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Legal Updates

Illegal inducements to union members

21 August 2014 #Employment

There are some relatively unknown and underused legal provisions which make it unlawful for employers to make any kind of offer directly to a unionised employee, for example a new bonus scheme, which could be construed as an attempt to induce the employee to give up collective bargaining rights. However, the fact that at least three cases were heard on this point last year could be an indication that more claims will follow. Employers who deal with unions therefore need to be aware of the provisions and know how to minimise risk in this regard.  Getting this wrong is a potentially expensive issue for businesses: breach of these provisions currently results in an award of £3,715 payable to the worker, hence when making offers outside of collective bargaining in relation to large numbers of staff, liability can quickly run into six figure sums

However, three cases are known to have been heard at Employment Tribunal level late last year and do give some guidance (albeit non-binding) on the matter.  The cases were: Wyer v Pembrokeshire County Council; Lowe & Malik v British Airways plc; and Whitaker v Buckinghamshire County Council.

Wyer involved an impasse in collective bargaining resulting in the employer agreeing new contract terms directly with employees, the tribunal found in favour of the employer.  Lowe & Malik involved the employer making changes to management and supervisory grades meaning that workers moved to a different collective agreement that provided for performance related pay instead of annual collectively bargained pay, again the tribunal found in favour of the employer.  Whitaker involved the employer offering a sum of money to employees to switch to performance related pay and to amend their pay review date, here the ET found in favour of the employee.

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