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BARGAIN BRIEF September 2002
Topical news for activists and staff
Click here for previous Bargain Briefs

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 government employees
- Redundancy consultation

Employment Rights
- Update: Fixed Term Workers Regulations

Health & Safety
Number of Health & Safety Inspectors falls
Union organised workplaces safer
- TUC stress tests issued to employers
- Cramped office conditions leads to stress

Bargaining issues

- Age Discrimination

Workplace pet makes it better

Contacts list:



No overtime in pensionable salary for local government employees

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.

Redundancy consultation

There are two recent important decisions on redundancy consultation. MSF v Refuge Assurance plc [2002] IRLR 324 concerns the trigger for when consultations must begin and gives us yet another example of the UK not implementing an EU Directive properly.

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 [2002] 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.


Employment Rights

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 (14-20 October).

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.


Bargaining issues




Age Discrimination

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



Contacts list:
Dave Watson
Dianne Anderson

@ the P&I Team
14 West Campbell St
Glasgow G26RX
Tel 0141-332 0006
Fax 0141-307 2572

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