bargaining brief is a publication
from the Policy & Information Team. It aims to provide a concise
and topical news service for activists and staff engaged in representing
and bargaining on behalf of UNISON members in Scotland. Recognising
that not all activists have the access or time to read detailed
information we hope this summary format will be helpful. Further
information on any of the news items below is available from the
P&I Team and we welcome feedback on any aspect of this service.
No overtime in pensionable salary for local
The High Court has held that a local government employee's
pensionable salary does not include overtime payments (London
Borough of Newham v Skingle and the Pensions Ombudsman).
Although this is a decision on the SI that governs English and Welsh
local government scheme, the equivalent Scottish SI is drafted in
the same way so it is likely that the Scottish courts would come
to the same decision. The decision could also apply to other public
sector workers; it all depends on the definition of remuneration
in the legislation governing their pension schemes.
There are two recent important decisions on redundancy
consultation. MSF v Refuge Assurance plc  IRLR
324 concerns the trigger for when consultations must begin
and gives us yet another example of the UK not implementing an EU
Under S 188(1) of TULR(C)A the trigger is when "an
employer is proposing to dismiss as redundant" 20 or
more employees at one establishment within a period of 90 days or
less. The EAT took this to mean that the employer must be in a relatively
certain state of mind about the redundancies and does not have to
start consulting until the stage has been reached when there are
proposals to make, rather than having to consult when it has formulated
a plan at management level which may have the likely consequence
of redundancies at some time in the future.
However, the Collective Redundancies Directive, which
TULR(C)A purports to implement, requires consultation to begin where
"the employer is contemplating collective redundancies",
which this decision held to be a relatively early stage of the decision-making
process. Therefore, the obligation to consult falls on the employer
earlier under the Directive than under the UK implementing legislation.
The EAT held that the UK legislation could not be
construed to accord with the Directive without distorting the meaning
of the domestic legislation and that the UK is in breach of its
requirements under EU law. Since Directives can have direct effect
against emanations of the State, this appears to mean that there
are different rules as to when redundancy consultation must begin
according to whether the employer is in the public or private sector.
The scope of the duty to consult in advance
of redundancies is the subject of Middlesborough Borough Council
v TGWU  IRLR.
S188(2) TULR(C)A requires that redundancy consultation
"shall include consultation about ways of - (a) avoiding the
dismissals, (b) reducing the numbers of employees to be dismissed,
and (c) mitigating the consequences of the dismissals." In
this case it was held that although the employers had genuinely
consulted with the recognised unions over redundancy selection and
redundancy arrangements, they breached the statutory requirement
because they had already taken a decision before starting
consultations that there would need to be compulsory redundancies.
S188(2) is a mandatory requirement on the employer to genuinely
consult with employee representatives, with a view to reaching agreement,
about ways of avoiding dismissals and the employer cannot avoid
such consultation by arguing that consultation would, in the circumstances,
be futile or utterly useless.
This decision makes clear that although an employer
does not have to consult about its reasons for proposing redundancies,
it will risk having a protective award made against it if it does
not consult in good time about whether redundancies can be avoided.
Update: Fixed Term Workers Regulations
The government won't be implementing the Fixed
Term Workers Regulations by 10th July 2002, as required by the
EC Fixed Term Workers Directive because the Employment Bill
containing the relevant clauses is not yet through Parliament. The
Regulations will prevent pay and pensions discrimination against
fixed term workers.
The DTI now intends to bring them into force on 1st
October 2002. This delay leaves the government open to a Francovich
claim - workers may be able to sue the government, rather than their
employer, for any discrimination they suffer on grounds of being
a fixed-term worker between 10th July and 1st October.
Health & Safety
Number of Health & Safety Inspectors falls
The Health & Safety Local Authority Unit's latest
figures show a 12% fall in the number of inspectors working in the
local authority-enforced sector over the last 3 years, whilst workplace
fatalities have risen by 50% over the same period.
The Health & Safety Commission thinks this threatens
its "revitalising health & safety" target to cut fatal
and major injuries by 10% by 2010. It is now pressurising council
leaders to properly resource health & safety teams to avoid
councils being stripped of their health & safety roles if they
persistently fail to protect workers and members of the public.
Union organised workplaces safer
A report in Hazards magazine indicates that
unions and union safety reps prevent 13,000 major injuries every
year. Organised workplaces are safer because union safety reps have
the skills and knowledge to ensure proper structures are put in
place and unsafe practices are challenged.
TUC stress tests issued to employers
To highlight the issue of workplace stress the TUC
is to run a stress campaign in the run up to European Safety Week
Branches are being asked to use risk assessments and
TUC checklists to assess workplaces and address any problems uncovered.
A special TUC web-calendar of events for the week will be launched
nearer the time.
Cramped office conditions leads to stress
A new Work Foundation report indicates that almost
one quarter of office workers are dissatisfied with their workspace
and claims that the state of the workplace can affect staff physically
and psychologically and impact on their performance and productivity.
The survey found that space offered to staff is still
largely dependent on rank and status, with private offices remaining
the preserve of senior staff and the majority of lower graded staff
working in open plan areas.
Age discrimination is still not illegal in this country,
although it is unfair and wasteful and costs the UK economy billions
of pounds. By the year 2010 almost 40% of the workforce will be
aged 45 or over.
Much to UNISON's disappointment, the UK Government
has so far ducked the issue of legislating on age discrimination
and merely offered a voluntary Code of Practice. However, Europe
has come to our rescue once again and the Employment Directive on
Equal Treatment requires all 15 EU Member States to introduce legislation
prohibiting direct and indirect discrimination at work on the grounds
of age, sexual orientation, religion and belief, and disability.
The age discrimination aspects of the directive will be introduced
in UK legislation by 2006.
In the meantime the Age Positive campaign, led by
the Government, has issued business-friendly guidance to tackle
age discrimination in employment. It offers real examples of good
practice in large and small businesses which we can use to tempt
employers to start putting good practices into operation now. See:
Yet another report has been issued suggesting that
the way to a happier, healthier workforce is to decorate the office
nicely (see piece above) and to purchase a workplace pet. More than
4 out of 5 workers surveyed by Office Angels thought that these
two factors would improve their productivity. Brad, the P&I
Team's lion, is (stuffed) proof of this, we feel.
However, Rover and Tiddles might necessitate longer
lunch hours (for walkies) and more frequent redecorationů
@ the P&I Team
14 West Campbell St
Tel 0141-332 0006
Fax 0141-307 2572