infringed the right of the employee not to be dismissed. If it finds the dismissal to have infringed these rights it will find the dismissal to have been unfair.

Joinder

An employer who faces a complaint of unfair dismissal may have dismissed the employee concerned as a result of pressure, in the form of actual or threatened industrial action, exercised by a union or other person because the employee was not a member of a trade union. If the employer or the employee making the complaint claims this is so, either of them may make a request to the tribunal for the union or other person concerned to be joined (5) (i.e. brought in as a party) to the proceedings. If the tribunal finds the dismissal unfair and the claim of pressure well-founded, it may make any award of compensation wholly or partly against the union or other person concerned instead of or as well as against the employer. A request by either an employer or a dismissed employee for a trade union or other person in unfair dismissal proceedings to be joined in this way will be granted by the tribunal if it is made before the hearing begins but may be refused if it is not made until after the hearing has started.

Remedies for unfair dismissal

If a tribunal upholds a complaint that an employee's dismissal infringed his rights:

• not to belong to a trade union; or
• not to make a payment in lieu of membership of a trade union; or
• to be or become a member of an independent trade union; or
• to take part in the activities of an independent trade union; or
• to make use of the services of an independent trade union; or
• not to be offered an unlawful inducement; or  
•   not to be chosen for redundancy for one of these reasons;

then it will find the dismissal unfair and explain to the dismissed employee the various remedies which it can award. These are:

reinstatement:

• where the employee wishes to have his job back and the tribunal considers this practicable it may make an order requiring the employer to treat the employee in all respects as if he had not been dismissed;

re-engagement:

• where a tribunal makes no order for reinstatement it may, if the employee wishes and the tribunal considers it practicable, order that the employer, his successor or an associated employer give the employee employment comparable  to that from which he was dismissed or some other suitable employment;

compensation:

• where the employee does not wish to be reinstated or re-engaged, or where the tribunal considers this is impracticable, it will award the employee compensation to be paid by the employer (but see Joinder)   

Compensation

Where a dismissal is unfair because it infringes one of the rights set out in this booklet, special rates of compensation apply. In these cases compensation will be made up of:

• a basic award; the amount of this award depends on the employee's pay, age and length of service and full details of how it is calculated appear in the document Unfairly dismissed? However, where dismissal is unfair because it infringes one of the rights set out in this document, the basic award will normally be subject to a minimum figure. This figure is varied annually in line with the retail prices index (For details of the current limits on payments, see document Limits on payments - Guidance;
• where an employee has been dismissed without statutory dismissal and disciplinary procedures having been used (if failure to follow them is wholly or mainly the employer’s fault) and the amount of the basic award is less than four weeks’ pay, the tribunal will increase it to four weeks’ pay unless it considers that this would result in injustice to the employer;    
• a compensatory award; this award compensates the employee for the actual loss suffered as a result of dismissal in so far as the loss is attributable to action taken by the employer.  The amount of the compensatory award will be increased by at least 10% and up to 50%,where the employer has dismissed the worker without completing the statutory dismissal and disciplinary procedure and where the failure to do so was wholly or mainly the employer’s fault.  Similarly, the compensatory award can be reduced by the same amount where the failure to use the procedure was wholly or mainly the fault of the employee.  Further details appear in Unfairly dismissed?;
• where a tribunal orders the reinstatement or re-engagement of an employee who was dismissed without statutory dismissal and disciplinary procedures having been followed where they should have been, and where failure to follow them was wholly or mainly the employer’s fault, it will award four weeks’ pay to the employee (unless it considers that this would result in an injustice to the employer).  This sum will be deducted from any Additional award of compensation made because the employer has failed to comply with the terms of a reinstatement or re-engagement order; 
• an additional award; this award is payable only where the employer has not complied with an order from the tribunal for reinstatement or re-engagement. The amount of the additional award will be subject to a minimum and maximum figure. These figures are varied annually in line with the retail prices index. (For details of the current limits on payments, see document Limits on payments - Guidance).

A tribunal can reduce any of these awards of compensation if, amongst other things:

• the employee's conduct before dismissal justifies a reduction; or
• the employee has unreasonably refused an offer of reinstatement from the employer, or has unreasonably prevented the employer from complying with an order for reinstatement or re-engagement.

Appeals

An employer or employee may appeal against the decision of an employment tribunal on a complaint of unfair dismissal on a point of law only Anyone who wishes to complain to a tribunal may obtain an application form ET 1 (E/W) or ET 1 (Scot) which is included in the explanatory leaflet Making a claim  to an employment tribunal available from Jobcentre Plus offices, Citizens Advice Bureaux, from the DTI Publications Orderline on 0845 015 0010, or from the Employment Tribunals Service website.

Unlawful deduction of union subscriptions through the check off

Who can complain?

A trade union member whose union subscriptions are deducted from his wages by his employer may make a complaint to an employment tribunal against his employer if he considers that a deduction has been made without proper authorisation.

Making an application

Complaints of unlawful deduction of union subscriptions must normally be received within three months of the payment of the salary from which the deduction was made. (If the complaint relates to more than one deduction, it must be made within three months of the date of the salary from which the last of the deductions was made).

Conciliation and voluntary procedures

As with a complaint of unfair dismissal, ACAS will often seek to settle the complaint through conciliation, and voluntary procedures may be available (see 'Conciliation' and 'Voluntary procedures').

Remedies for wrongful deduction of union subscriptions through the check off

Where a tribunal finds that an unlawful check off deduction has been made, it will make a declaration to that effect. It will also order the employer to pay to the individual the whole amount deducted if the deduction was made without proper authorisation. The tribunal will deduct from the amount that it orders the employer to pay any amount already paid to the employee by the employer.

Appeals

An individual or an employer may appeal to the Employment Appeal Tribunal against the decision of an employment tribunal to give, or refuse, a declaration of unlawful deduction of union subscriptions. Such an appeal may only be made on a point of law.

Detriment

What is detriment?

Detriment can arise as a result of either  an act or a deliberate decision not to act by an employer. Whether an employee or other worker has suffered a detriment is for a tribunal to decide in any particular case. Detriment would cover for example withholding a pay increase, discrimination in promotion, transfer or  training opportunities, or threats of dismissal or redundancy.  For a worker who is not an employee, detriment may additionally take the form of his dismissal. Acts and failures to act of this kind by an employer will infringe an employee's or other worker’s  rights only if they have been taken against the person as an individual, or against a number of persons as individuals. If a detriment is to be unlawful, the person must have been subjected to it with the intention of putting pressure on him in respect of non-membership or membership of a union, or for the other unlawful purposes relating to union activities, union services or for failing to accept unlawful inducements which are discussed in this booklet.  In addition, the failure to confer a benefit on a person who failed to accept an unlawful inducement which would have been conferred on him had he accepted the offer shall constitute a detriment. For example, if an employer had offered £1,000 to workers with the sole or main purpose of taking those workers out of the scope of a collective agreement, any workers who did not accept that offer and were not therefore paid the £1,000 would thereby have been subjected to a detriment of £1,000,    

Who can complain?

Employees and other workers who believe that they have suffered a detriment for reasons described in this booklet can make a complaint to an employment tribunal. 

Making an application

An application to a tribunal may be made as soon as the action or failure complained of has occurred. Unless there is evidence to the contrary a failure to act is deemed to occur either when the employer does an act which is inconsistent with the failed act or, if he does not, at the end of the period within which he might reasonably be expected to have done the failed act if he was going to do it.

The application should be received within three months of that date, though this limit can be extended by a further three months to provide additional time for the parties to apply the statutory grievance procedure (see section below on “Statutory dispute resolution procedures”)  . A tribunal will consider a complaint received later than this only if it thinks that it was not reasonably practicable for the employee or worker to have complained earlier. The method of application is the same as for a complaint of unfair dismissal (see Making an application).

Conciliation and voluntary procedures

As with a complaint of unfair dismissal, Acas may attempt to settle the complaint through conciliation, and voluntary procedures may be available (see 'Conciliation' and 'Voluntary procedures').

Statutory dispute resolution procedures

Employers and employees are generally required to follow a minimum three-stage process to ensure that disputes are discussed at work.  The minimum statutory procedures create a framework for dealing with dismissal, disciplinary action and employee grievances, but are not intended to replace any established effective procedures which employers may have in place.  The three steps consist of 1. a letter outlining the problem; 2. a meeting between the employer and the employee to discuss the matter; and 3. an opportunity to appeal at a further meeting.  In specified types of case, including the detriment jurisdictions described in this booklet, employees who have not been able to resolve a grievance through discussion must have completed the first stage of the procedure (i.e. they must have written to the employer setting out their grievance and allowed some time to pass for the employer to respond) if their case is to be admissible to an employment tribunal.  Where the procedures are not followed, and either the employer or the employee is mainly or wholly at fault for their non-use, then any amount the tribunal may award the employee in determining the case shall be increased (if the fault is the employer’s) or decreased (if the fault is the employee’s), unless the tribunal considers an injustice or inequity would occur as a result.  Further detailed information about the statutory procedures is available on the DTI’s web site and this information should be read closely by any employer or employee who considers that he may be a party to a tribunal complaint under these detriment jurisdictions.  

Tribunal hearing

If a complaint of detriment comes before a tribunal, it is for the employee or other worker to show he was subjected to a detriment as a result of an act, or deliberate failure to act, on the part of his employer. The employer will then have to explain to the tribunal the reason why the act was done or why the failure occurred. The tribunal will then determine whether the employee's, or worker’s rights have been infringed.

Joinder

Exactly the same right of 'joinder' as in an unfair dismissal case is available to an employer facing a complaint of detriment to the employee or other worker, making the complaint.  Joinder is therefore available whether either party claims that the employer did the act (or decided on the failure to act) complained of because of actual or threatened industrial action taken because the employee or worker concerned was not a union member (see Joinder).

Remedies
 
Where a tribunal upholds an employee's or other worker’s complaint of detriment, it will make a declaration to that effect. It may also award such compensation as it considers appropriate having regard to the infringement of the employee's or worker’s rights and any consequent loss suffered by the employee, or worker.

The amount of the  award will be increased by at least 10% and up to 50%,where the tribunal’s proceedings commenced without completion of the statutory grievance procedure and where the failure to do so was wholly or mainly the employer’s fault.  Similarly, the compensatory award can be reduced by the same amount where the failure to use the procedure was wholly or mainly the fault of the employee. The tribunal is empowered not to make any adjustments, or make adjustments of less than 10%, in exceptional circumstances where the standard variation of 10 – 50% would be unjust or inequitable.

Appeals

An employer or worker may appeal against the decision of an employment tribunal on a complaint of detriment, on a point of law only, to the Employment Appeal Tribunal. More detail is in the explanatory booklet, How to apply to an employment tribunal, which can be obtained from local offices of Job Centre Plus.

Unlawful inducements relating to union membership, union activities, union services or collective bargaining  

Who can complain ?

Employees and other workers who believe their employer has made them an offer to accept an unlawful inducement can make a complaint to employment tribunal.  Complaints can be made both by those persons who accepted the offer and those who failed to do so, though the remedies differ.  

Making an application

An application to a tribunal on these grounds must normally be made before the end of the period of three months beginning with the date when the offer of the inducement was made  or where the offer is part of a series of similar offers, the date when the last of them was made.  This limit can be extended by a further three months to provide additional time for the parties to apply the statutory grievance procedure (see section below on “Statutory dispute resolution procedures”). 

However, an employment tribunal can consider a complaint presented later where it was not reasonably practicable for the complaint to be presented within the normal three months time period.

There is no bar on an employee or other worker making a second complaint to a tribunal concerning detriment.  This may especially be the case in circumstances where the employee or other worker concerned has failed to accept an offer. 

Conciliation and voluntary procedures

As with a complaint of unfair dismissal, Acas may attempt to settle the complaint through conciliation, and voluntary procedures may be available (see 'Conciliation' and 'Voluntary procedures').

Statutory dispute resolution proceduresEmployers and employees are generally required to follow a minimum three-stage process to ensure that disputes are discussed at work.  The minimum statutory procedures create a framework for dealing with dismissal, disciplinary action and employee grievances, but are not intended to replace any established effective procedures which employers may have in place.  The three steps consist of 1. a letter outlining the problem; 2. a meeting between the employer and the employee to discuss the matter; and 3. an opportunity to appeal at a further meeting.  In specified types of case, including the jurisdictions relating to unlawful inducements described in this booklet, employees who have not been able to resolve a grievance through discussion must have completed the first stage of the procedure (i.e. they must have written to the employer setting out their grievance and allowed some time to pass for the employer to respond) if their case is to be admissible to an employment tribunal.  Where the procedures are not followed, and either the employer or the employee is mainly or wholly at fault for their non-use, then any amount the tribunal may award the employee in determining the case may be increased (if the fault is the employer’s) or decreased (if the fault is the employee’s), unless the tribunal considers an injustice or inequity would occur as a result.  Further detailed information about the statutory procedures is available on the DTI’s web site and this information should be read closely by any employer or employee who considers that he may be a party to a tribunal complaint under the jurisdictions relating to unlawful inducements.

Tribunal Hearing

If a complaint comes before a tribunal, it is for the employee or other worker to show he has been made the offer by his employer. The employer will then have to show to the tribunal what was his sole or main purpose in making the offer. The tribunal will then determine whether the employee's, or worker’s rights, have been infringed.  In cases where the offer concerned an inducement relating to collective bargaining, the tribunal will take into account any evidence that:

• the employer had recently changed or sought to change, or not to use, arrangements with the union about collective bargaining; 
• the employer did not wish to enter into arrangements proposed by the union for collective bargaining; and
• the offers were made only to particular workers with the sole of main purpose of rewarding those workers for their high level of performance or of retaining them because of their special value to the employer.

Remedies

Where a tribunal upholds an employee’s or worker’s complaint, the tribunal will make a declaration that an unlawful inducement has been offered.

The tribunal shall also make a fixed award (equal to  £2,500 at the time this booklet was published) to be paid by the employer to the employee or worker.  This figure is varied annually in line with the retail prices index. However, this award can be subject to a reduction or increase under the provisions of the Employment Act 2002.

The amount of this award will be increased by at least 10% and up to 50%,where the tribunal’s proceedings commenced without completion of the statutory grievance procedure and where the failure to do so was wholly or mainly the employer’s fault.  Similarly, the compensatory award can be reduced by the same amount where the failure to use the procedure was wholly or mainly the fault of the employee. The tribunal is empowered not to make any adjustments, or make adjustments of less than 10%, in exceptional circumstances where the standard variation of 10 – 50% would be unjust or inequitable.

If a unlawful inducement has been accepted by an employee or other worker, but any consequent agreement by him to vary his terms and conditions has not yet been effected, then the agreement to vary the terms and conditions is not enforceable.  Also, in such circumstances, the employer cannot recover any cash paid or other benefits conferred on the employer or worker concerned.  However, in cases where the agreed variation of terms and conditions have been effected, then those variations are enforceable.    

In cases where an employee or other worker makes a related complaint to the tribunal concerning detriment, and the tribunal upholds that complaint, the tribunal may award compensation for the detriment suffered.  In deciding the amount of such compensation, no reduction may be made on the ground that a complainant contributed to his loss by accepting or not accepting an unlawful inducement or that the complainant has received or is entitled to an award on the grounds that an unlawful inducement has been made to him.

Appeals

An employer or worker may appeal against the decision of an employment tribunal on a complaint of detriment, on a point of law only, to the Employment Appeal Tribunal. More detail is in the explanatory booklet, How to apply to an employment tribunal, which can be obtained from local offices of Job Centre Plus.

Unlawful exclusion or expulsion from a trade union

Who can complain?

Anyone who believes that they have been unlawfully excluded or expelled from a trade union may make a complaint to an employment tribunal.

A complaint of unlawful exclusion from a trade union may be made to an employment tribunal if an application for membership of a trade union has been rejected or where it has neither been granted nor rejected within a reasonable period of time.

A complaint of unlawful expulsion may be made to an employment tribunal if an individual has been expelled, or if membership is deemed to have ceased automatically as a result of the operation of the union's rules.

Making an application

Complaints of unlawful exclusion or expulsion from a trade union must normally be received within six months of the exclusion or expulsion concerned. A tribunal will consider a complaint received after this time only if it decides that the complaint could not reasonably have been made earlier.

Conciliation and voluntary procedures

As with a complaint of unfair dismissal, Acas will often seek to settle the complaint through conciliation, and voluntary procedures may be available (see 'Conciliation' and 'Voluntary procedures').

Remedies for unlawful exclusion or expulsion from a trade union

Where a tribunal finds that an individual has been unlawfully excluded or expelled from a trade union, it will make a declaration to that effect.  Additionally, where an employment tribunal makes such a declaration and it appears to the tribunal that the  exclusion or expulsion from a trade union was mainly attributable  to “protected conduct” ( i.e. an individual being or ceasing to be, or having been or ceased to be, a member of a political party) it must make a second declaration to this effect.  In cases where this second declaration has been made and where it appears to the tribunal that the other conduct to which the exclusion or expulsion was attributable consisted wholly or mainly of conduct which was contrary to the rules of the union or an objective of the union, the tribunal must make a third declaration to that effect. It does not matter if the complainant was a member of the union at the time of the conduct in question. However, for this third declaration to be made, the union must show that it was reasonably practicable for any relevant objective to be ascertained by a union member (if the complainant was a union member when the conduct occurred) or by a member of the general public (if the complainant was not a member of the union when the conduct occurred). 

This may be sufficient remedy in itself, particularly where the trade union concerned admits or readmits the individual concerned into membership as a result of the tribunal's decision. However, the individual may also make an application for compensation, to be paid by the union concerned. Such an application has to be made to an employment tribunal not sooner than four weeks and not later than six months after the tribunal's decision.

Where an application for compensation is made the amount of compensation awarded will be whatever sum the tribunal considers appropriate in order to compensate the individual concerned for the loss which exclusion or expulsion from the union concerned has caused. Any such award will be subject to an upper limit. In some circumstances, the award will be subject to the minimum figure of  £6,100. However, this minimum award does not apply in those cases involving “protected conduct” where the tribunal makes the third declaration discussed above (i.e. where conduct contrary to a rule or objective of the union was a subsidiary reason for the union’s decision to exclude or expel the person). These figures are varied annually in line with the retail prices index. (For details of the current limits on payments, see document Limits on payments and awards - Guidance).

Appeals

An individual or trade union may appeal to the Employment Appeal Tribunal on a point of law against the decision of an employment tribunal to give, or refuse, a declaration of unlawful exclusion or expulsion, or against the decision of an employment tribunal regarding compensation.

PROTECTION FOR BUSINESSES

Union labour only and union recognition requirements in contracts

Companies, local authorities and others are prohibited from imposing on contractors what have become known as union labour only requirements and recognition requirements. These requirements seek to make it a condition of (i) getting on to a tender list for a contract or (ii) obtaining a contract, that the contractor employs only trade union members or recognises, negotiates or consults with trade unions.

Such requirements - which are void and unlawful - would be for the purpose of preventing:

• non-union businesses obtaining contracts; or
• self-employed individuals who do not belong to a union, or a particular union, obtaining work under a contract for services.

The law:

• declares void union labour only and recognition requirements in contracts;
• makes it a breach of statutory duty to impose such requirements in the drawing up of tender lists and the awarding of contracts;
• removes the legal immunities from the organisation of industrial action to impose or enforce such requirements.

The relevant legal provisions are described in detail below.

Requirements in commercial contracts

The law declares void any term or condition of a contract for the supply of goods or services which requires that:

• only persons who are (or are not) members of a trade union are to do work for the purposes of the contract; or
• the contractor, or prospective contractor, should recognise, negotiate or consult with one or more trade unions or officials of one or more trade unions.

This means that any terms or conditions in such contracts requiring a contractor to use only union (6) members in fulfilling the contract or to recognise, negotiate or consult with trade unions or trade union officials, are unenforceable at law.

An individual can be a "contractor". If someone, for example a freelance artist, works (or seeks work) under a contract to supply goods or services rather than a contract "of employment", any requirement in such a contract that he must be a union member will be unenforceable.

If such requirements are included in a contract the contractor is under no legal obligation to comply with them and cannot be sued for breach of contract if he obtains the contract by giving false information about relevant matters. The voiding of 'union labour only' and 'union recognition' clauses does not, however, invalidate the contract itself nor render void its other terms and conditions.

Drawing up tender lists and awarding contracts

It is also a breach of statutory duty - and therefore unlawful - to exclude a person (that is a company or any other association, or an individual) from a tender list or to fail to award him a contract for the supply of goods or services or to take other similar actions on the grounds that:

• anyone (who may be the contractor himself if he is an individual) who is likely to do work for the purposes of the contract is or is not a union member;
• anyone employed or likely to be employed by a company for the purposes of that contract is or is not a union member; or
• the person does not recognise, negotiate or consult with trade unions or trade union officials.

The full list of actions made unlawful by these provisions is as follows:

• deciding not to enter into a contract with a particular person (who could, for example, be seeking freelance or self-employed work under a contract "for services");
• failing to include a person on a list of approved suppliers or a list of those from whose tenders may be invited;
• excluding a person from the group from whom tenders are invited;
• failing to allow a person to submit a tender for a proposed contract;
• terminating a contract for the supply of goods or services.

These provisions are concerned only with requirements about union labour and recognition. They do not prevent other requirements (for example, as to health and safety matters or terms and conditions of employment) being imposed on contractors, unless they amount to a requirement to use union labour only or to recognise, negotiate or consult with a trade union or trade union official.

Who can take legal action?

Where an unlawful act as described above has taken place, legal proceedings  may be taken against those responsible by a person who is:

• not awarded a contract;
• excluded from a tender list;
• not allowed to tender for a contract; or
• party to a contract which is terminated.

Anyone taking such legal action must be able to show that he has, for example, been excluded from a tender list or refused a contract "for services", because he (i) is not a union member, or (ii) employs non-union workers, or (iii) does not recognise, negotiate or consult with trade unions or trade union officials.

In the main, the right to take legal action, therefore, rests with those who are directly affected by the unlawful action. But the law also gives a right to take legal proceedings to any other person who may be adversely affected by the breach of statutory duty. This enables anyone else who suffers loss, or is likely to do so, as a result of the breach of duty to take legal action.

Legal remedies

Anyone who suffers loss as a result of a breach of statutory duty, or is likely to do so, has a remedy in the courts. He may be able to seek a declaration from the court that a breach of statutory duty is taking place. If the unlawful act has caused him loss or damage, he may be able to sue for damages.

Industrial action to promote closed shop practices or against non-union firms 

Closed shop practices

It is unlawful to organise, or threaten, industrial action (i.e. action which results in a breach of, or interference with, the performance of an employment contract) to establish or maintain a union closed shop practice.

Immunity is removed where the reason, or one of the reasons, for industrial action is:

• that an employer employs, has employed or might employ a person who is not a member of a trade union; or
• to pressurise an employer into discriminating against somebody on the grounds of non-membership of a trade union.

An employer discriminates against a person who is not a union member if his conduct in relation to people who are or may be employed by him is:

• different according to whether or not the people are or are not members; and
• more favourable to those people who are members.
   

Non-union firms

In addition, there is no immunity for industrial action which is either:

• designed to exert pressure on an employer to persuade him to impose union labour only or recognition requirements on contractors; or
• taken by the employees of one employer and interferes with the supply (whether or not under a contract) of goods or services by a second employer, or can reasonably be expected to have that effect, where the reason, or one of the reasons, for the action is that the second employer does not recognise, negotiate with, or consult trade unions or trade union officials.

Legal remedies

The effect of removing the legal immunities (7) in these cases is to give to those who are or may be damaged by the unlawful industrial action the right to seek an order against the trade union or individual who is organising it to restrain their unlawful acts, and to sue them for damages.

APPENDIX 1:

What is an independent trade union?

An independent trade union is one which is not under employer domination or control, and which is not liable to interference in any form tending towards such control. Employees do not have to be able to prove that the union to which they belong, or which they want to join, is independent before they can seek a remedy for infringement of their rights.

If the union's independence is questioned, the fact that it holds a certificate of independence issued by the Certification Officer will be proof that it is independent. If the union does not hold such a certificate, the proceedings to consider whether the employee's membership rights have been infringed will have to be delayed until the Certification Officer decides whether or not the union is independent.

APPENDIX 2:

Dismissal

Dismissal, for the purpose of the law on unfair dismissal, is defined as the termination of employment by:

• the employer, with or without notice;
• the employee's resignation, with or without notice, where the employee has resigned because the employer by his conduct in breach of the contract of employment has shown an intention not to be bound by the contract;
• the expiry of a fixed-term contract without its renewal.
   

APPENDIX 3:

People who cannot complain of unlawful refusal of employment or a service of an employment agency, or of unfair dismissal, if rights in the 'Access to employment' and 'Rights during employment' parts of this document are infringed

Unlawful refusal of employment or a service of an employment agency

The following people cannot complain to an employment tribunal over a refusal of employment or a service of an employment agency that infringes the rights set out in the Access to employment part of this document:

• those who are seeking self-employed work (for example, as independent contractors or freelance agents working under contracts for services);
• those seeking employment as members of the police, the armed forces and certain parts of the security and intelligence services;
• those seeking employment as the master or crew of a fishing vessel in which position they would be paid solely by a share in the profits or gross earnings of the vessel.

Unfair dismissal

The following people cannot complain to an employment tribunal over a dismissal or detriment that infringes the rights set out in the Rights during employment part of this document:

• those who are not employees (for example, an independent contractor or freelance agent);
• members of the police, the armed forces and certain parts of the security and intelligence services;
• the master and crew of a fishing vessel who are paid solely by a share in the profits or gross earnings of the vessel.
  

Note: An employee is someone who has entered into, works under or worked under, a contract of employment. A contract of employment is a contract of service, or of apprenticeship. Its terms may be expressed in writing or orally or may be implied.

APPENDIX 4:

Obtaining an order of interim relief

Employees who wish to apply for an order of interim relief must present an application for an order to an employment tribunal not later than seven days after their effective date of termination. If the complaint is one of unfair dismissal for trade union membership or activities, employees must also present not later than the end of the same period of seven days a written certificate signed by an authorised official of the independent trade union of which they were, or had proposed to become, a member stating that:

• on the date of the dismissal the employee was, or had proposed to become, a member of the union; and
• there appear to be reasonable grounds for supposing that the principal reason for the employee's dismissal was the one alleged in his or her complaint.

If on hearing an application for interim relief the employment tribunal considers it likely that it will uphold the employee's complaint at a full hearing, it will announce its findings and ask the employer, if present, whether he is willing, pending the final settlement of the complaint, to reinstate the employee, or if not, to re-engage the employee in another job with seniority, pension rights and other similar rights not less favourable than those which would have been applicable if the employee had not been dismissed.

If:

• the employer is willing to reinstate the employee, the tribunal will make an order to that effect;
• the employer is willing to re-engage the employee in another job and lays down the terms and conditions of the job, the tribunal will ask whether the employee is willing to accept this offer. If the employee is willing to do so, the tribunal will make an order to that effect. If the employee is not prepared to do so and the tribunal thinks the refusal reasonable, the tribunal will make an order for the continuation of the contract of employment;
• the employer fails to attend the tribunal's hearing of an application for an order of interim relief, or is unwilling to reinstate or re-engage the employee, the tribunal will make an order for the continuation of the employee's contract of employment.
   

Footnotes

4. With the exception of the right not to be chosen for redundancy on the grounds of: (i) membership or non-membership of a union, or (ii) participation in union activities at an appropriate time.
5. In Scotland "sisted".
6. These provisions apply equally to requirements that a contractor must use only non-union labour and all references to union labour only requirements in this chapter should be interpreted accordingly.
7. See also employment legislation document Industrial action and the law: a guide for employers, their customers and suppliers