Provisions of the Trade Union Act 2016 to be implemented from 1 March 2017

Regulations have now been made confirming a 1 March commencement date for the majority of the provisions of the 2016 Trade Union Act .

Up to now, industrial action is lawful if a simple majority of those balloted vote in favour. The Act introduces a 50% turnout requirement. If those balloted perform one of the ‘specified’ important public services, at least 40% of those eligible to vote must vote for the industrial action. These services are education, fire, health, transport and border security.

The Act introduces a shorter mandate for strike action of 6 months (or 9 with the agreement of the employer); it also requires a clearer description of the nature of the dispute and the proposed industrial action on the ballot paper; the amount of notice that must be provided to the employer increases from 7 to 14 days. Trade unions will also have to comply with additional requirements when picketing, including appointing a picket supervisor.

So will these provisions hinder NUT members taking action in schools? This is unlikely, the Unions strategy on taking industrial action has always looked to ensure we have turnouts and support in excess of the minimum that is provided for in the Act. The shortening of the mandate for action to 6 months may simply see action escalated and intensified at an earlier stage than it may have otherwise done so. The additional requirements on picketing will be of little concern and for those most part are consistent with the way we already organise picket lines. In any event any breach of the requirements is actionable only ‘in tort‘. In other words a civil claim brought in the Courts for damages, this would be a particularly difficult claim for a school to pursue.

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NUT & ATL Members to Vote on Amalgamation

The NUT and ATL held special conferences on Saturday 5 November at which delegates welcomed the progress made in negotiations on the amalgamation of the two unions to form a new union. The conferences endorsed the rules of the new union, to be called the National Education Union. This decision will now be put to the members of both unions for approval in ballots to be held in the spring term.

In welcoming the decisions of the two conferences General Secretary, Kevin Courtney, said: “This is an historic day for teacher trade unionism. We have advocated professional unity for many years, and this is a big step towards realising our goal of a strong unified profession and a powerful union which would be a significant force for teachers, education and the trade union movement.”

professional-unity

Employment Tribunals to publish judgements online

Decisions from the Employment Tribunals in England, Wales and Scotland will be made available online from  Autumn 2016. Initially only new judgements will be made available  online – a decision about whether past judgements will be published is still to be made.

The move to publish such decisions online will increase  the publicity of such judgements – especially when combined with social media.

Until now decisions could only be ordered by mail for a fee (or obtained if you attended in person at offices in Bury St Edmunds or Glasgow).

Employment Tribunal judgements are not binding in law and therefore do not set a precedent for other courts. They can however be useful when considering the potential merits of future cases.

The ‘without prejudice’ principle

The words ‘without prejudice’ often appear in the heading of  correspondence when dealing with employers but it use is frequently abused.

‘Without prejudice’ is a common law principle which prevents statements, whether written or oral, which are made in a genuine attempt to settle an ‘existing dispute’, from being put before an employment tribunal or other court as evidence in legal proceedings between those parties about that dispute.

Its use is for the purpose of facilitating a settlement, for example as an alternative to disciplinary proceedings or dismissal. Without it employers might be reluctant or wary of making offers of settlement should it be used against them at a legal proceedings. Both parties (or their representatives) can use ‘without prejudice’ in seeking to reach a settlement.

The ‘protection’ against later disclosure in legal proceedings only applies where the words ‘without prejudice’ appear in the correspondence and the correspondence refers to an attempt to settle an ‘existing dispute’ (its use in any other context is just verbiage). Its also useful to note that that the ‘protection’ of ‘without prejudice’ is also lost where where some ‘unambiguous impropriety’ occurs (e.g. a party acts unlawfully or wholly unreasonably e.g. fraud, deception, unlawful discrimination, use of threats or intimidation).

It should also be noted that the simple fact of making an offer with a view to settling an existing dispute does not of itself amount to ‘unambiguous impropriety’ because one party would have preferred the other to take a different approach to trying to resolve their dispute.

The notion of ‘existing dispute’  is difficult to define and determining exactly what constitutes an ‘existing dispute’ for the purposes of the ‘without prejudice’ principle can be problematic. For example, the fact that the employee has raised a grievance will not necessarily constitute an ‘existing dispute’. Generally speaking for there to be an ‘existing dispute’ one of the parties has brought, or might reasonably have contemplated bringing, legal proceedings against the other party at the time that the settlement offer and discussions took place.

Does Gross Misconduct Mean Dismissal?

It is often assumed, especially by employers that a finding of gross misconduct automatically means dismissal and moreover that such a dismissal would be fair.

A consultant working for the NHS in a hospital had been treating private patients while on sick leave. A disciplinary hearing found this to fraud and she was dismissed for gross misconduct. The Employment Tribunal (ET) dismissed her claim that the dismissal was unfair. 

On appeal in Brito-Babapulle v Ealing Hospital NHS Trust [2013] UKEAT the Employment Appeal Tribunal (EAT) found that the ET was entitled to find  that it was reasonable for the employer to reach a decision of guilty of gross misconduct. However it made a mistake in assuming that this inevitably meant that the dismissal was fair and within the ‘reasonable band’ of responses an employer could make in the circumstances. 

The EAT found that the ET should have considered whether dismissal is a reasonable sanction having regard to the mitigating circumstances of the case. The case was send back to the ET to consider whether it was reasonable in all the circumstances to dismiss  for gross misconduct.

The above illustrates a common mistake of Headteachers and Governors, who believe a finding of gross misconduct must be followed by dismissal. It is best explained by thinking of the decision as a two-part decision. First does the conduct constitute gross misconduct and secondly if it does would dismissal be reasonable taking into account all the circumstances including any mitigation.

How to Lobby Your MP

You can find your MP and send them an email at www.writetothem.com or to send them a letter or arrange to meet them you can get contact information including details of their Constituency Office from www.parliament.co.uk For more help read on below. 

You may in a sense have two MPs, one for your home address and another the other for the address of your workplace. If it’s an education issue, you can try to lobby both, although the MP for your workplace may direct you to the MP for where you live.

Personal correspondence  is more effective than a pro forma one, because it indicates that you care about the issue. But don’t delay,  a pro forma email or letter is better than not writing at all.

When writing to your MP you should;

  •  Keep it brief and focused on the key issues – if they want more information, they’ll ask you for it.
  •  Ask questions and request a response, because as well as letting them know your view you want to know their view too
  • Its preferable to write to the MP at their Constituency Office address because it will receive attention faster than if sent to the House of Commons
  • If you don’t receive a response within 10 days send a polite reminder, attaching a copy of your original.

 When meeting with your MP you should;

  • Contact the MP’s office (see above) to find out the dates/times/locations of their  ‘surgeries’. Some MPs hold surgeries by appointment, others drop-ins and some MPs offer appointments separate from their ‘surgeries’.
  • Aim to take no more than 15 minutes (but you may not get that long)
  • Avoid appearing to go ‘mob-handed’, its better to book multiple appointments.  If it is however an ‘organised lobby’ involving a group  then decide who will speak for the group.  This is so you can ensure your MP responds rather than say their isnt enough time.
  • If you are there in a representative capacity, say so at the beginning. For example, “I am the NUT Rep and 23 teachers in my school are concerned about this.”
  • If the MP has a different point of view from you on the issue, don’t expect them to change their mind in front of you.
  • If its appropriate put up on Facebook, Twitter or other social media the questions you asked your MP and their response. Don’t however misquote or misrepresent what they have said.
  • Finally dont forget to thank the MP and then ask them for a photo of them with you or the group (see above regarding use of social media). If you are over the age of 40 this seems a little strange. But its become generally acceptable and people appear to respond to requests for  ‘selfies’ the world over (cf Obama at Madela’s funeral – a photo with your MP seem quite normal in comparison)

With thanks to Rob Marris for his assistance in preparing this briefing. Rob is a former solicitor and was the MP for Wolverhampton South West from 2001 to 2010. He was an NUT Regional Officer in the Midlands Region from 2011 to 2013. He is the Labour Prospective Parliamentary Candidate for Wolverhampton South West.