Nic Hart – UK Employment Law Update

May 9, 2025May 9, 2025 by Nic Hart

Direct Offers and Dangerous Waters: What Employers Need to Know About Section 145B TULRCA

The hidden danger in skipping union negotiations? £4.8 million in damages.

Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) is more than just legal fine print – it’s a serious compliance issue with major financial consequences.

This provision protects collective bargaining by prohibiting employers from making direct offers to union members if the main purpose is to bypass agreed negotiation processes (known as the “prohibited result”).

Here’s how expensive it can get:

*Kostal UK Ltd v Dunkley & Others*	*Ineos Infrastructure Grangemouth v Jones & Others*	*Jiwanji & Others v East Coast Main Line Co Ltd*
Kostal made direct pay offers during union negotiations with Unite.	Ineos implemented a pay award directly after rejecting union proposals. Result: Breach confirmed.	Employer made offers to staff before concluding negotiations with RMT.
Damages: £3,800 per offer, per employee. Total awarded: £425,000+	Damages: Not disclosed, but case reaffirms employer risk when bypassing talks.	Damages: £3,840 per employee. Total awarded: ~£4.8 million

Key Takeaways for Employers:

Exhaust all collective bargaining steps;
Document negotiations and motives carefully;
Don’t treat Section 145B lightly; and
Seek legal advice before going direct.

Section 145B isn’t an obscure footnote – it’s a sharp legal boundary. Crossing it, even with good intentions, can cost employers dearly.

April 29, 2025April 29, 2025 by Nic Hart

A Revolution in Trade Union Rights

The UK Labour government’s proposed trade union legislation, encapsulated within the Employment Rights Bill and the broader “New Deal for Working People,” represents a significant overhaul of employment law, aiming to enhance workers’ rights and, particularly, to strengthen trade unions.

These reforms represent a decisive shift towards collective labour rights after several decades of liberalised employment regulation.

While the Government says its intention is to create a more secure, equitable workplaces, there is a legitimate debate about whether such a dramatic intervention could unintentionally constrain business agility and growth at a sensitive economic moment.

The success — or failure — of Labour’s employment reforms will depend largely on how carefully they are implemented and how well businesses prepare for this new regulatory environment.

In my view, forward-looking employers should already be assessing:

Their internal policies on union engagement;
Workforce contractual arrangements;
Risk areas around day-one dismissal protections; and
Strategies for compliance under a strengthened enforcement regime.

The question is not whether the labour market will change — it is how quickly businesses can adapt to the change.

What is proposed?

Trade Union Recognition

Under current UK law, a trade union can apply for statutory recognition to bargain on behalf of a group of workers (the “Bargaining Unit“) if it meets specific criteria:

Minimum Membership: The union must have at least 10% membership within the proposed Bargaining Unit; and
Evidence of Majority Support: The union must demonstrate that a majority of employees are in favour of recognition, which can be shown through methods like petitions or ballots.

If these conditions are met, the Central Arbitration Committee (CAC) may grant recognition or decide to hold a ballot. In such a ballot, recognition is granted if:

Majority Vote: A majority of employees voting support recognition; and
Minimum Turnout: At least 40% of the employees in the Bargaining Unit vote in favour.

However, the Labour government’s proposed reforms aim to lower these thresholds:

Reduced Membership Requirement: Unions could seek recognition with as little as 2% membership in the Bargaining Unit, down from the current 10%; and
Elimination of Turnout Threshold: The 40% turnout requirement for recognition ballots would be removed, making it easier for unions to gain recognition even in workplaces with low participation.

These changes are designed to simplify the recognition process, particularly in sectors where union presence is minimal. However, they have raised concerns among employers about the potential for increased union influence and the implications for business operations.

Reforms to the Trade Union Act 2016

Thresholds for Industrial Action: The bill proposes repealing the 40% support threshold and the 50% turnout requirement for industrial action ballots, facilitating easier initiation of strikes.
Electronic Balloting: Introduction of secure electronic and workplace ballots to modernize voting processes.
Notice Periods: Reduction of the industrial action notice period from 14 to 10 days, and extension of strike mandates from six months to one year.

Enhanced Union Access and Rights

Workplace Access: Unions will gain regulated rights to access workplaces, including digital access for remote workers, to organize and represent members.
Employer Obligations: Employers will be required to inform employees of their rights to join a union.

Enforcement and Oversight

Fair Work Agency: Establishment of a new executive agency to enforce labour market rules and support collective bargaining, particularly in sectors like education and social care.

Economic Implications and Business Response

Cost Estimates: Government assessments estimate the reforms could cost employers up to £5 billion annually.
Business Concerns: Business leaders express concerns over potential negative impacts on job creation and economic growth, citing increased regulatory burdens.

Summary & Commentary

Labour’s proposed trade union legislation marks a transformative shift in the UK’s employment landscape, aiming to rebalance power between employers and employees. By simplifying strike procedures, enhancing union access, and strengthening worker protections, the government seeks to foster a more equitable labour market.

However, the reforms have sparked debate. Proponents argue they are necessary to address long-standing issues of job insecurity and to modernize labour relations. Critics, particularly from the business community, warn of increased costs and potential hindrances to economic growth.

The success of these reforms will depend on their implementation and the government’s ability to balance the interests of workers and employers. As the legislation progresses, the impact on the UK’s economic and social fabric will become clearer.

Contact me at any time for an informal discussion around your concerns on this subject or indeed any employment law question on which you would like a fresh view.

Nic Hart

April 16, 2025April 16, 2025 by Ryan Mullen

The Biology Supreme Court: For Women Scotland Ltd v The Scottish Ministers

In For Women Scotland Ltd v The Scottish Ministers, the UK Supreme Court addressed a legal dispute about the definition of ‘woman’ under the Equality Act 2010 (EqA 2010) and the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018). The case concerned whether the Scottish Government’s statutory guidance including trans woman with Gender Recognition Certificates (GRCs) under the term ‘woman’ was lawful. The feminist organisation For Women Scotland (FWS) argued that the EqA 2010 defines ‘woman’ strictly by biological sex, excluding trans women with GRCs from the category.

The Court unanimously upheld FWS’s appeal, ruling that ‘man’, ‘woman’, and ‘sex’ in the EqA 2010 refers to biological sex. It found that the Act’s provisions, especially those related to pregnancy, maternity, and single-sex services, only function coherently when interpreted biologically. The Court emphasised that a certificated sex approach would create impracticalities and legal inconsistencies across the Act, such as in the enforcement of single-sex spaces and protections for sexual orientation.

Furthermore, the judgment clarified that, while trans people are protected under the characteristic of gender reassignment in the EqA 2010, this does not mean that they are covered under the sex-based provisions unless those protections explicitly apply. The Court rejected the idea that the EqA 2010 allows for dual meanings of sex in different contexts, confirming that a consistent, biological interpretation is necessary for clarity and legal coherence.

However, it is important to echo Lord Hodge’s statement in his summary:

‘But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.’

While trans people may not fall under the definition of a ‘man’ or a ‘woman’ in the EqA 2010, gender reassignment remains a protected characteristic in its own right and thus are protected from discrimination on those grounds. Further, they continue to receive protection against direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired gender. As highlighted in the judgment, if a trans woman applies for a job and, despite performing best in the interviews, a biological man is given the role, she would still have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. ‘The fact that she is not a biological woman should make no difference to her claim.’

The Supreme Court’s decision has significant implications for gender and equality law in the UK. By affirming that ‘sex’ in the EqA 2010 means biological sex, the ruling limits the scope of gender recognition to areas where legal rights are based on sex characteristics. However, it maintains the existing protections for trans individuals under gender reassignment provisions.

March 21, 2025March 27, 2025 by Nic Hart

When Beliefs Collide: Higgs v Farmor’s School

In a hotly anticipated decision, the Court of Appeal has handed down its decision in a case which looks at an employee manifesting their religious belief on social media. Higgs v Farmor’s School demonstrates that it can be difficult to rely on reputational risk alone when dismissing an employee for holding views that are seen as controversial.

Background

Mrs. Higgs, a Christian mother, who held roles as a pastoral administrator and work experience manager at Farmor’s School, voiced her views on her personal Facebook page. Her posts — criticizing the Government’s sex education policies, particularly on issues of gender fluidity and same-sex marriage —sparked a parental complaint that the language was “homophobic and prejudiced.” This complaint set off a chain of events leading to an internal investigation, disciplinary charges, and ultimately, her dismissal for alleged gross misconduct.

Mrs. Higgs challenged her dismissal on the grounds of direct discrimination and harassment under the Equality Act 2010 on the basis of her religious belief that gender is binary and that same-sex marriages are not akin to straight marriages. After bouncing between tribunals, having the claim initially dismissed by the ET then partially allowed on appeal by the EAT, the Court of Appeal eventually ruled that her dismissal was unlawful direct discrimination.

Key Legal Takeaways

Protection of Personal Beliefs

The judgment makes it clear: holding a personal belief—even one that runs counter to mainstream views — cannot serve as a standalone justification for dismissal. The Court underscored that Mrs. Higgs’s belief in a binary conception of gender and her stance on same-sex marriage are protected under the Equality Act 2010. This ruling affirms that personal beliefs, regardless of their popularity, deserve protection.

Expression vs. Belief: The Critical Distinction

A pivotal point in the decision was the distinction between the belief itself and the manner in which it is expressed. While the ET described Mrs. Higgs’s language as “florid and provocative,” the Court emphasised that an employee’s personal belief is not inherently problematic. The focus must instead be on whether the expression of that belief crosses the line into conduct that causes harm. Employers must therefore be cautious not to conflate disagreeable opinions with actionable misconduct.

The Imperative of Proportionality

Employers are required to demonstrate that any disciplinary measures are proportionate to the issue at hand. In this case, the perceived reputational risk — stemming from a solitary complaint — was deemed too speculative to justify such a drastic response. Further, Mrs. Higgs’ had provided no indication that she took this message into work, and no complaint had been made against her during the course of her employment. The ruling sends a robust message: disciplinary actions must be supported by clear evidence of harm and must align with a legitimate business aim.

Practical Implications for Employers

Separate Belief from Conduct: Employers should critically assess whether it is the underlying belief or the way it is expressed that is problematic. Criticism should target behaviour that directly undermines workplace values, not the belief itself.
Ensure Disciplinary Measures Are Justified: Any action taken against an employee for expressing a protected belief must be both necessary and proportionate. Employers need to gather objective evidence that demonstrates the actual harm caused – reputational risk alone may not be enough to justify dismissal.

March 7, 2025March 7, 2025 by Ryan Mullen

Employment Rights Bill: further Government amendments

The Government’s most recent round of proposed amendments to the Employment Rights Bill—detailed in the Amendment Paper published on 5 March 2025—brings a fresh wave of proposed reform. These changes challenge established norms and empower both workers and unions, while simultaneously tightening the screws on non-compliant employers.

Highlight: Agency Workers

The amendments introduce a new chapter into the Employment Rights Act 1996 that would clearly define “agency worker” for the purposes of guaranteed hours and shift rights. Agency workers – often caught in a grey area between traditional employment and temporary work – would enjoy defined rights regarding shift payments and guaranteed hours during a currently undefined reference period. A follow-up amendment would ensure that even those without a traditional worker’s contract aren’t left without recourse if wages are withheld. Finally, the amendments would allow for worker and agency worker collective agreements to expressly exclude and replace certain statutory duties or rights.

Highlight: Collective Redundancy Protected Period

The “protected period” for collective redundancy consultations would be extended from 90 to 180 days. This change would empower Tribunals with a longer window with which to impose a higher protective award for employees in cases of collective redundancy. However, as confirmed by the Government, no interim relief will be available for those bringing claims for protective awards and/or unfair dismissal claims in cases of ‘fire and rehire’.

Highlight: Other Amendments

The Amendment Paper makes a whole host of further amendments that, while perhaps not as important as the above, are still of note, including:

A legal obligation to keep detailed records demonstrating compliance with annual leave and other working time entitlements.
The definition of “employment business” under the Employment Agencies Act 1973 being expanded to cover modern arrangements, including umbrella companies.
Removal of the lower earnings limit for Statutory Sick Pay, to ensure that all employees are entitled to SSP (albeit for lower earners, at 80% of their average weekly earnings if lower than the current statutory rate).
Trade union recognition procedures to modernize collective bargaining and protect against ‘unfair practices’ intended to influence the outcome of a recognition application.
Trade unions would no longer have to renew their political resolutions every ten years to maintain their political funds.
The rules governing industrial action ballots being simplified – replacing numerical thresholds with majority voting and extending the ballot’s effective period to a fixed 12 months.
Trade union access agreements could include non-physical entry, such as, for example, digital right of access.
The Secretary of State may issue notices of underpayment when statutory pay is breached. A penalty framework would be introduced equal to 200% of the underpayment, capped at £20,000.00.
The Secretary of State being granted enhanced powers to enforce compliance through court orders and tribunal proceedings. Notably, if a worker is unlikely to bring a claim, the government could step in and initiate proceedings on their behalf.
The amendments would allow the Secretary of State to provide legal advice and representation in employment-related disputes. Importantly, there are now provisions for recovering the costs of such legal assistance from awarded costs and even for recouping enforcement expenses from non-compliant parties.