Employment Rights Update

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Hannah Boynes has joined the Morrish employment team. Hannah qualified in 2012 and obtained Higher Rights of Audience in 2014. Hannah qualified as a Solicitor-Advocate after completing her training in civil litigation and employment.

 

 

British Airline Pilots’ Association v Jet2.com Ltd 2017

This case looked into what falls within the scope of “pay, hours and holidays” in terms of a statutory collective bargaining agreement under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A).

Facts

Originally, Jet2 had refused to recognise BALPA meaning the Union had to seek statutory recognition via the Central Arbitration Committee (CAC) in order to show that they were entitled to enter into collective bargaining on behalf of their members.

In the original judgment it was observed:  “it is not in dispute that [Jet2] opposed the [Union] every step of the way in its efforts to achieve recognition”.

And when asked if Jet2 management held BALPA in “contempt” the evidence given was as follows:  “It is more for unions, rather than specifically BALPA as a sole union.”

Acrimonious was a fair description of the relationship.

BALPA was duly granted recognition by the CAC. When a union gains statutory recognition in this way, and (as here) the employer and the union can’t agree to a  the terms about which it can negotiate with the company in question are defined in TULR(C)A as matters relating to “pay, hours and holidays”.

Once BALPA had gained statutory recognition it brought a claim to the High Court attempting to argue that Jet2’s rostering policy, which allocated hours of work, rest periods and time off, should be subject to collective bargaining as it fell under the TULRCA definition of “hours”.  Jet2 argued that, as the policy was non-contractual, it should not.

High Court

The High Court accepted Jet2’s argument.

It was stated that non-contractual elements of the policy were not suitable for incorporation into the contracts of employment of the union’s members. Therefore, the policy fell outside the scope of statutory collective bargaining as defined in TULRCA.

BALPA appealed to the Court of Appeal.

Court of Appeal

The Court of Appeal found in the favour of BALPA.

The Court took a wide approach to the wording of TULRCA, finding that there was no reference in the act to statutory collective bargaining only covering proposals which had the potential to give individuals contractual rights. Therefore, it was held that the policy did indeed relate to “hours” under TULRCA.

The Court also addressed the Respondent’s submission that the policy did not constitute “core issues of pay, hours and holidays”. It held that these “core issues” were not intended to be the only issues which might be subject to negotiation under the Act, and so this argument was dismissed.

Comments

The statutory framework in TULRCA has tended to be regarded as a poor relation, given the limited extent of the collective bargaining it facilitates (when compared with the freedom to contract available to Unions who are dealing with a more agreeable employer).

This is a welcome judgment taking a practical, non-technical approach to TULR(C)A’s provisions in relation to the statutory scheme.  It will not now be necessary to consider whether an issue is going to have contractual effect in law, to decide if there should be negotiations around it.

The simpler question is thus: “does it relate to pay, hours or holiday?” – and the Court was at pains to say that this ought to be something that a lay person should be able to grasp without technical legal input.

Of course, in the end, the obligation is only to negotiate – the employer can still withhold actual agreement.  But the case represents a helpful step in the right direction.

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