Will all really be fair in employment and law?

Martin Warren looks at the implications of the new "Fairness at Work' White Paper. Martin Warren is an employment partner at Eversheds.

Employment lawyers are having to come to terms with one of the most significant papers to emerge from the Labour government.

The "Fairness at Work" White Paper has taken 12 months to propose the implementation of a 22-word sentence contained in Labour's election manifesto: "Where a majority of the relevant workforce vote in a ballot for the union to represent them, the union should be recognised."

It is not since the 1970s that there has been a statutory system of trade union recognition in the UK. Last time it ended in the Grunwick dispute, which arose out of a refusal by the employer to recognise the Association of Professional Executive Clerical and Computer Staff (APEX).

Ultimately the employer succeeded in the courts in having the recommendation to recognise APEX removed, but not before weeks of ugly confrontation on the picket line. It is hoped this time around that the new provision will be sufficiently workable, so that they will deliver clear results either granting or refusing recognition on a site by site basis.

Employment law is a partisan discipline with most major practices either being known as employer firms or employee/trade union firms. But employment lawyers on both sides of the divide must understand the White Paper, because its provisions are expected to form the basis of a new Employment Bill.

Those advising employers should examine the provisions closely, as it is suggested there should be a three-year period between workplace ballots. It will be important to ensure that the trade union has the necessary level of support to be able to call for a ballot and that the workplace constituency is identified.

In the event of dispute, consideration should be given to referring the matter to the independent third party (the Central Arbitration Committee), proposed to hear such claims. From an employer's perspective, even if such an application is unsuccessful, valuable time may be gained in order to decrease the chance of a yes vote.

Where an employer accepts the vote is going to go in favour of recognition, consideration should be given to entering into a voluntary recognition agreement with a trade union. Such an arrangement is likely to give scope for flexibility in the relationship later on.

Difficult considerations will arise from the trade union perspective in relation to the appropriate constituency, and a trade union will need to be clear as to its long-term objectives. For example, is the trade union seeking to represent an entire workforce or is it going to be content with recognition rights for a sub-group within it?

Timing will also be important for the union. It cannot afford to trigger a ballot before it is confident of the result and may wish to speed up or slow down the debate as to the appropriate constituency, depending upon its preferred timescale.

Ensuring a high turnout is also in the interests of the union, which will need to ensure that it encourages as many of the constituency as possible to participate in the ballot. The target is to win a majority in a ballot where at least 40 per cent of the constituency casts a vote.

The White Paper also contains other significant proposed changes. Qualifying periods for unfair dismissal falls to 12 months service (it is currently two years), and the current limit on tribunal awards (£12,000) is removed. Compensation for unfair dismissal will therefore be unlimited, as is currently the case with sex and race claims.

Employers should anticipate this change by reviewing their disciplinary practices and procedures to ensure compliance with best practice.

The proposed changes to strikers' rights will change the tactics for both sides in an industrial dispute, as the employer has lost the ultimate weapon – mass dismissal without compensation – but the trade union knows that it now has a greater incentive to ensure that pre-industrial action ballots are undertaken so as to gain this protection for its members.

Whatever the long-term effect of these changes, employment lawyers will continue to play an important role in advising employers, employees and trade unions in industrial relations.