General Council Report 2002: Chapter 1

General Council Report 2002

• rights at work
• 1.1 Introduction
• 1.2 Employment rights Campaign
• 1.3 Employment Bill
• 1.4 Statutory recognition
• 1.5 Information and Consultation Directive
• 1.6 Employment Tribunals
• 1.7 Teleworking
• 1.8 Civil liberties issues
• 1.9 EU Initiatives on ‘atypical work’

rights at work

1.1 Introduction

The TUC campaign for a new framework of employment rights remained at the heart of the TUC’s work throughout the Congress year. In furtherance of the composite resolutions on employment rights carried at the 2001 Congress, the General Council have worked throughout the year to influence the Government on a range of issues. In particular, the General Council have organised an Employment Rights Campaign, based on a Charter, Modern Rights for Modern Workplaces. This campaign will continue during the next Congress year and is reported fully in succeeding paragraphs.

There have been a number of important developments during this Congress year. The Government introduced an Employment Bill, which introduced welcome new rights to time off for union learning representatives as well as improved parental rights. The Bill also included new provisions for workplace dispute resolution and Employment Tribunal procedures, some of which have caused concern to the TUC. The European Commission published their Information and Consultation Directive which requires employers who employ more than 50 workers to establish mechanisms for consulting with and providing information to their workforce. The general secretary issued a statement welcoming the Directive which he said had the potential to transform employment relations in the UK. The Government has also consulted widely on the implementation in the UK of the EC Directive on Fixed Term Contracts. The General Council commented on draft Regulations, due to be introduced in the autumn, welcoming the new laws but regretting the Government’s decision to limit their scope, in particular by restricting them to ‘employees’.

The Government has also started its promised review of the Employment Relations Act 1999, with a commitment to introducing legislation within the lifetime of this Parliament if it considers changes to be necessary. At the same time it has published a consultation document on employment status, inviting views on the extent to which workers, as opposed to employees, need additional protection under current legislation. Problems remain with aspects of the law on industrial action and the TUC has assisted unions involved in disputes with their employers. The Government has become involved in discussions at EU level on the proposed Directive on Temporary Agency Workers.

The General Council have expressed their concern that the Government is attempting to weaken the Directive. The General Council have welcomed the EU Social Partner agreement on teleworking. This is the first time that the Social Partners have agreed a non-legally binding agreement of this kind. The TUC will now have follow up discussions with the CBI and CEEP on negotiating a UK agreement.

The statutory trade union recognition scheme, which came into operation on 6 June 2000, has generally continued to operate smoothly, with a number of unions gaining statutory recognition. More significant has been the continuing growth in the number of voluntary recognition agreements signed. Five hundred new agreements came into force, many of which would have been unlikely without the new statutory scheme existing as a fallback for unions.

In the autumn, the Government announced a review of Employment Tribunal systems and established a Task Force to oversee the review. The TUC was represented on the Task Force by the Deputy General Secretary, Brendan Barber. The Task Force’s Report was due to be published towards the end of the summer. In March, the Government started a recruitment exercise for lay members of the Employment Tribunals. The previous round of appointments had caused great concern to the General Council, who had pressed the Government to make a number of improvements to the process next time. To this end, the TUC office met DTI officials and agreed that trade union experience would be included specifically in the criteria for appointment. The TUC organised training for union supported TUC candidates, who were also given extra points by the recruitment agency.

The TUC has continued to maintain close contact with the Advisory, Conciliation and Arbitration Service, whose membership currently includes General Council members Tony Dubbins and Sir Ken Jackson, Deputy General Secretary Brendan Barber and STUC Deputy General Secretary Ronnie McDonald.

This chapter also reports on civil liberties issues, including the implementation of the Data Protection Act 1998.

The General Council’s Representation at Work Task Group has continued to advise the General Council on employment rights and employment relations issues. It has met four times during the year and has concentrated particularly on the Employment Bill, the review of the Employment Relations Act, the employment rights campaign and the Information and Consultation Directive.

Representation at Work Task Group

General Council: Bill Morris (Chair),

Gwenda Binks, George Brumwell, Bill Connor, Nigel De Gruchy, Tony Dubbins, John Edmonds, Andy Gilchrist, Sir Ken Jackson, Mick Leahy, Roger Lyons, Ged Nichols, Brian Orrell, Dave Prentis and Jenny Thurston.

TUC Staff: John Monks, Brendan Barber, Sarah Veale

1.2 Employment rights Campaign

In furtherance of composite resolutions carried at the 2001 Congress, the Representation at Work Task Group has organised an Employment Rights Campaign based on a number of key issues. At the centre of the campaign was a Charter of Workers’ Rights which has now been circulated widely through unions in the form of a campaigning leaflet. This leaflet, intended for use at union conferences and other gatherings, has proved popular with unions and went into three print runs. The Task Group has produced a comprehensive submission to the Government on the review of the Employment Relations Act. It is intended to lobby MPs in the autumn on the basis of the TUC submission on employment rights and to organise a meeting for the Trade Union Group of Labour MPs. The TUC’s submission covers a wide range of issues including all those set out in Composite One at the 2001 Congress. On statutory recognition, the TUC is calling for an end to the small firms exclusion; replacement of the 40 per cent ‘yes’ vote requirement in recognition ballots with a simple majority requirement; training to be included on the agenda for collective bargaining; the replacement of Part 6 of the scheme with a simple regulation that only recognition of independent unions can prevent an application from an independent union for statutory recognition; a guarantee of confidentiality of information on union membership/support; no qualifying conditions for a ballot where union membership is over 50 per cent; shorter negotiating periods and consultation with the other party when an extension is requested.

Where the Act made some changes to the law on industrial action ballots, the TUC submission calls for amendments to ensure that unions do not have to provide detailed information to employers to allow them to ‘make plans’ to offset the effects of the action and a revised definition of a ‘trade dispute’ to cover proposed activities which would affect members in future and to allow for industrial action in associated companies. The Act introduced a new right to protection against unfair dismissal for workers taking part in lawful industrial action. However, this protection only lasts for the first eight weeks of the action. It was reported to the 2001 Congress that a group of T&G members had been sacked by Friction Dynamex after they had been taking lawful industrial action for eight weeks (see below).

The submission also covered individual employment rights issues, including the TUC policy for employment rights from day one, a review of the law on unfair dismissal and a number of changes to the legislation on trade union organisation, including the ten year re-balloting requirement for political fund ballots and the law on the election of union Presidents.

A summarised version of the submission will be produced for lobbying purposes.

The TUC submission was presented to a meeting of the Labour Party Trade and Industry Policy Commission at their request. The Representation at Work Task Group is considering ways of building the campaign in the coming Congress year, taking account of any further motions carried at the 2002 Congress. During the year the TUC office has maintained contact with the Institute of Employment Rights, who are also producing a Charter of Workers’ Rights.

Unfair dismissal of workers taking industrial action:

Friction Dynamex case

Last year 87 T&G members at Friction Dynamex in Wales were sacked for taking part in lawful industrial action. They were protected in law for the first eight weeks of the action but as soon as this protected period ended the employer dismissed them. The General Council have given the T&G full support in their continuing campaign to have their members reinstated and for a change in the law so that protection is unlimited. The union has applied to the Employment Tribunal on the grounds that the employer has made no attempt to settle the dispute, which is over a pay cut and worsening working conditions. At time of going to print, the Tribunal had not heard the case. The General Council lobbied the Government to amend the legislation via the Employment Bill and has also made strong arguments for indefinite protection for workers taking lawful industrial action.

Wilson/Palmer case

As reported to previous Congresses, in 1990, Dave Wilson, a journalist at the Daily Mail (NUJ), and in 1991 Terence Palmer, a dockworker at ABP in Southampton (RMT) both had wage increases withheld because they refused to give up their right to have their wages bargained under a collective agreement. Workers who did agree to this were given the increase. Membership or otherwise of the union was not an issue, neither did either employer attempt to de-recognise the union at that stage, so there was no obvious breach of the law or action likely to provoke a strike. Nonetheless, both unions, with the support of the TUC, applied to the Industrial Tribunal (IT) on the basis that omission from a pay rise amounted to discrimination against them on trade union grounds. The cases were joined by the tribunal and have remained joined. The unions initially won the cases at the IT. The employers appealed and won their appeal at the Employment Appeal Tribunal. The unions then appealed and won at the Court of Appeal (1993).

At this point, the Conservative Government became alarmed and introduced the ‘Ullswater’ amendment to the Trade Union Reform and Employment Rights Act 1993. This amendment said that it was not illegal for an employer to provide inferior terms for trade unionists if this was done to 'further a change in his relationship with all or any class of his employees'. In the meantime, the employers in the Wilson/Palmer cases appealed to the House of Lords and won (1995). This meant that discrimination by ‘omission’ was not discrimination and in any case the new laws said that employers could do this in order to 'further a change, etc' as described above.

Following the House of Lords judgement, the two unions decided to take their case to the European Court of Human Rights. Their application was backed by submissions from the TUC and Liberty. The cases were heard in January 2002 and judgement was given on 2 July. The salient points from the judgement were: '… it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers. Under UK law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. The Court notes that this aspect of domestic law has been the subject of criticism by Social Charter’s Committee of Independent Experts and the ILO’s Committee on Freedom of Association. It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights the respondent State failed in its positive obligation to secure the enjoyment of the rights under Art.11 of the Convention [European Convention on Human Rights]. This failure amounted to a violation of Art. 11 as regards both the applicant unions and the individual applicants.'

The Employment Relations Act 1999 reversed the House of Lords judgement and specified that ‘omission’ was discrimination (Schedule 4). This was helpful but the Act did not reverse the ‘Ullswater’ amendment, despite heavy TUC lobbying and, to make matters worse, a last minute Opposition amendment re-inforced the ‘Ullswater’ amendment by legitimising personal contracts as a legal means of bribing workers to opt out of collective agreements. This clause in the Act has not been commenced; it was agreed between the then Secretary of State and the TUC that the Government would not oppose the Opposition amendment as it would mean at least a six month delay in enacting the Bill but that the Government would not commence that part of the legislation until the ECHR had made a ruling. As reported to Congress previously, the TUC has made formal complaints to both the International Labour Organisation (1997) and the Council of Europe (1997 and 1998) both of which have criticised the UK Government for allowing this form of discrimination against trade union members to continue.

The TUC and the two unions immediately put out news releases warmly welcoming the historic victory. The Government put out a statement saying that the judgement did have implications for UK trade union law and that they were currently reviewing the ERA and would consider what steps may be needed to implement the judgement. The CBI put out a statement saying that the ERA represented a settlement on trade union law and that in their view no further changes were desirable. Under the Human Rights Act 1998, the UK Government incorporated the European Convention on Human Rights into UK law. This means that unions and their members now have a right to go to the UK courts if an employer attempts to offer inducements to employees not to be represented by their union. Their case would be against the Government for failing to uphold Art.11 of the Convention. When the law in the UK is changed, assuming that it is changed effectively, the action would be directly against the employer. The judgement at least means changes in the law on protection against discrimination on trade union grounds are needed to ensure that this includes being represented by a union as are changes in the law on the right to be accompanied. The General Council will include these points in their submission to the Government on the Review of the ERA.

1.3 Employment Bill

It was reported to the 2001 Congress that the Government had announced that it intended to introduce an Employment Bill in November, following consultation on a document Routes to Resolution: Improving Dispute Resolution in Britain. The Bill was published in October and progressed through Parliament during the course of the year. It is anticipated that the Bill will receive Royal Assent in July. Much of the Bill will rely on Regulations, which are expected to be published for consultation in the autumn. The Bill was divided into four parts. Part one on parental rights is covered in chapter two and part four which includes new rights for union learning reps is covered in chapter eight.

Part two: employment tribunal reform

costs

The Bill gave the Secretary of State powers by regulations to authorise tribunals to make costs awards directly against representatives because of the way in which they conducted the proceedings. The award could mean that the representative may not recover his or her fees from his or her client or had to pay the other party’s costs. The Government intended the regulations to define ‘representative’ so as to exclude those who do not charge for their services, primarily trade union representatives, as indicated in the consultation document. The General Council supported this proposal in its response to the consultation document; there were a number of independent ‘consultants’, many of whom had no qualifications, who charged for their services and actively encouraged claims, often with scant regard for their prospects of success. In some cases, they had supported cases which unions had judged too weak to pursue.

The Bill also gave the Secretary of State powers to authorise tribunals to order that one party make payments to the other in respect of time taken in preparing his or her case. The tribunal would make an assessment; under current rules, assessments of legal costs could not exceed £10,000. Such authority could only be exercised in circumstances where the tribunal could already award costs, for example, unreasonable behaviour. Legal costs would be excluded. The General Council opposed this proposal, believing that in effect it would penalise applicants. Employers would be much more likely to spend more defending claims than applicants spend in making them. If they knew that they may be able to add preparation costs into a general costs award, they would be more likely to use legal representation, in order to make their case for costs at the tribunal. Their costs were much easier to quantify, as they were likely to have human resources directors, and other such senior staff, whose time and salary could be taken into account, as well as the loss to the business of tying such staff up in tribunal cases. Applicants, particularly unrepresented ones, may incur very little in the way of quantifiable costs. Where legal costs were also awarded, applicants would be required to pay two sets of costs (double recovery). The General Council and affiliated unions put pressure on the Government to withdraw this proposal. The Government consequently introduced an amendment which said that either legal costs or preparation costs could be awarded but not both in the same case.

Fixed period of conciliation

The Bill introduced a fixed period of ACAS conciliation before a claim was heard in a tribunal. ACAS conciliators already had a duty to promote settlements in a wide range of employment rights disputes which had been or could be made to an Employment Tribunal. ACAS had had to continue to seek a conciliated settlement for as long as the parties wanted to carry on. This sometimes led to ‘tribunal door’ settlements. In the consultation paper, the Government had suggested that this was a result of parties not concentrating on trying to reach an agreement until the reality of the tribunal hearing was close. The objective of the Government was to introduce a system that encouraged an earlier settlement. This part of the Bill empowered the tribunal procedure regulations to include a set period for conciliation, by fixing the date for the hearing to allow such conciliation to take place for a prescribed length of time before the hearing. The time would be set out in regulations and could be extended if the conciliator felt that settlement within a short additional timeframe was likely. ACAS’s ‘duty’ to conciliate cases would become a ‘power’ after this period had ended. The General Council queried whether this proposal would have much effect on the likelihood of conciliated settlements.

Application forms

The application and respondent forms for Employment Tribunals (ET1, 2 and 3) had had no particular status under the Tribunal Rules of Procedure and parties were free to use other forms to write out their applications or notices of appearance. The Bill gave the Secretary of State powers to prescribe a form to be used. The Government believed that this would ensure that more information was provided to the tribunal which would help it to decide whether or not a pre-hearing review was needed and how long to allow for the hearing. An assessment of the other side’s case could be made, which the Government believed would encourage settlement. The Bill also allowed the Secretary of State to prescribe that certain documents, such as the written statement of employment particulars, should accompany either form. The General Council did not object to this proposal. The DTI was intending to ensure that the Employment Tribunal Service included on the ET1s and ET3s sections relating to use of procedures (see below) with careful explanation in the booklet which was issued with the forms. Some of the proposed new provisions were complex and would need to be very clearly explained to parties.

Determination without a hearing

The Bill allowed the tribunals to authorise cases to be heard without a hearing in certain circumstances. Such circumstances would be where both parties had given consent by signing a form waiving their rights to an oral public hearing following independent advice, including from their trade union in the case of the applicant. The tribunal would have powers to override such a waiver if they felt that the circumstances made it necessary to hold an oral hearing notwithstanding the views of the parties. The General Council did not object to this proposal.

Practice directions

The President of the Employment Tribunals did not have the powers to issue practice directions, although the President of the EAT did. This had led to the Regional Tribunals adopting different practices and procedures. In the recent TUC backed part-time workers’ pension claims (Preston and others v Wolverhampton NHS Trust and others) reported in chapter five, this caused chaos and confusion on more than one occasion during the lengthy proceedings because of the difficulties of running 60,000 concurrent claims. Notwithstanding the General Council’s recommendation to the Government to allow the tribunals to hold representative hearings in such cases, it would have been extremely helpful if the President could have issued directions in these, and other, cases. The General Council therefore welcomed clauses in the Bill which gave the President powers to issue practice directions.

Pre-hearing reviews

Tribunals could already conduct preliminary considerations, or pre-hearing reviews. If it was found during that review that the party’s case was a weak one, the tribunal could require the applicant to pay a deposit of up to £500 as a condition for continuing with the case. Only on refusal to pay may the case be struck out. The power to strike out was rarely exercised by tribunals. The objective in the Bill was to allow the tribunals to strike cases out at an earlier stage. The power to require a deposit remained and the DTI expected this to continue as the main sanction. The means of achieving this were by removing the word ‘preliminary’ in the Employment Tribunals Act 1996 so that it was clear that such reviews were not necessarily ‘preliminary’ but could lead to a strike out.

The DTI gave examples of the sort of weak cases which could be struck out. These included cases where the facts had already been litigated and there was no fresh evidence; cases where the facts were not in dispute but the interpretation placed on them by one party was clearly wrong; cases where the party had no further witnesses or evidence following a pre-hearing review and it was clear that he or she would not be successful. The General Council took the view that it was unlikely that the tribunal would be any more willing to use strike out powers at this stage than they were at the hearing stage. Unions would wish to monitor the use of this new power. If it was inappropriately used, applicants would be able to appeal to the EAT. One of the main disadvantages of pre-hearing reviews was that they were not normally conducted by the full panel. Recently the EAT had criticised Chairs sitting alone for not fully understanding the facts in pre-hearing reviews and had urged them to go for full hearings using the ‘industrial jury’ where the facts were disputed.

Part three: Dispute Resolution

Statutory dispute resolution procedures

The consultation paper had proposed that employers and employees should adopt and use minimum procedural standards in the workplace. The General Council welcomed the proposal to make it obligatory for all employers to have and to use dispute resolution procedures (DDP)s. This new obligation on employers, with the linked entitlement of workers to be 'accompanied' in disciplinary and grievance hearings, extended an important new protection to millions of employees currently denied access to basic procedures. Because the right of accompaniment had only applied in formal hearings, or where it had been custom and practice to have a hearing, where employers had had no procedures and had not held hearings, effectively the accompaniment right was meaningless. This change would rectify that anomaly. Additionally, all employers, with no small firms exemptions, would be required to set out these minimum procedures in the employee’s written statement or employment contract.

Nevertheless, the General Council had concerns about potential confusion between the proposed minimum standards and the widely supported ACAS Code, and about the limited nature of the minimum procedures proposed. The General Council called for all employers to be obliged to have and to operate procedures in line with the ACAS Code. Under current law tribunals must consider the existence and use of disciplinary procedures in unfair dismissal cases. A failure by employers to use procedures properly could result in a determination of unfair dismissal, notwithstanding the merits of the claim in other respects. The ACAS Code must be taken account of when tribunals considered unfair dismissal claims and whether or not the employer’s decision to dismiss was fair.

In discussions between the TUC, CBI, DTI and ACAS it was common ground that the new DDPs should be incorporated into the existing ACAS Code so that they operated as an integral part of the Code and other important aspects of the Code, for example, the use of proper investigatory procedures did not become detached. This would be determined in the regulations. A further point of concern to the General Council was that the DDPs did not explicitly refer to the right to be accompanied. The DTI maintained that there would be legal problems with including this new right on the face of the Bill, as it could have the effect of distorting the relevant provision in the Employment Relations Act (ERA). This was because the ERA was prescriptive about the situation in which the right was triggered in relation to a grievance hearing - it must relate to a duty in the contract of employment. The DTI was concerned that if the right to be accompanied were to be specified in these DDPs it would have to be spelt out in technical detail otherwise the scope of the ERA might be unintentionally widened. The General Council argued that not to have the right set out in the DDPs would mislead employers and that if the wording were to be conditional and properly cross-referenced there should not be a problem with unintentional widening. Furthermore, as the DDPs were to be specified in written statements of employment particulars as a default employees should be informed of this important and relevant statutory right. Following these representations, the DTI amended the Bill so that the right to be accompanied was linked in to the DDPs.

Contracts of employment

The Bill made it an implied term of every contract of employment between an employer and an employee that a statutory procedure was to apply in circumstances specified by the Secretary of State in regulations. This clause was welcomed by the General Council. It would not be possible for parties to contract out of this implied term.

Non-completion of statutory procedure: adjustment of awards

The Bill contained provisions requiring employment tribunals to vary compensatory awards when there was a finding of unfair dismissal for failures to use the statutory procedures before applications were made to employment tribunals. Unless there were exceptional circumstances, the variation must range between 10 per cent and 50 per cent of the award. In exceptional circumstances where a variation on that scale would be ‘unjust or inequitable’, tribunals may vary the award by less than 10 per cent or they may decide to make no variation at all. The jurisdictions were listed in Schedule 3 to the Bill; together they made up the majority of tribunal claims; the Secretary of State was given powers to add or remove jurisdictions. She or he could also make provision as to how these procedures would apply, in particular, where exemptions were allowed. These provisions were welcomed by the General Council.

Consequential adjustment of time limits

The Bill gave the Secretary of State powers to make regulations about time limits for beginning certain proceedings in a tribunal. In particular, regulations would cover extending the time for beginning procedures, the exercising of discretion to extend the time for the beginning of proceedings and treating proceedings begun out of time as having been begun within time. The General Council suggested a general extension of the time limits to six months in all jurisdictions as a simpler solution. There could be a considerable extension to the total time spent in resolving issues if the extension was used, followed by a fixed conciliation period, pre-hearing procedures then a hearing. As the current waiting time at the EAT was on average a year, if there were to be an appeal, cases could take up to two years to complete.

Non-completion of statutory procedures: exclusion of claims

The Bill provided that the Secretary of State may regulate, under the jurisdictions listed in Schedule 3, to prevent a claim being made, or a claim being heard, at an Employment Tribunal unless any specified step had been taken under the appropriate statutory procedure (ie. those set out in Schedule 2, see above). The word ‘any’ was added following representations by the General Council and meant that the employee need only have taken the first ‘step’ in the relevant statutory procedure. The procedure would not need to have been followed through all its further steps. Raising the issue would, at least, provide an opportunity for the employer to respond and seek to resolve the matter internally while not denying the individual the right to lodge the claim with the tribunal after taking that step.

The DTI gave the TUC an assurance that it was not intended for unfair dismissal to be included in the regulations under this clause of the Act. In other words, the new requirement would not apply to dismissals (with the possible exception of constructive dismissal - see below), only to grievances, which was a considerable improvement on the original proposal.

In meetings between TUC and DTI officials, the DTI set out their intentions in terms of the regulations enabled by this clause. They agreed that the proposal could produce a whole new area of litigation in the tribunals, as parties disputed whether and at what stage a procedure had been used, if indeed one was in place at all. They therefore amended the Bill to set out two steps that must have been taken in order for an application to proceed. Firstly, the relevant party must have set out in writing the basis of their grievance or reason for instigating disciplinary proceedings. Secondly, a response would have to be forthcoming, or a disciplinary process set in motion within a specified timescale.

The intention of the Government was for the power to exclude to relate only to employees still in employment, who had grievances with their employer which could lead to a tribunal claim. The likely exception was in cases where the employee was claiming constructive dismissal, where it was likely that they would be expected to initiate a grievance procedure notwithstanding that they were no longer employed by that employer. Where a trade union was engaged in collective resolution of a grievance there would be no requirement for individuals affected to use procedures. Where there was some compelling reason not to require the employee to use a procedure, for example if the grievance involved bullying or harassment and the hearing would be conducted by the party accused of the harassment, or they were in some way implicated, there would be an exemption. The TUC would be consulted on the potential areas for exemption.

The General Council pointed out a number of potential problems, including where there were proposed tribunal applications under more than one head of claim, for example, sex discrimination and unfair dismissal; how this procedural requirement would fit in with the proposed fixed conciliation period (see above); where the employer has already taken action, for example, an unlawful deduction.

The Bill provided that where an employer dismissed an employee without having a procedure in place, or without allowing the employee to use it, the dismissal would be automatically unfair. The General Council pointed out that there would be procedural difficulties in the tribunal where the employer contested this. The case would be heard as part of the preliminary procedures in the tribunal but could easily revolve around the more substantial issue of the grievance. For example, if the employee was arguing that they should be exempted because the person conducting the hearing was the alleged harasser, in order to reach a decision, the tribunal would have to look at the substantial allegation before the full hearing. An additional problem would be that most preliminary hearings were conducted by the Chair sitting alone, whereas the TUC would argue that a full panel should look at substantial issues.

Procedural fairness in unfair dismissal

The Bill inserted a new section into the Employment Rights Act 1996 which would oblige tribunals to disregard failures by employers to take procedural actions, outside the context of the proposed new statutory procedures, provided that such additional procedural actions would have had no effect on the decision to dismiss. The new section would, however, make it unfair for an employer to dismiss an employee without meeting their obligations under the relevant new statutory DDP in Schedule 2 and provided that an employee would receive a minimum of four weeks pay as compensation where they were found to have been unfairly dismissed and the DDP had not been complied with. In other words, at the second stage of the tribunal proceedings, where the substantive element of the claim was heard, if the employer was found to have unfairly dismissed the employee, there would be an additional four weeks pay added to the compensation. The compensation could itself be varied by between 10 and 50 per cent, as indicated above, if procedures had not been followed.

This new provision meant where the dismissal was not found to be substantially unfair and the employer had used the new statutory procedure, but had made ‘minor’ procedural errors outside the statutory provisions, the dismissal would not be found to be unfair as a result of the procedural errors unless to have used them would have made a difference to the outcome. In effect, this reversed the ‘Polkey’ principle whereby failure to use procedures fairly would render a dismissal unfair, even if to have used the procedure would have made no difference to his or her decision to dismiss. In response to complaints by employers that they were often found to have unfairly dismissed purely for procedural reasons the Government had decided that the Polkey principle must be reversed.

The General Council expressed serious reservations about this proposal. The standards set by Polkey reflected the accumulated experience of many tribunal cases as to what constituted fair procedures. Unfair dismissal legislation was already biased towards employers, in particular under the ‘band of reasonable responses’ test. The proposed downgrading of the procedural protections was inconsistent with the spirit of the Government’s proposals to require employers to have procedures in place and would encourage employers to ignore all but the most basic of procedural requirements. It was a characterisation to suggest that employers could get off the hook for ‘trivial’ reasons; not applying proper procedures fairly was a serious matter; the tribunals already had and did exercise discretion in how and in what circumstances they found a dismissal unfair for procedural reasons. It was wrong in principle for the Government to provide employers who misused procedures with a defence, in contrast to their stated aim of ensuring that employers adopted and used acceptable procedures and their assurances that there was no intention of undermining the ACAS Code. Following representations from the General Council and from affiliated unions, a helpful amendment was accepted by the Government, which said that if the procedural breach would ‘by itself’ not have made a difference the dismissal would not be unfair. The General Council took the view that although this was helpful it did not go far enough and they will continue to press the Government to review unfair dismissal law, which is now distorted by case law which favours employers.

Procedures relating to discipline or dismissal

Currently, an employer is obliged to provide an employee with details of their main terms and conditions not later than two months after they start work. On the matter of procedures, employers who employ fewer than 20 employees currently only need to say to whom the employee can apply for redress of any grievance relating to their employment and the manner in which such an application should be made. Where employees are not issued with such a statement, or a subsequent change is made, they can apply to an Employment Tribunal to determine which particulars should have been included or referred to. There is currently no other sanction for failure to provide the written statement.

The General Council welcomed the proposal to improve the legislation on written statements; the employment relationship was of fundamental significance when disputes arise and must be set out clearly in writing. The Bill would make a number of changes which should help to achieve consistency across employers, regardless of how many or how few they employ, and inform employees about their right to a fair hearing on a grievance or disciplinary issue. The Bill also provided for the part of the written statement dealing with disciplinary and grievance matters to cover the procedure which applies when an employee is dismissed or disciplined, whereas at present it must only describe what they must do if they are dissatisfied with disciplinary action taken against them. The new proposal would ensure that all stages of the new statutory procedures were set out in the written statement or contract of employment, and was welcomed by the General Council. The current exemption relating to small businesses was removed and was particularly welcomed by the General Council, as the majority of unfair dismissal claims come from the small business sector. All employers, regardless of size of business, would now have to set out the minimum statutory procedures in the written statement (or contract of employment).

There was also provision in the Bill for tribunals to award compensation to an employee where the lack, incompleteness or inaccuracy of the written statement became evident upon a claim being made under specified tribunal jurisdictions. This would be done by requiring the tribunal to increase any award made against the employer in respect of the complaint under the particular jurisdiction by between the greater of 5 per cent or one to two weeks pay and 25 per cent, according to whether the statement was incomplete or inaccurate, or had never been issued at all. One to two weeks pay would also be the award where compensation was not a remedy available for the particular jurisdiction or where it was not the remedy that the tribunal chose.

Compromise agreements

In their consultation paper the Government said that they wanted to broaden the scope of compromise agreements so that they did not have to relate to the ‘particular complaint’. The TUC argued that it was not necessary to make this change and expressed concern about the exclusion of personal injury claims and the possibility of employers forcing unrepresented employees to sign away future rights in relation to tribunal proceedings. The Government agreed to delete this clause at the House of Lords stage following pressure from Labour Party and trade union peers.

The General Council also lobbied the Government to introduce a clause into the Bill to remove the eight week limit on unfair dismissal protection for workers taking lawful industrial action (see above). Sympathetic MPs and peers tabled helpful amendments. A meeting was held with the Secretary of State to make representations about this and other concerns relating to the Employment Bill.

1.4 Statutory recognition

The TUC has continued to provide support for unions submitting claims to the Central Arbitration Committee for statutory recognition. Under the TUC Disputes Principles and Procedures, unions are required to notify the TUC of all intended applications to the CAC for recognition. Generally, this provision has been observed by unions and the TUC has been able to provide support and guidance to unions using the scheme as well as avoiding some potential inter-union difficulties. The General Council have monitored developments closely and regularly receive reports on significant cases. The office has maintained a close working relationship with the Chairman and the Chief Executive of the CAC. The most outstanding feature of the statutory scheme is its impact on voluntary recognition, where there has been a huge increase for the third year running in the number of agreements signed - from 149 in 1999/2000 to 500 in 2000/2001.

At time of going to print, there had been 190 applications to the CAC for recognition. These came from 21 affiliated unions and three non- affiliated unions. Thirty eight applications had resulted in recognition, 13 had failed to get recognition. The remainder were still in the process, or had withdrawn, in many cases because a voluntary agreement had been concluded. During the year there were two significant judicial reviews of CAC decisions, both at the instigation of employers. In the first, relating to the ISTC and Fullarton Computers case the application was made on two grounds: the employer had not been allowed access to the union’s membership list and the case manager had made a decision on when to conduct a membership check, instead of the full panel. The judge decided that the employer had no right to demand access to the union’s list as he had previously agreed that such lists would remain confidential to the CAC, and that the case manager had consulted the panel throughout and had been right to conclude that there was no need to hold a hearing on every issue. He also helpfully added that the courts should have confidence in CAC panels as expert ‘industrial juries’ and not interfere unless absolutely necessary. He was dismissive of the attempt by the employer to argue a Human Rights Act point.

In the case of T&G and Kwikfit (London) the union had successfully argued that the bargaining unit should be all employees in the two London centres. The company had argued that the bargaining unit should be the national operation. The company had applied for judicial review on the grounds that the CAC had failed to look at what would be the most appropriate bargaining unit and had instead simply decided that the union’s proposed bargaining unit was compatible with effective management. The court found against the CAC. The Court of Appeal (CA) subsequently overturned the High Court judgement and the union went on to win recognition at Kwikfit in London. The issue was whether the CAC had acted in accordance with the law when determining the bargaining unit. The CA ruled that it had, holding that the CAC must make its determination in two stages. It must start with the union’s proposed bargaining unit and determine whether that was appropriate, taking into account any argument which the employer may make in support of a different bargaining unit. The second stage only occurred if the CAC considered that the union’s proposed bargaining unit was inappropriate; at this stage, the CAC may decide on a different bargaining unit. In determining what was an ‘appropriate’ bargaining unit, the CA said that this was a modest test and did not mean the optimal unit. This was similar to the directions given to panels by the Chairman at the outset, that they were not to attempt to arrive at an ideal bargaining unit but rather to agree one which was appropriate to the particular circumstances of each case. The CA decision was extremely helpful to unions and should assist the General Council in its submission to the Government on the review of the ERA.

Other issues of concern have included the problems posed by companies splitting into smaller units in order to benefit from the small firms cut off. In the case of GPMU and John Brown/Derry Print, the CAC decided that the two companies were in fact associated businesses and together the number of workers employed exceeded the 20 limit. This was a helpful decision to the TUC. Less helpful was a decision in Amicus-MSF and Jaguar Unipart in which the panel held that the union had not properly implemented its own Rules when conferring reduced membership rates on members in the bargaining unit. The panel concluded that those who had paid that rate were not properly union members and could not be counted as such. Following this decision the General Council issued advice to unions about their own Rules in relation to CAC applications.

The General Secretary also made representations to the Chairman of the CAC on a number of other issues, including extensions of the timetable and the costs of statutory recognition ballots. The General Council have regularly received reports of these and other important developments and posted them on the password protected part of the TUC website. A revised TUC Guide to the statutory procedure is being prepared, taking into account important decisions made at the CAC since the scheme was introduced.

Network of Union Officers

It was reported to the 2001 Congress that the General Council had set up a Network of Union Officers in order to encourage better relations between unions and to avoid damaging inter-union disputes over the statutory recognition scheme. The TUC Disputes Principles and Procedures require affiliated unions to appoint a senior officer to act as a contact point on relations with other unions and issues relating to recognition and representation. The TUC has set up a database to which each union nominee has access. There have been three meetings of the Network this year. At one meeting, the Chief Executive of the CAC made a presentation and discussed issues of concern with union officers. The Network has proved to be valuable in settling some potential inter-union issues during the year (see chapter 14).

1.5 Information and Consultation Directive

The EU Directive on Information and Consultation was formally adopted by the European Commission on 23 March. The UK Government has been permitted a staged implementation, so that it will apply to undertakings employing at least 150 by March 2005, undertakings employing at least 100 by March 2007 and undertakings employing at least 50 by March 2008. The Representation at Work Task Group heard presentations from the Minister responsible, Alan Johnson, and from Mark Hall of Warwick University at their meeting in June. In his address the Minister said the Government had not yet made decisions on the key issues for transposition. The review of the current laws on consultation on collective redundancies, which the Government had conducted before the general election in the light of the problems at Vauxhall and Corus, would now be subsumed into the transposition of the Information and Consultation Directive.

The Government was keen to engage support from the business community, which had been hostile to the concept of the Directive. They would therefore be proposing approaching the transposition on a Partnership basis and an initial discussion document would attempt to contextualise the Directive and suggest ways of maximising existing good practice, rather than setting out detailed options for transposition at this stage. This initial discussion document was published in July and circulated to affiliated unions for comment. The General Council will submit their views to the Government in the autumn, taking account of the views of affiliated unions. The DTI would be organising national and regional discussion forums. After this discussion process had concluded, probably by the end of this year, the Government would make detailed proposals for the transposition; there would be full consultation on those proposals.

The discussion paper drafted by Mark Hall, with an introduction from the general secretary was circulated to affiliated unions in June for internal discussion purposes. The Task Group also discussed a draft statement for Congress, a copy of which is set out below. The statement sets out six principles for transposition. If endorsed by Congress, these will then form the basis for TUC discussions with the DTI on the detailed issues for transposition.

UK implementation of the EU employee consultation Directive: General Council Statement

The TUC firmly believes that the UK needs to have more high performance workplaces. To achieve this it is necessary also to have high trust relationships between workers and employers - workplace partnership. The problem in the UK is the lack of any effective universal workplace institutions that can create a framework for the development of high trust relationships.

This problem could be overcome if the Government were to see the Information and Consultation Directive as a tool for creating that framework.

The TUC will insist on full and effective UK compliance with the Directive. A central trade union concern will be to ensure that UK implementing legislation not only provides robust new rights to information and consultation but does so in a way which enhances existing union recognition and bargaining arrangements. The legislation must also be clear and sufficiently detailed so that employers, unions and employees know what is expected of them.

Key TUC objectives are set out below.

Employee representatives

The UK’s implementing legislation should be based on the principle that information and consultation should be via the representatives of independent trade unions recognised by employers, where recognised unions are present, and otherwise via representatives elected by employees. In other words, the legislation should prioritise consultation with representatives of recognised unions where possible, and regulate the way in which employee representatives are to be chosen in other circumstances to ensure their independence. Clear precedents exist for this approach. It is the model followed by the redundancies and transfers legislation, as amended in 1999, and a range of other provisions in UK legislation.

Permanent arrangements

Effective implementation of the Directive demands the creation of permanent information and consultation arrangements. It is completely implausible to suggest that, in practice, employers could realistically meet the Directive’s ongoing information and consultation requirements on an ad hoc basis.

Negotiated agreements

UK legislation should allow employers and unions/employees to determine the practical arrangements for information and consultation by means of negotiated agreements. This will provide the basis for safeguarding existing arrangements where they are working well and tailoring new arrangements to the particular circumstances of the undertaking. However, agreements that provide solely for direct employee involvement rather than via representatives cannot be regarded as meeting the Directive’s requirements.

Trigger mechanism/statutory fallback arrangements

In the absence of agreed arrangements, there should be a statutory procedure enabling recognised unions or employees to initiate negotiations with management about establishing the necessary information and consultation arrangements, and to refer the issue to the Central Arbitration Committee if management fails to respond or the negotiations fail.

Statutory fallback arrangements should ultimately be applicable. These would need to provide a basic constitution for an appropriate information and consultation arrangement. There are precedents for such an approach in the form of the Trade Union Recognition (Method of Collective Bargaining) Order 2000 and the ‘subsidiary requirements’ set out in the schedule to the Transnational and Information and Consultation of Employees Regulations 1999.

Clarifying the information and consultation requirements

The UK legislation will need to clarify the Directive’s information and consultation requirements, particularly in terms of timing and subject matter, with the aim of ensuring that the required procedures are effective and cannot be treated as a cosmetic exercise by employers.

A crucial area needing clarification is the requirement for information and consultation 'with a view to reaching an agreement' on 'decisions likely to lead to substantial changes in work organisation or in contractual relations'. The UK legislation should be specific about when the information and consultation process should begin and should make clear that this must be before any management decision has been taken so that it is capable of influencing the outcome.

The UK legislation should also clearly spell out the subjects on which consultation must take place, particularly the range of restructuring and other issues covered by the phrase 'substantial changes in work organisation or in contractual relations'.

Enforcement and sanctions

The UK legislation must provide speedy and accessible mechanisms for resolving disputes about its application, with effective sanctions to ensure compliance. Existing enforcement arrangements under the Transnational and Information and Consultation of Employees Regulations and statutory trade union recognition procedure provide a suitable model for most aspects of enforcement. In addition, however, the TUC believes that the UK’s implementing legislation should provide for injunctive relief so that employers who fail to inform and consult properly, whether under agreed arrangements or statutory fallback arrangements, can be made to revert to the previous position.

1.6 Employment Tribunals

A number of changes to Employment Tribunal procedures were included in the Employment Bill (see above). In April, the Government started to conduct a round of nominations for lay members of the Employment Tribunals. There had been considerable problems with the previous recruitment exercise, which had been the first carried out under the Nolan principles, whereby the positions were publicly advertised rather than sponsor bodies, primarily the TUC and the CBI, being invited to nominate suitable candidates. In discussions with the DTI, the TUC persuaded them not to use the same recruitment agency again and to establish selection criteria for the employee side of the tribunals which would give proper weight to trade union experience. In addition, they would award specific points to those candidates who were endorsed by the TUC. The General Council invited unions via the TUC MAIL to propose limited numbers of trade unionists to the TUC for endorsement. Unions were particularly urged to support women, black and disabled candidates, as workers in these categories were under-represented on the Employment Tribunals. The General Council also provided training in application and interviewing techniques for TUC sponsored candidates; this was attended by 67 candidates.

Employment Tribunal System Task Force

In the autumn the DTI set up the Employment Tribunal Systems Task Force, which was given the task of examining the operation of the Employment Tribunals and making recommendations for change. The TUC was represented on the Task Force by the Deputy General Secretary, Brendan Barber. The Task Force is due to present a report and recommendations in the summer of 2002. Stakeholders were invited to submit their views to the Task Force on current operational issues. After consulting with affiliated unions, the General Council submitted their views in March. In summary, they suggested:

· Greater use of online facilities at all stages of the process;

· Much more consistency in case handling across the regions;

· Fair treatment of parties when granting postponements; the other party always to be consulted before a postponement is granted; more rigorous use of penalties where representatives unnecessarily delay proceedings; a better understanding of the resource limitations for ‘not for profit’ representatives;

· Greater resources for the ETS and for ACAS;

· Less use of formal court etiquette and language;

· Standard use of directions hearings;

· More use of pre-listing enquiries and greater attempts to minimise ‘floating’ cases;

· A better career structure and improved conditions for tribunal staff;

· More to encourage parties to use ACAS conciliation and mediation services;

· More systematic involvement of User Groups;

· A mechanism for joining multiple claims involving the same facts;

· Guidance which discourages parties from using legal representatives where it is not necessary.

· Availability of reasonably priced photocopying, faxing and computer facilities in all offices.

The General Council have continued to produce the Employment Tribunals Newsletter three times a year. It is available on a subscription basis and remains popular with unions. It provides information on new employment legislation and on case law developments of particular relevance to unions.

1.7 Teleworking

It was reported to the 2001 Congress that the EU Social Partners had agreed to start negotiations on a non-legally binding agreement on the regulation of telework. The General Council had approved the proposed ETUC mandate. A final draft agreement was approved by the ETUC Executive in June (see also chapter six). The agreement was to be implemented by the members of the signatory parties in accordance with national practices and procedures specific to management and labour. Although in the UK there were no national practices and procedures to this end, the CBI had indicated to the TUC that they were willing to meet with a view to agreeing a joint voluntary code. The DTI had offered to assist in this process. A number of voluntary agreements had already been reached at European sectoral level, including in retail and in telecom.

The agreement did not specify the employment status of telework, which was a matter determined elsewhere. It ensured protection in terms of privacy, health and safety, and use of equipment and also guaranteed equal access to training and to trade union representation. Provision was made for implementation within three years, with monitoring at EU level by the social dialogue committee. A report would be made within four years of the signature of the agreement. The General Council endorsed the decision of the ETUC Executive Committee and agreed to approach the CBI with a view to agreeing a joint voluntary Code for the UK. A negotiating team including senior officers from affiliated unions will be established to conduct the negotiations with the CBI. The General Council will monitor developments.

1.8 Civil liberties issues

Human rights

Throughout the year, the TUC has continued to monitor the impact of the Human Rights Act 1998 on UK workplaces and employment law. Undoubtedly, the most significant development in this was the successful outcome in the Wilson and Palmer case (see above). Otherwise, limited progress has been made, with the exception of a series of cases considering the impact of Article 6 on the right to a Fair Trial and employment tribunal procedures. Throughout the year consideration and advice has also been given to the human rights implications of policy developments, including legislation on asylum and immigration issues and the recently launched Home Office consultation on entitlement cards.

In April, the TUC hosted, in partnership with Justice, a one-day conference on ‘Ensuring Equality: Do we need Protocol 12?’. The conference which was sponsored by Bindman and Partners Solicitors included a range of speakers including Jeroen Schokkenbroek from the Council of Europe; Professor Sandra Fredman from the University of Oxford; and Art Hendriks from the Dutch Equal Treatment Commission. The Conference considered why the UK Government should ratify Protocol 12 of the European Convention on Human Rights. Speakers from the TUC also considered how unions might campaign for a free standing human right to equality.

Data protection

Privacy at work, and in particular the controversial issue of email and internet monitoring, have once taken a high profile this year. Advances in technology enable employers to obtain, store, use and disseminate substantial amounts of information about individual workers, while surveillance techniques in the workplace are becoming ever more sophisticated and intrusive.

Last year the debate focused on the introduction of the Lawful Business Practice Regulations, dealing with the interception of communications. At the time, the General Council criticised the scope of the Regulations, for providing too wide a licence to intercept workers’ telephone calls and email messages. This year, attention turned to the introduction of the Data Protection Act 1998, which implements the EU Data Protection Directive 95/46 and which came virtually fully into effect on 24 October 2001.

The new Data Protection Act has potentially wide application, creating substantial new protections from blanket or unjustified surveillance at work, as well as creating important new rights for workers to access personnel and disciplinary files. In September, the TUC held a seminar for unions on the new Data Protection Act in partnership with Russell, Jones and Walker solicitors. Issues covered included new rights in the workplace and workplace policies; managing databases and filing systems; subject access requests from members; direct marketing; and industrial relations issues, including ballots and elections. Speakers included David Smith, Assistant Commissioner from the Information Commissioner’s Office and Professor Aileen McColgan from King’s College, London.

One of the disappointments this year has been the delay in the publication of the Information Commissioner’s Employment Practices Data Protection Code of Practice. The Code is likely to prove a valuable tool for unions in negotiating workplace policies on surveillance issues. The Commissioner first published a draft Code for consultation in October 2000. Following extensive employer lobbying, last year the Commissioner decided to carry out a further round of consultation. This took the form of a series of meetings with key stakeholders, including the TUC and CBI. To date three meetings have taken place to discuss sections of the Code on recruitment and selection; managing employment records and monitoring at work. A fourth meeting on drugs and alcohol testing policies is pending.

The process has proved useful, with the Commissioner agreeing to amend the Code to recommend that unions and worker representatives should, as a matter of good practice, be consulted on the preparation and implementation of workplace policies on data protection. The Code will also clearly state that it applies to all workers and not only those which qualify as ‘employees’. In July, the Commissioner announced a further round of consultation of the highly controversial guidance on monitoring at work. The TUC is preparing its response which will call on the Commissioner to publish clear guidance as soon as possible. The TUC is preparing briefings for unions on the data protection policies at work, for publication once the Code of Practice is completed.

1.9 EU Initiatives on ‘atypical work’

The use of non-standard, flexible working relationships has become increasingly a feature of working life in the UK, while the range of contractual relationships which individuals enter in the workplace has never been more varied. In recent years the European Union has introduced a number of legislative measures aimed at balancing the interests of employers with the need to protect workers engaged in non-standard employment, including Directives on part-time work and fixed term work and most recently a proposal for new rights for temporary agency workers.

Fixed-term contracts

The Government is still in the process of implementing the EU Fixed Term Directive, through section 51 of the Employment Act 2002 and the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The Regulations are due to come into effect on

1 October 2002.

Throughout the year, the TUC has engaged in full consultation on the Regulations and has participated in regular meetings of the social partner working group established by the DTI. During the summer a high profile campaign was launched on Ending the Two Tier Workforce.

A new TUC website was created to host the campaign. Part of the website included a web-based questionnaire for students, set up in partnership with the NUS.

The campaign focused on a number of the General Council’s key concerns. In particular, it called on the Government to include rights to equal treatment for fixed term workers to be extended to include pay and pensions. In August, the TUC published Permanent Rights for Temporary Workers which contained the findings of a survey of over 200 union workplace representatives on temporary workers’ terms and conditions. The report highlighted the extent of discrimination faced by temporary workers. In November, the Government announced it would include pay and pensions in new rights for temporary workers and cited the TUC’s findings as one of the main reasons for the decision.

The second issue profiled in the campaign was the Government’s proposal to limit new rights for individuals in temporary work to those who legally qualify as ‘employees’. The TUC commissioned the opinion of leading Counsel on this issue, which confirmed the General Council’s view that by adopting this restrictive approach the Government was failing to implement the Directive effectively. The opinion was submitted to the DTI in January. Although the regulations will not apply to all ‘workers’, the Government has indicated it will revisit the issue in the employment status review.

In April, the TUC submitted a full response to the DTI’s second round of consultation on fixed term work. While generally welcoming the regulations, it also highlighted a number of concerns. Notably, the General Council opposed the adoption of the option of a ‘package’ approach to assessing differential treatment. It also expressed concerns over the restrictions on the range of comparators available to fixed term employees who consider they are not receiving equal treatment, arguing for the use of a hypothetical comparator.

Following pressure from the TUC and unions, a number of welcome changes have been made to the Regulations, including use of a narrower definition of ‘trainees’ who are to be excluded from the new rights for fixed term workers. As a result, individuals involved in the New Deal subsidised employment option, and fixed term employees who receive training funded by the Government or from EU sources as part of their wider employment, should no longer be excluded from the new rights.

Part-time work

In February, the DTI announced a consultation on amendments to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. Firstly, as a result of the Fixed-term Work Directive, the DTI proposed to remove the requirement that a part-time ‘fixed-term’ worker must be compared with a full-time ‘fixed-term’ worker, rather than a full-time ‘permanent contract’ worker. Secondly, they proposed to remove the two-year backdating limit for pension schemes in Regulation 8(8), so as to comply with the House of Lord’s judgement in Preston v Wolverhampton NHS Trust (also reported above and in chapter five).

In April, the General Council submitted a response welcoming the amendments, both of which had arisen as a result of union activities. The General Council also reiterated concerns over the inadequacies of the comparator mechanisms in the Part-time Worker Regulations.

Proposal for a temporary agency worker directive

In March 2002 the EU Commission decided to adopt a proposal on temporary agency work, following the breakdown in social partner negotiations. In July, the Dutch Socialist Rapporteur on the Directive, Ieke van den Burg visited London to ascertain the potential impact of the proposal on the UK employment agency sector, agency workers and the wider workforce. This visit offered an important opportunity for trade unionists to influence the first reading report to be presented to the European Parliament in October.

As highlighted in chapter six, the TUC is also working closely with colleagues from the ETUC to try to ensure that the Commission’s proposal is not substantially amended through the co-decision process in the Parliament and Council of Ministers. Key issues for the General Council will include attempts to remove the six week threshold for rights to equal treatment for agency workers and the retention of the right for agency workers to identify a comparable worker employed in the user enterprise. The TUC has lobbied and prepared briefings for MEPs on these issues.

In July, the DTI launched a four month consultation on the proposed Directive on Temporary Agency Work. Views gathered through the consultation will be fed into debates in both the Council of Ministers and the European Parliament due to take place in the autumn. In line with a Resolution adopted at Congress 2001, the TUC is preparing over the summer to launch a new campaign on agency worker rights. A survey is being undertaken of agency workers’ terms and conditions and of agreements negotiated by unions covering agency workers, the findings from which will be used as part of the TUC’s response to the DTI consultation.

Employment status review

In July, the DTI launched the long-awaited employment status review under section 23 of the Employment Relations Act 1999. The review, which will last for six months, is wide-ranging in scope covering key groups of workers who, due to the nature of their employment relationship, fail to qualify as ‘employees’ and are therefore excluded from core employment rights, including unfair dismissal, family friendly and some collective rights. These include so-called ‘casuals’, who are employed on an ‘as and when required’ basis, home-workers, freelancers, and agency workers. The review will also consider other categories of workers, including office holders and seafarers, who have been expressly excluded from basic statutory rights.

In December, the TUC organised the first of a series of seminars looking at the scope and potential impact of the review. Speakers included Professor Simon Deakin from the University of Cambridge, who is one of the leading experts in this field.

In line with the Resolution on casualised employment adopted at Congress 2001; the TUC will soon launch a high profile campaign aimed at seeking to ensure that the Government acts on the outcomes of the review to extend employment rights to atypical workers. This campaign will form part of the TUC Employment Rights Campaign for Modern Rights for Modern Workplaces. A new TUC website will also be prepared to host this campaign. The TUC is also preparing to survey union officials and workplace representatives on terms and conditions of agency workers, casuals and freelancers. The survey will also ask for examples of good practice by employers, by extending basic rights to staff in non-standard employment relationships.