Recognising and derecognising a trade union
Workers' rights in relation to trade union recognition or derecognition
Workers have certain rights relating to their involvement in recognition and derecognition procedures.
Protection from detrimental treatment and unfair dismissal
An employer must not subject a worker to a detriment on grounds related to the process of union recognition or derecognition, eg for taking part in a recognition ballot or for campaigning for recognition.
Detriment is broadly defined but essentially means that the worker should not suffer disadvantage on account of any act or omission by you. This could include:
- suspending the worker
- cutting their pay
- moving them to new duties
- failing to give them a pay rise
For a worker who isn't an employee, their dismissal may also count as a detriment. Only employees can claim unfair dismissal.
If any of the above occurs, a worker could bring a claim before an industrial tribunal. If the tribunal finds that you acted unlawfully, it may award compensation.
If an employee is dismissed or selected for redundancy on grounds relating to union recognition or derecognition, they may be able to make a claim for unfair dismissal to the tribunal.
Rights regarding inducements to disapply collective agreements
Many members of trade unions have their pay and other terms and conditions of employment set by a collective agreement negotiated by their union and their employer.
These members have rights to ensure that the employer does not interfere between the union member and their union in certain matters related to collective bargaining.
An employee or other worker who is a member of an independent trade union which is recognised by - or seeking recognition from - their employer for collective bargaining purposes has the right not to have certain offers made to them by their employer.
This is in circumstances where the employer's sole or main purpose is to achieve the result that, if the offer and like offers to other workers are accepted, all or any of those workers' terms and conditions will no longer be determined by a collective agreement negotiated by or on behalf of the trade union.
In addition, an employee has the right not to be dismissed, or selected for redundancy, by their employer on the grounds that they did not accept any such offer.
An employee or other worker has the right not to be subjected to a detriment for failing to accept any such offer.
Right of complaint to an industrial tribunal
Individuals who think that any of their rights as set out above have been infringed can complain to an industrial tribunal.
If an employee has been dismissed - including cases where they have been dismissed on grounds of redundancy - their complaint is one of unfair dismissal.
If an employee or other worker considers that they have been subjected to a detriment by their employer, their complaint is one of detriment.
If an employee or other worker considers that you have made an unlawful inducement as described above, their complaint is one of unlawful inducement.
There are certain limits on the compensatory awards for the claims in relation to dismissal, detriment and unlawful inducements. See a table of current tribunal and arbitration compensation limits.
Note that in cases where an employee or other worker makes a related complaint to the tribunal concerning detriment, and the tribunal upholds that complaint, the tribunal may award compensation for the detriment suffered.
In deciding the amount of such compensation, the tribunal will not take into account the fact that:
- a complainant contributed to their loss by accepting or not accepting an unlawful inducement
- the complainant has received or is entitled to an award on the grounds that an unlawful inducement has been made to them
Status of contractual changes resulting from unlawful inducements
If an unlawful inducement has been accepted by an employee or other worker, but any consequent agreement by them to vary their terms and conditions has not yet been effected, the agreement to vary the terms and conditions is not enforceable.
Also, in such circumstances, the employer cannot recover any cash paid or other benefits conferred on the employer or worker concerned.
However, in cases where the agreed variation in terms and conditions have been effected, those variations are enforceable.