Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Lidl v GMB – what’s going on?

food-healthy-vegetables-potatoesLast weekend there were news articles about Lidl’s decision to appeal against the ruling that they should recognise GMB union at their Bridgend depot – but why?

The story is reported on the GMB website, which handily also includes Lidl’s statement on the issue.

A significant majority of staff at Lidl’s Bridgend depot indicated that they wanted to be represented by a trade union in negotiations with the company. Lidl’s response was to reject the request for recognition that came from GMB. This was referred to the Central Arbitration Committee, the body that decides the outcome in such situations, who ruled that the union should be recognised. Lidl’s response has been lukewarm, with reports suggesting they are now going to appeal to the Court of Appeal against the CAC decision.

Setting aside the specifics of Lidl and GMB, the question then arises – why are so many employers hostile to unions?

Workplaces that have a union present have significantly better H&S records than those that don’t, they can access all sorts of training for their staff (union reps and members can access training through their union or STUC and TUC education programmes, as well as wider education through UnionLearn projects, etc.) that they would otherwise have to pay for. Being a representative is also a great way for staff to be exposed to responsibility and authority that would never occur in their day job, so there’s a good chance to see what they can do.

Aside from that, it helps meet obligations under the Information & Consultation of Employees Regulations that may otherwise be both problematic and ineffective.

So, with so much to gain, what is it that makes employers so reluctant to engage with trade unions?

Interestingly, around 70% of FTSE 100 companies recognise unions, so it can’t be THAT damaging to the bottom line.

History is a big factor – many, many employers (and workers) still view the union movement as a behemoth from the 1970s. But unions have changed, forced to evolve and adapt initially by legal changes through the 80s and early 90s, latterly by a drive to become more effective at representing their members in the rapidly changing world of employment. Before the last government decided to raise the hurdles for workers to take legal industrial action, it had already become a rare event – 2015 was the second lowest annual total for working days lost through strike action since records began in 1891 (the lowest was 2005).

There are costs – rates of pay in unionised workplaces are higher, and ensuring your workforce is safe and healthy takes investment, but more competitive pay also means they are more likely to attract better candidates when they advertise jobs, and it’s a good thing that people go home after work as healthy as they were when they started, so there are swings to those roundabouts.

I have long been a believer that the objectives of any workforce largely align with those of their employer – success for the company is in everyone’s interests. Hence my work to help and encourage employers to find the most effective way to interact with their employees to improve the company for whom everyone is working. Given the insights they have into the various levels and structures of your business, staff represent a valuable resource from which to better inform your next big decision. That doesn’t change because the staff want to be represented by a union.

However many people you employ, if you’d like help in improving the way you interact with your staff, whether or not there are unions involved, please get in touch – it could be the start of a new future for your company.  If you’d like to know more about the services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

To Mediate or Not to Mediate, That is the Question…

DSCN0199Mediation has been around for a long time, and has been used very successfully in many, many situations.  Despite that, I have found many employers quite slow to adopt mediation as an approach, and often reluctant to put it in place early enough to prevent some situations becoming intractable. In some cases, it seems to be an option of last resort rather than a means to head problems off at the pass.

Part of this seems to come from a lack of understanding of what mediation is and does, part of it from seeing it as an additional expense.  In many cases, those that have tried have done so using internal mediators – while that may work in some situations, staff tend to perceive a mediator employed by their company as having a conflict of interests that means they can’t be impartial.  Whether or not that’s true is irrelevant, the perception is the key to the success of the process, so the results have perhaps not been what might have been hoped.  But the relative costs of employing an external mediator will often pale into insignificance compared to the lost productivity that comes from letting a situation persist or deteriorate.

Interestingly, ACAS research published in 2012 showed that mediation is significantly more successful in workplaces where the employer is genuinely committed to the process, less so where they are reluctant to use it – so the results are, to a large extent, self-fulfilling prophecies.  The paradox is that the statistics also show that mediation is second only to direct communication in successfully resolving issues between employees.

One conclusion from the ACAS research was that one poor result can colour an employer’s view of the value of mediation as a whole.  To a large extent, one of the benefits of mediation is that there is little to be lost in trying it, but please do so with a genuine commitment to find mutually acceptable solutions or it is less likely to succeed.

If you’d like to know more about the mediation and dispute resolution services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.

What Can Strathesk Resolutions Do For You?

Approaching Bass Rock from the south

Strathesk Resolutions specialises in helping businesses to identify, resolve and, ideally, avoid individual or collective problems with their staff through targeted analysis, mediation, training, coaching and mentoring.

We draw on years of experience working collaboratively and constructively to achieve the right outcome to complex industrial relations situations.  We deliver straightforward advice, training and solutions that encourage and develop relationships based on understanding, cooperation and trust.

Our open and honest approach ensures fairness to all sides whilst guaranteeing the needs of both the individual and the organisation are properly considered. Having worked with Trade Unions for years we understand the need for clear and concise communication, whilst influencing and negotiating in an expert manner.

You can expect us to thoroughly explore your problems, ensuring that we properly understand the problem before we start working towards a solution.  We will also keep an open line of communication to ensure that you are fully aware and involved in developing approaches.

Brexit in the workplace – what now?

The long and the short of it is that nothing will change immediately – the impact of European case law remains unchanged, albeit the vast, vast majority of case law originates through the UK’s Employment Tribunal system (primarily at EAT and Court of Appeal).

EU Directives on Employment Law are implemented through enactment into UK Legislation, usually by Regulation, less frequently by primary legislation. In this respect, many of the laws that have originated from the EU have become workplace norms (e.g. protection of fixed-term workers and part-time workers).

There is a risk that more recent and less accepted legislation may be under pressure to be repealed (e.g. Regulations on Agency Workers). There may also be changes over time in relation to the calculation of holiday pay and accrual of annual leave during sickness absence.

No doubt a surprise to many, there are various aspects of Employment Law where the UK provides greater than that stipulated by EU Regulations. This covers holiday rights, protection against discrimination, TUPE (which covers service provision transfer in the UK, unlike elsewhere in Europe), etc.

That said,  companies working throughout Europe and currently depending on UK laws to meet the requirements for a European Works Council may need to review their arrangements.

What about the rights of EU Nationals to work in the UK?  Well, it’s again difficult to say as yet, but special permissions may be needed to work here in future, perhaps with sponsorship, as is the case for non-EU nationals, but in the meantime, EU nationals working here are entitled to stay and continue working. The main protagonists on the Leave side made contradictory statements, so it is difficult to tell what may change, though Theresa May stated a desire to clarify this point quickly, while Nicola Sturgeon has moved to say their position is secure in Scotland.

But what will happen if there are non-UK nationals applying for jobs now? If they are employed, they may be forced to leave in a year or two’s time, but NOT employing them because of that would currently be illegal discrimination.

The UK currently already has a points based system for non-EU nationals which COULD be extended, at least for skilled workers, though Tier 3 (unskilled workers) would need to be reactivated. There hasn’t been a need for non-EU unskilled workers because that gap has been filled from within the EU, but that source is clearly likely to dry up as/when the UK withdraws from the Single Market.  If employers have a need for unskilled workers that they can’t meet from domestic recruitment, this needs to be flagged up with the Government.

Accredited Mediator

While my previous career involved mediating between various parties on a regular basis, I’d never had my skills in this respect properly reflected through accreditation, so I decided it was time to address that. Thanks to training provided by The Mediation Partnership, I am now accredited mediator.

The training was both interesting and challenging, featuring a number of role play scenarios that were outside of my previous experience and allowed a wide-ranging exploration of approaches and techniques to develop my skills.

The course is accredited by the Scottish Mediation Register.