STATUTES
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01452.x |
| Published date | 01 March 1976 |
| Date | 01 March 1976 |
STATUTES
THE
EMPLOYMENT
PROTECTION
ACT 1975-cOLLECTIVE ASPECTS
THE
Trade Union and Labour Relations Act 1974 (T.U.L.R.A.)
restored the traditional basis of British labour law. The Employment
Protection Act 1975 (E.P.A.) adds new dimensions (i) to the floor
of rights for individual employees, and (ii) to
“
collective
”
labour
law. This note concentrates (as briefly as this vast statute of 129
sections and 18 Schedules will allow)
on
the latter,l discussed under
four headings:
1.
Individual Rights
and
Collective Labour Relations.
The new
range of individual employment rights (notably, guarantee payments
in lay-offs; medical suspension pay; maternity and pregnancy rights;
rights in insolvency, to
a
written statement
on
dismissal and to an
itemised pay statement; new remedies for unfair dismissal; improve-
ments in redundancy rights; new rights to notice and statements in
written particulars
2,
is bound to affect the parties at the collective
bargaining table. The bargaining begins from
a
materially raised
floor of statutory entitlements. One hopes only that union officials
and managers will still have sufficient time for negotiation, given
the demands that will be made upon them by an ever-increasing load
of litigation before industrial tribunals to which disputes about these
new rights can be taken-’
But one group of rights, although couched in
‘‘
individual
”
language, in reality establishes rights of significance
on
the collective
plane, and must therefore be further considered here. In effect,
British law is building a collective
“
right to associate
”
out of the
bricks of certain
“
individual
”
employment rights. Three areas are
the most important in this respect.
First, dismissals which are unfair because the reason was member-
ship of, or activity at an appropriate time in, an independent trade
union (T.U.)‘ are provided with the new remedy of “interim
relief.”
If
an employee who alleges such a dismissal applies within
seven days to
a
tribunal, armed with
a
certificate signed by an
1
A further note will examine details of
‘I
individual
”
employment law under the
E.P.A.
2
Respectively,
in
B.P.A.,
ss.
22-28; 29-33; 34-52; 63-69;
70;
81-84; 71-80;
s.
125, Sched. 16.
I;
and
ss.
99-107; and
s.
125, Sched. 16,
11.
-’
Different
parts of the E.P.A. will be brought into cBect
on
dflerent dates:
s.
129
(2)
(3). The Employment Protection Act (Commencement
No.
1)
Order 1975,
S.I.
1938, brought some provisions
into
effect, notably:
on
January 1, 1976,
those
concerning
the Advisory Conciliation and Arbitration Service, and Wages Councils;
on
February 1, 1976,
the
Certification Officer, Central Arbitration Committee and
recognition references; and
on
March
1,
1976, amendments
to
the
Health and Safety
at
Work
Act 1974. At the time
of
writing, the Lord Chancellor is expected
to
establish the Employment Appeal Tribunal, under
s.
129 (2), on or before March 1,
1976.
169
Sched.
1,
para. 6
(4)
to the T.U.L.R.A.
170
THE
MODERN LAW REVIEW
[Vol.
39
authorised official of such T.U. stating that there are reasonable
grounds for supposing that this
wus
the reason for the dismissal,
the tribunal, if it thinks that this complaint is
“
likely
”
to succeed,
can order the continuation of the employee’s contract of employ-
ment, if the employer refuses to re-instate or re-engage the employee,
until the case is finally determi~~ed.~ As usual, however, the final
sanction against the employer who fails to comply with an order
for continuation is such compensation as the tribunal considers just
and equitable.B
Secondly, every employee is to have the right
“
as an individual
”
not to be penalised for, or deterred or prevented from, joining an
independent T.U. or taking part in its activities at an appropriate
time, by employer’s sanctions short of di~missal.~ The remedy for
such penalty, deterrence or prevention is compensation awarded by
an industrial tribunal having regard not merely to loss sustained
but also
“
the infringement of the complainant’s right under section
53,”
i.e.
a statutory penalty on the employer.8 But
which
T.U. has
the employee the right to join as an active member? Where
it is
‘‘
the practice
”
for employees to belong to
a
specified T.U. or
unions, under
a
union membership agreement (U.M.A.), it must be
that T.U. or one of those unions.” But what if there
is
no U.M.A.?
Which T.U. then? Section
53
gives no answer; and the right is clearly
not confined to recognised unions.
If
“
taking part in the activities
”
of
a
T.U. incorporates organisational activities, the same risk of
unwelcome activities by break-away groups
(so
long as they are
“
independent
”)
may arise as arose under the Industrial Relations
Act
1971,
s.
5,
posing a threat to established bargaining structures.’O
Thirdly, two rights to time
off
from work also sustain organisa-
tional T.U. strength. Employees who are members have a right to
unpaid time
off
for taking part in activities of their independent,
recognised T.U., or for acting as its representative; but such activities
must not
“
consist of
”
industrial action, whether or not in contem-
5
ss.
78, 79
and
80
of the E.P.A. This reflects the new priority given to re-instatc-
ment or re-engagemcnt as remedies for unfair dismissal:
cj.
ss.
71-72.
~~
6
s.
80
(3).
7
s.
53
(1).
“Appropriate time” is dcfined by
s.
53 (2)
as it was undcr the
Industrial Relations Act
1971,
s.
5
(5);
see
P.O.
v.
U.P.W.
ond
Crouch
El9741
I.C.R.
378, 398-399
H.L. Religious objectors who object to joining
ony
T.U. aro similarly
protectcd against compulsion to join:
53
(b); and it is
a
similar wrong to compel
any employee to join a T.U. which is
not
independent,
s.
53
(1)
(c).
“
Independence;’
liko most terms, is given by the E.P.A.
(s.
126)
the samc meaning as
In
T.U.L.R.A.,
s.
30.
8
s.
56
(1).
No
account is to be taken
of
industrial pressure put by workers on the
cmployer:
ss.
56
(4)
and
55
(2).
The burden is on the employer to provc the purpose
of
his penalking the worker and that it did not contravene
s.
53
:
s.
55
(1).
0
s.
53
(4).
(See too the important
s.
53
(5)
discussed
infru.)
These provisions are
the positive equivalent of T.U.L.R.A.. Sched.
1,
para.
6
(5)
on unfair dismissal. Tho
definition
of
U.M.A. in T.U.L.R.A..
s.
30
will be materially improved if the T.U.L.R.
(Amendment) Bill, cl.
2
is
enacted. But
s.
126 (4)
of
E.P.A.
anticipates ono such
amendment for the purposes of this statute.
10
See
P.O.
v.
U.P.W.
ond
Crouch,
supra.
On the other hand, in the converse
situation, wherc an employer recogniscs a
“
swectheart,” if
“
independent,” T.U.,
s.
53
gives a morc active T.U.
a
means of cntry into the cstablishmcnt.
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