| HR & EMPLOYMENT LAW
Jackie Le Poidevin, Editor-in-Chief, HR Adviser |
Direct Pay Offers to Union Members: What’s Lawful Following the Supreme Court’s Ruling?
If you recognise a trade union, it’s important to get to grips with the Supreme Court’s landmark decision in the long-running case of Kostal UK v Dunkley [2021] UKSC 47. Kostal, a car parts manufacturer, now faces having to pay compensation totalling about £420,000 after the court held that it unlawfully attempted to bypass the union during pay negotiations.
What Happened?
This dispute began in November 2015 when the Unite union rejected a pay offer made by Kostal. Kostal then wrote directly to employees saying that unless they accepted the offer by 18 December, they would lose a Christmas bonus which was part of the deal. It later sent a second letter warning anyone who hadn’t yet accepted the offer that it might dismiss them.
Unite claimed these offers breached the law on ‘unlawful inducements’. This bars employers from making an offer to a union member if the purpose is to avoid having to decide terms of employment by collective agreement. Kostal said it made the offer as a one off because negotiations were deadlocked. This was lawful, it argued, because it did not wish to break away from collective bargaining altogether.
The Court of Appeal accepted that Kostal was not inducing Unite members to give up their right to union representation. However, the Supreme Court has now held that the direct pay offer was unlawful because Kostal had not yet exhausted the agreed collective bargaining procedure.
What are the Potential Penalties?
The 57 workers who brought the claim against Kostal are each in line for £7,600 compensation. At the time of the dispute, the statutory award for being subject to an unlawful inducement was £3,800 and Kostal made two unlawful offers to each employee. The statutory award has now gone up to £4,341 per offer, so if lots of union members bring a claim, you could face a very sizeable bill.
Your Key Points
These are some points arising from this decision:
- You can approach union members individually about changes to their terms and conditions but you must follow and ‘exhaust’ the collective bargaining process first. It will be important to engage in meaningful negotiations with the trade union and avoid, as the original employment tribunal said Kostal had done, dropping in and out of the agreed bargaining procedure.
- It’s likely to be difficult to judge when negotiations are truly ‘exhausted’. Take a look at your collective bargaining agreement – is there a clear series of steps, a defined timeframe and a point at which negotiations will be considered to be at an end? If there isn’t, you may wish to try and propose a set procedure to follow, although the union may not be very receptive to changing the agreement.
- ‘Fire and rehire’ tactics (threatening employees with dismissal if they don’t accept a change to their contracts) are already risky. There’s the possibility of unfair dismissal claims from individual employees or staff may go on strike, as Clarks and Weetabix workers are currently doing over this issue. The Kostal decision ups the stakes further – trying to force through changes to terms and conditions over the union’s head could result in costly unlawful inducements awards. Be prepared to go back to the negotiating table and make individual offers an option of last resort.
- If you do make offers to individual employees, you must be able to convince an employment tribunal that you genuinely believed you had reached a stalemate and further negotiations would be futile. In this case, your purpose in making the offers will not be to undermine bargaining, which was already over.
| HEALTH & SAFETY
Michael Ellerby, Editorial Board Member, Health & Safety Adviser and Risk Assessment & Compliance |
Take a Few Low-cost Steps to Keep Your Workers and Others Safe this Winter
Snow and ice increase the risk of injury from slips when entering and leaving work. Read on to discover the benefits of adequately preparing for winter, establishing gritting procedures, and providing the right materials and equipment to control these risks and keep people safe.
During winter, the number of accidents from slips outside the premises increase. The reasons are simple:
- There is less daylight (about half as much).
- Leaves fall onto paths and become wet and slippery.
- Cold weather leads to ice and snow, and the wind chill makes this worse.
Don’t be Taken in by Myths
In the press, you’ve probably heard scare stories that you shouldn’t clear your drive and pavement from snow and ice because if someone slips due to your efforts, then you become liable for the accident. In fact, there are no health and safety regulations that prevent people from clearing snow at their home, business, or neighbours’ homes. It’s more important that you take the time to make access to your workplace safe.
What You Can do to Keep Workers (and Others) Safe
- Develop a suitable, simple Cold Weather Policy for snow and ice for your business, so that you are always prepared to deal with adverse weather conditions. This will include points such as the circumstances when staff should not put themselves in danger and work from home instead, safe travel advice, details of any on-call arrangements, etc.
- Assess the snow and ice risks of your premises and take action (such as gritting).
- Use simple procedures (such as shovel-deployed grit) for small areas, and more detailed, robust procedures (such as specialist grit-spreading machinery) for larger sites.
- Clear snow and ice from steep slopes, steps, roads and pathways and apply grit to avoid refreezing.
- Consider contracting the gritting to a competent contractor (and monitor their performance).
- Keep the approaches to the premises (outside areas) clear, clean and well lit.
- Prioritise important and well-used routes over lesser-used routes.
- Ensure that adequate equipment (such as grit spreaders and/or shovels) and staff are available to clear snow and ice.
Gritting Tips
The most common method used to make roads and pathways safe is gritting. It is relatively cheap, quick to apply and easy to spread. Rock salt is the most commonly used ‘grit’. It is the substance used on public roads by the highways authority.
Without going into the science, salt can stop ice from forming and cause existing ice or snow to melt. It is most effective when ground down, but this will take longer to naturally grind down on pedestrian areas than on roads.
Keep the process simple:
- Clear a 1m wide access route on pathways.
- Apply grit or salt to keep roads and pathways from freezing.
- Make checks at appropriate intervals to ensure that roads and pathways remain clear where temperatures stay below freezing.
When to Grit
Keep an eye on the weather forecast. Gritting should be carried out when frost, ice or snow is forecast, or when walkways are likely to be damp or wet and the floor temperatures are freezing. The best times to grit are early in the evening before the frost settles and/or early in the morning before employees arrive. Salt doesn’t work instantly; it needs sufficient time to dissolve into the moisture on the floor.
If you grit when it is raining heavily, the salt will be washed away, causing a problem if the rain turns to snow. Compacted snow, which turns to ice, is difficult to treat effectively with grit. Be aware that ‘dawn frost’ can occur on dry surfaces when early morning dew forms and freezes on impact with the cold surface. It can be difficult to predict when or where this condition will occur. The cost of gritting is low compared to the cost of injury, so take the simple, positive actions mentioned above to keep your staff safe from slips on snow and ice in this winter.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
Get Ready for the National Minimum Wage Rates from April 2022
The Government have announced the National Living Wage (NLW) and the National Minimum Wage (NMW) rates that will apply from 1 April 2022. Employers must pay workers aged 23 and above at least the National Living Wage. Workers who have reached school leaving age but who are under the age of 23 must be paid at least the National Minimum Wage for their age. A separate minimum wage applies to apprentices under the age of 19, and to apprentices aged 19 and over who are in the first year of their apprenticeship.
From 1 April 2022, the NLW will increase to £9.50 an hour. The NMW for 21- and 22-year-olds will increase to £9.18 an hour, the NMW for 18–20-year-olds will increase to £6.83 per hour and the NMW for 16- and 17-year-olds will increase to £4.81 per hour, as does the apprentice rate.
The rates have been increased in line with recommendations made by the Low Pay Commission. However, the percentage increases are not even across the various categories. The apprentice rate has been increased by 11.9%, bringing the rate into line with that applying to workers aged 16 and 17.
The minimum rate that must be paid to 21- and 22-year-olds is increased by 9.8%, bringing it closer to the NLW, which is increased by 6.6%. The Government’s intention is for the NLW to reach two-thirds of median earnings by October 2024. They also intend to move 21- and 22-year-olds from the NMW to the NLW. The remit of the Low Pay Commission is to recommend as high a rate as possible for workers aged 21 and 22 without damaging their employment prospects.
The rates applying to 18–20-year-olds and 16- and 17-year-olds are both increased by 4.81%.
Where accommodation is provided, the minimum amount that must be paid to the worker can be reduced by the accommodation offset. This rises to £8.70 per day (£60.90 per week) from 1 April 2022.
The current rates and the rates applying from 1 April 2022 are set out in the table below.
| Rate | From 1 April 2022 | 1 April 2021 to 31 March 2022 |
| National Living Wage Aged 23 and over |
£9.50 per hour | £8.91 per hour |
| National Minimum Wage: | ||
| 21–22-year-old rate | £9.18 per hour | £8.36 per hour |
| 18–20-year-old rate | £6.83 per hour | £6.56 per hour |
| 16–17-year-old rate | £4.81 per hour | £4.62 per hour |
| Apprentice rate | £4.81 per hour | £4.30 per hour |
| Accommodation offset | £8.70 per day | £8.36 per day |
Who is Entitled to the Minimum Wage?
People who are classed as ‘workers’ must be paid at least the NLW or the NMW appropriate for their age. It is important to appreciate that a definition of worker is wider than that of an employee. Workers remain entitled to be paid at least the statutory minimum if they work part time or on a casual basis, or if they are provided by an agency. Workers who are paid for the number of items that they produce (piece work) are also entitled to the NLW or NMW, as appropriate. You must also pay at least the NLW or NMW to trainees and to workers who are on probation, disabled workers and foreign workers.