Has your obligation to collectively consult employees just been extended?

Wandsworth London Borough Council v Vining, a case hailed by the union as significantly extending employers’ obligations to collectively consult.

It has been a busy few weeks for UNISON. Following close behind its victory in the Supreme Court over Employment Tribunal fees comes Court of Appeal success in Wandsworth London Borough Council v Vining, a case hailed by the union as significantly extending employers’ obligations to collectively consult.

UNISON’s press release describes the decision as a “landmark court victory” that “makes it much harder to ignore staff when making major changes in the workplace” and claims that, following the ruling, employers must now involve unions in issues such as working hours and holiday pay, as well in situations where collective consultation is already a prescribed legal requirement.

However, while undoubtedly important, the Judgment may not be this far-reaching. At the very least, the scope of its impact is open to debate.

What happened?

The claimants, Mr Vining and Mr Francis, worked as park police constables for the London Borough of Wandsworth. The borough council decided to disband the parks police service, which led to collective redundancies, including the dismissals of Mr Vining and Mr Francis. Both received statutory and enhanced redundancy payments.

Both Mr Vining and Mr Francis later brought claims for unfair dismissal in the Employment Tribunal. Their union, UNISON, claimed that their employer had also failed in its duty to collectively consult appropriate representatives, as required when an employer is proposing to dismiss as redundant 20 or more employees in a period of 90 days or less. The remedy in these circumstances is a protective award.

What did the Court of Appeal decide?

The unfair dismissal claims failed. The Court of Appeal found that, although the park police constables were not strictly police officers, they were employed in “police service” (following the recent Employment Appeal Tribunal case of London Borough of Redbridge v Dhinsa and McKinnon). Under UK law, employees in “police service” are excluded from the right to claim unfair dismissal. UNISON argued that this exclusion was in breach of Article 8 European Convention on Human Rights (ECHR) which protects the right to private and family life. The Court of Appeal did not completely rule out the possibility that Article 8 might be relevant to a claim of unfair dismissal in some circumstances. However, it held that that there nothing particular in this case to suggest that the dismissals of Mr Vining and Mr Francis had infringed their human rights in this way.

Employees in “police service” (and their trade union representatives) are also excluded from the from collective consultation rules. However, UNISON argued that this exclusion was in breach of Article 11 ECHR (the right to ‘freedom of assembly and association’ including the right to join and form trade unions). The Court upheld this claim, referring to a 2009 European case (Demir and Baykara v Turkey) which held that “the right to bargain collectively with the employer has, in principle, become one of the essential elements of Article 11”. It held that the right to collective bargaining (that is to negotiate with the employer on various issues such as terms and conditions of employment and conditions of work) and the collective consultation rights sought by UNISON in this case were so similar, that the latter should also be regarded as an “essential element” of Article 11. UNISON was therefore allowed to proceed with its claim regarding the employer’s failure to collectively consult.

Why is this case important?

This finding that collective consultation rights are an essential element of the right of association under Article 11 ECHR, is arguably the most important part of the decision. UNISON’s view is that this opens the door to trade union members who are currently outside the scope of collective consultation, to argue that their exclusion is a breach of their human rights, and the human rights of the trade union. Categories of employee currently excluded from collective consultation rights include crown employees, House of Lords and House of Commons staff and police officers.

However, UNISON interprets this decision as also extending an employer’s current obligations to collectively consult (in collective redundancy situations and before a TUPE transfer) to a broader range of issues. This is arguably a very optimistic reading of the decision.

In many ways, this case is confined to its own fairly narrow set of facts. The case was chiefly about whether it was lawful for domestic law to exclude this particular group of employees (police parks officers) from the legal right to unfair dismissal protection and the right to be consulted over collective redundancies. The key message seems to be that any groups of individuals currently excluded from consultation arrangements should not be excluded without proper justification.

It does not mean that collective consultation rights must be available to all employees (and their trade unions) in all circumstances. Rather, any legal provisions that exclude groups of employees from collective consultation must strike a fair balance between the interests of those employees and public policy.

What does this mean for me?

This decision is particularly important if your workforce includes any employees currently ‘excluded’ from unfair dismissal or collective consultation rights.

If this is the case you may wish to consider whether it is appropriate to include them going forward when consultation takes place. Importantly, in this case, the Borough Council argued that it did in fact consult extensively over the redundancies and had fully satisfied UK collective redundancy consultation requirements (had they been found to apply to this group of employees).

However, this decision does not mean that all ‘excluded’ employees must now be included in collective consultation, simply that their exclusion must be justified if challenged. The Court of Appeal stressed that an important factor in its decision was that no arguments were put forward by the government to explain or justify why police parks officers were excluded from collective consultation. It was also important that the police parks officers did not have access to other avenues of redress. It might, for example, be easier to justify the exclusion of some other police officers from unfair dismissal protection and collective consultation rights as there is alternative statutory protection in place for them to rely on. The Court of Appeal in its decision encouraged the government to review the apparently unfair exclusion of police parks constables, and anyone else in “police service” from unfair dismissal protection and collective redundancy rights.

If your workforce, or large parts of it, are unionised you probably already have detailed written arrangements in place to prescribe the nature and scope of collective bargaining in your organisation. There is no reason why these arrangements should change simply as a result of this case.

A number of you have told us that this case is already being raised by unions in meetings as authority that employers must collectively consult with unions on a wide breadth of issues (such as pensions or holiday pay). We would be happy to support you in formulating a response or assessing the implications of this decision for your organisation.

Paul McFarlane (paul.mcfarlane@weightmans.com) is a Partner in the Employment, Pensions and Immigration team and is based in London. Paul is an expert in industrial relations law and has extensive experience of advising a broad range of employers on their obligations to collectively consult. If you have any questions, please do not hesitate to contact Paul or speak to your usual Weightmans advisor.

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