Government’s review of the Employment Relations Act 1999 has far greater
implications for employers and unions than was initially thought
The Government has completed its review of the Employment Relations Act
The Act introduced fundamental new rights, such as compulsory union
recognition and the right to be accompanied in disciplinary and grievance
hearings. So what changes can we expect as a result of the review?
There is confusion over the part to be played by companions at disciplinary
and grievance hearings. Currently, the companion is allowed to address the
hearing and confer with the worker, but not to answer questions on behalf of
the worker. The Government proposes to clarify this, but in-tends to stick to
the principle that the companion should not have the right to act as a
The changes proposed to the compulsory recognition regime are largely
technical. Small businesses may be relieved the Government review will not
reduce the 21-worker qualifying threshold for recognition applications. The
Government has also decided against adding pensions now to the existing core
bargaining issues. However, they may be introduced in the future.
The new compulsory recognition rights have had a huge impact. The 52
compulsory awards made by the Central Arbitration Committee are just the tip of
the iceberg – more than 700 recognition agreements have been reached
voluntarily since the statutory procedure came in.
Yet many employers seem to have given little strategic thought to the
question of union recognition bids and steps they could take to ensure they get
the result they want. Forward planning is vital to establish structures that
support the bargaining unit (the voting constituency) which will most favour
Employers can also implement surveys to gather evidence to counter
suggestions from the union that there may be sufficient support for
Most importantly, perhaps, the company can promote a non-independent union.
Unions cannot seek compulsory recognition where there is already a ‘trade
union’ for the bargaining unit. The definition of ‘trade union’ includes many
Currently, only individual workers can apply to derecognise a
non-independent union, which clears the way for an independent union to seek
recognition. The review rejects the unions’ proposal that this should change so
that unions would be able to make such an application in their own right.
The review also considers the effect of the key decision of the European
Court of Human Rights (ECHR) in Wilson and Palmer.
Under current provisions, an employer can discriminate against union members
if the purpose is to change its relationship with its staff – to get
derecognition of a union or to restrict the coverage of a collective bargaining
agreement. After the ECHR decision, this is unlawful and is to be scrapped.
The unions interpreted the Wilson and Palmer decision as a basis for arguing
that employers could not introduce individual employment contracts for union
members. However, the Government will amend the law to state that offering
individual contracts to non-union members will not constitute unlawful union
discrimination against union members who are not offered one, as long as
relinquishing union representation is not a precondition of the individual
The unions will not be happy about that.
– Consultation on the review of the 1999 Act ends 22 May
– The review will clarify the role of companions in hearings
– No fundamental changes on recognition applications in sight
– The right to discriminate against union members will be
By Jill Kelly, Employment team associate, Clarks