Of all the crimes against humanity that one can imagine, it may seem hard (or perhaps all to easy) for the visitors to this parish to imagine that, if you are an employer, offering your employees a pay rise can be regarded as legally actionable under principles of Human Rights law, and give rise to a claim for compensation. But such is the law in the United Kingdom, in defined circumstances. Those circumstances being where an employer’s principal or only motive for making an offer (regardless of it being accepted) is to get 2 or more employees to forego their rights to collective bargaining.
The situation was recently highlighted in a case involving a UK branch of a German engineering company, Kostal UK Ltd.
The employer had a ‘recognition agreement’ for a group of its workers with Unite (the UK’s largest Trade Union). This agreement is described as ‘binding in honour only’, and under it, the employer agreed to negotiate terms of employment for those covered by the agreement with the Union, rather than with the employees directly. it was not, by itself, legally enforceable. However, despite this ‘agreement’ being unenforceable as such, the Union’s ‘right’ to negotiate on behalf of its members is protected by a specific piece of legislation which prevents employers from making offers of different (including better) terms to two or more of its employees if they are (or are proposing to be) covered by a (non-binding) collective agreement between the employer and a Trade Union, if the employer’s motive is to go over the heads of the Union to reach an agreement with the employees represented by the Union.
Under this law, it is, of course, for the employer to prove what its motive was for making any offers to its employees in these circumstances, and if the motive (or main motive) is benign, there is no liability. And the risk? An award of £3,907 per employee for every offer that is made. In the Kostal case, it came out at around £422,000 per some reports, as the employer made two offers to around 57 employees. For some bizarre reason, apparently to do with its German parent company, its first offer, made in December, included a Christmas bonus, but its second offer, made in January did not, so two offers were made and two lots of compensation (at the time £3,800 per offer) was due, twice penalising what was essentially a single course of conduct.
Why is this ‘law’ in force, you may ask. The answer is that it is to protect the Human Rights of the workers, as, if an employer gets fed up dealing with a Union on pay negotiations, and tries to bypass it, so that the terms of employment of two or more employees covered by a collective agreement are no longer decided in line with that agreement, this is, according to the European Court of Human Rights, a violation of the right of freedom of association.
As the judgment in this case puts it:
…under Article 11 of the Convention, which provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary to a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others…”
The judgment goes on to explain the ‘reasoning’ of the European Court of Human Rights (the Strasbourg Court):
“In other words, the Strasbourg Court held that states have positive obligations to secure effective enjoyment of Article 11 rights; and if direct offers outside the collective bargaining process can be made and would lead to less favourable treatment of workers who do not accept, that acts as a disincentive to the exercise of Article 11 rights and allows employers to undermine or frustrate a trade union’s ability to strive for protection of its members.
So, lest an employer find a Union is asking for Mars and it can only offer the Moon, and it offers the Moon to Alphie and Bill, Charlie’s right to claim Mars is protected by making the employer pay compensation to Alphie and Bill for having the temerity of trying to cut them a deal, or even if the deal for Alphie and Bill is Venus plus Mars. And, lest you ask, if Alphie and Bill accept the offer, it is still enforceable against the employer.
Having met someone who went through the gates of Belsen at its liberation, it is hard not to think that Human Rights law is a sick mockery of the dead.
I am not saying that this judgment is outwith legal principles, it is starkly in keeping with them as they stand. With this as ‘law’, the UK has a long journey back to a Common Law that can be deduced from reason.
Well, I am.
Specifically, if the section of the judgement you quote is accurately the basis of the judgement, and if that basis is derived from Article 11, then the Court has lost all reasonably foreseeable connection with the Convention.
Mr. Ed, count your blessings being where you are. My scant knowledge of USA labor law reminds me that we’re worse off than even you.
In US labor law, this is all highly choreographed and regulated. (I have no idea what your law specifically says about all of this – just extrapolating from your OP.)
Here, there are certain called-out stages in a situation such as you’ve described. Once a union or a body of employees makes the official notification to the employer that talks are occurring between workers and possible union, you enter into this weird interregnum stage where the employer cannot do all sorts of things that might be viewed as making an argument to the employees that a union might not be good.
Altering pay offers is one of those things that cannot be done during this period. You also can’t give non-normal rewards or bonuses, etc. All of those things unfairly (yeah, I know, I’m just repeating) place the union at a disadvantage at this preliminary possible-representation stage.
If you have the same laws that we do, well, the employer couldn’t not have known that this was a mistake. If you don’t have the same laws, I suspect you will, soon.
Truly the law is an ass.
Yet apparently it’s Brexit that will make us uncompetitive vis-a-vis the Germans. 🙄
There is no substitute for proper understanding of basic PRINCIPLES.
The whole “law evolves” or “this is the way we do things in this society” LEADS TO THIS MESS.
It does not matter if it is statutes or legal judgements by judges – if there is no understanding of basic PRINCIPLES of reason, then there will be a mess.
It is like trying to deal with bureaucrats – lost in their forms (their “applications” and so on). They have the capacity to reason like human beings – they really do, but it has been twisted out of them, as it has been with these judges.
Get the PRINCIPLES (the principles of right reason) right and everything else will fall into place – get the principles wrong, and everything will fall into madness.
Paul Marks, does this mean you disagree with the principle of the Common Law, as it is called? Should Judges ignore precedent?
Nicholas, I would hazard a guess that Paul would say that the Common Law is only ‘safe’ when judges are not infected with collectivist ideology, as instead of apply the principles of ‘justice’, they will apply social justice to the law, with disastrous consequences. Since at least the mid-19th Century the Common Law of Coke et. al. has been under attack. Certainly in the UK, the Supreme Court is now a political court with politicised judgments to be made by not always apolitical judges.
Nicholas.
Which precedents?
It is has long been a (FALSE) attack on Chief Justice Sir Edward Coke that he ignored some precedents and followed others – but that is a false attack as a judge can do nothing else (as precedents can be found of ever disputeis).
So how does now know which precedents to follow and which to reject? By the use of right reason – as, for example, Richard Hooker (the leading Anglican theologian of the time of Coke – but a lot more than a theologian, would have pointed out).
The nation is like a three legged stool (as is the Church) – one has written texts, and one has tradition, and one has right reason as the third leg of the stool, holding everything together.
Of course, as Mr Ed points out, when judges and officials (such as some at Companies House that I have had the misfortune to come upon recently) REJECT right reason (who do not understand simple principles – such as that some other person or organisation, who does not live at your address, can not rightly use your address without your consent) there is nothing to be done.
For one is not dealing with human beings – one is dealing with Legal Positivists who believe that one must make an “application” to do what should be done anyway, and then ignore the “application” made. Or one is dealing with “Social Justice” followers – who are no better than rabid dogs.