Chapter 16Employing labourTrade union matters – recognition
Employers were free to decide for themselves whether
they wished to recognise trade unions regardless of the
wishes of their employees, and irrespective of the level
of union membership among their workers. Under the
provisions of the Employment Relations Act 1999, which
are in force, employers will have to recognise trade
unions where a majority of those voting in a ballot and
at least 40 per cent of those eligible to vote are in favour
of recognition. Organisations employing fewer than 21
workers will be exempt. However, in those organisations
where more than 50 per cent of the workers are mem-
bers of the union, there will be automatic recognition on
the grounds that there is a manifest demonstration that
the employees wish to be represented by the union for the
purposes of collective bargaining. The Employment Rela-
tions Act 1999 gives protection against dismissal for those
campaigning on behalf of recognition and unions will be
allowed reasonable access to the workforce to seek their
support and to inform employees about ballots.Those
who employ less than 21 workers are exempt.
The compulsory recognition provisions give trade
unions the right to negotiate on matters relating to pay,
hours of work and holidays. Union recognition also
gives the union, through its representatives, the right to
be consulted on redundancies and on a transfer of busi-
ness and to accompany a worker at a grievance or dis-
ciplinary hearing. In addition, the employer must respond
to requests for information about the business which the
union needs for collective bargaining.
However, whether or not there is a recognised union,
the Trade Union and Labour Relations (Consolidation)
Act 1992 gives employees the right to belong or not to
belong to a trade union and, whether or not that or any
other union is recognised by the employer, individuals
are given some basic protection against being penalised
because they are or are not or have been members of a
trade union. These are set out below.Trade union matters – employment protection
Under the Trade Union and Labour Relations (Con-
solidation) Act 1992 employers have a duty not to take
action against employees, including dismissal and selec-
tion for redundancy, just because they are members of,
or take part in at an appropriate time the activities of,
a trade union which is independent of the employer.
According to the decision in Post Officev Union of Post
Office Workers(1974), this includes activities on the
employer’s premises. Under the provisions of s 152 of
the 1992 Act dismissal for failure to join a trade union is
always automatically unfair even if there is a closed shop
situation within the industry concerned. This provision
greatly weakens the maintenance by trade unions of
closed shops.
If action is taken against employees, they may com-
plain to a tribunal which can award money compensa-
tion or make an order saying what the trade union rights
of the employee are so that the employer can grant them
in the future. If the employee has been dismissed, the
unfair dismissal remedies apply.
In addition, s 137 of the 1992 Act gives job seekers a
right not to be refused employment or the services of an
employment agency on the grounds that they are or are
not trade union members. Any individual who believes
that he or she has been unlawfully refused employment
or the services of an employment agency because of union
or non-union membership can complain to a tribunal
within three months of refusal. If the case is made out,485Re Famatina Development Corporation
Ltd(1914)
A company employed a consulting engineer to make a
report on its activities. The written report contained mat-
ters which the managing director alleged were a libel
upon him and he brought an action against the engineer
in respect of this on the basis of the publication of the
report to the directors of the company, all of whom had
received a copy. The managing director’s action failed
but the engineer incurred costs in defending the claim,
not all of which he could recover and he now sought to
recover them from the company.
The Court of Appeal decided that the comments made
in the report were within the scope of the engineer’s
employment. His terms of engagement required him to
report fully and frankly and in the circumstances he was
entitled to the indemnity.
Comment. There is no duty to indemnify an employee
against liability for his own negligence. Thus, if by neg-
ligence an employee injures a third party in the course
of employment and the third party sues the employee,
the employer is not required to indemnify the employee
and, indeed, if the employer is sued as vicariously liable
(see later in this chapter) he has a right to an indemnity
against the employee. This was decided in Listerv
Romford Ice and Cold Storage Ltd(1957), though the
action is unlikely to be brought because it upsets indus-
trial relations.