The Employment Act 1990: Still Fighting The Industrial Cold War HAZEL CARTY* Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 1. BACKGROUND Ihis is the fifth major Act on Industrial Relations since 1979.* The theme throughout the period of the present Conservative administration has been the need to curb the power of the trade unions both externally—tightening the laws on industrial action2—and internally—by restricting the effective- ness of the closed shop and enhancing the rights of members. The Employment Act 1990 continues this theme, following on from the Employment Acts 1980, 1982 and 1988 and the Trade Union Act 1984. The justification for the 1990 Act was the removal of unnecessary barriers to jobs. Thus, starting with the Employment Act 1980, there has been a staged attack on the main legal significance of the closed shop, i.e. in the area of unfair dismissal.3 The original position had been that where a closed shop, or 'union membership agreement' was in force a dismissal for the reason of non- membership was automatically fair,4 the only proviso being for non- membership on religious grounds. Both the 1980 and 1982 Employment Acts added provisos to include genuine conscientious objection; those already employed at the time the union membership agreement came into force; and those who had been unreasonably expelled or excluded from the union. The 1982 Act also made it more difficult for a union membership agreement to be * Lecturer in Law, University of Manchester. 1 For comments on the earlier Acts see: (1980) 9 ILJ 201 (Employment Act 1980); (1982) 11 ILJ 209 (Employment Act 1982); (1984) 13 ILJ 193 (Trade Union Act 1984); Wedderburn 'Freedom of Association and Philosophies of Labour Law' (1989) 18 ILJ 1 (Employment Act 1988). All the provisions of the Employment Act 1990 were in force by February 1, 1991: SI 1990 No 2378. 2 Note also the repeal by the Employment Act 1980 of the EPA 1975 provisions relating to the statutory recognition procedure and the Schedule 11 claim to an extension of employment terms. 3 Of course, the Government were given support for this attack by the ECHR decision in Young James and Webster v UK [1981] IRLR 408, where it was held that the dismissal of three railway workers because of a closed shop was contrary to Article 11 of the ECHR (the right to free association and to join a trade union). Although capable of a narrow interpretation, and not a decision that castigated the closed shop as such, it was added ammunition for the Government. The decision was noted by Michael Howard, during the Parliamentary debate on the 1990 Act, Hansard 29 January 1990, col 41. 4 Section 58(3) of the EPCA 1978, prior to amendments. 1 Hazel Carty 'legitimate', as stringent balloting provisions were applied to the establish- ment of a closed shop or its continuance.5 The Employment Act 1988 then cut through this increasingly complex law on unfair dismissals and the closed shop by rendering all dismissals for non-membership automatically unfair:6 in effect the original position was overturned after a gradual chipping away at Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 the edifice.7 The 1988 Act also removed statutory immunity from tort liability for industrial action intended to establish or maintain any closed shop practice, building again on earlier provisions in the 1982 Act.8 More generally, industrial action law was radically changed in favour of employers and those affected commercially during a dispute. The aim was to reduce the effectiveness of sympathy action and picketing, while demanding secret ballots prior to official action. Sympathy action was the first target of the 1980 Act. A new concept 'secondary action' was defined by the notoriously tortuous and judicially criticized section 17 of the Employment Act 1980. Such action was denied protection from the civil law, though there were three possible 'gateways to legality', the most important of which being the so-called 'first customer/first supplier' gateway. This permitted secondary action to be organized if it involved employees of customers or suppliers of the trade dispute employer. Freedom to picket was restricted to those at their own place of work (with the Government's Code of Practice supplementing a recommended maximum number of 6).9 The 1982 Act then restricted the definition of 'trade dispute', thereby further reducing the scope of statutory immunity from tort liability during industrial action, and went on to compound the injury by abolishing the trade unions' immunity from suit, an immunity that originated in the Trade Disputes Act 1906. The threat of 5 Note also the enhanced compensation available under the Employment Act 1982 when an employee is dismissed for non-membership/membership of a union (and the potential for joining the union to the action). 6 In the interests of apparent 'neutrality', dismissal or discrimination on the grounds of union membership is also unfair. 7 For the law on the post entry closed shop see sections 58 and 59 of the EPCA 1978, as amended. Dismissal or selection for redundancy on the grounds of non-membership of a trade union is automatically unfair. Section 23 renders discriminatory action, short of dismissal, to compel membership or force alternative payments unlawful. Section 12 of the EA 1982 rendered 'union labour only' terms in commercial contracts void; union action to suport such a term lacks immunity, see section 14 of the EA 1982. 8 See section 10 of the EA 1988. 'The Act deprives union and employer alike of all lawful industrial pressures to enforce a union membership agreement' Wedderburn (1989) 18 ILJ 1 at 23. 9 See also Public Order Act 1986, especially section 14; see Carty: 'The Public Order Act 1986: Police Powers and the Picket line' (1987) 16 ILJ 146. To be within the relevant gateway to legality—section 17(5)—those picketing had also to be employed by the trade dispute employer. The Employment Act 1930 dismissal for taking part in industrial action was heightened by the same Act: henceforth employers could selectively re-employ those dismissed for taking part in such action, by waiting three months from the original dismissals. The Trade Union Act 1984 continued the process of limiting the lawfulness of industrial action by demanding secret ballots to be held before official Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 industrial action. The complex rules for holding such ballots were rendered even more detailed by the Employment Act 1988. However, the Trade Union Act 1984 was also important for its introduction of a new theme into the industrial relations legislation, that of 'trade union democracy'. New duties to conduct regular ballots on political activities and to elect by secret ballot all voting members of the union executive were introduced.10 This 'democratisation' of the trade unions was carried further by the Employment Act 1988. Members were given rights to restrain their union from calling industrial action without a secret ballot; to inspect the accounts; to object to 'unjustifiable' disciplining;11 to elect all principal union leaders by secret ballot; and to take action against trustees if they permitted funds to be used unlawfully. A new creature was created by the 1988 Act: the Commissioner for the Rights of Trade Union Members (CROTUM), to assist in the enforcement of these statutory rights against the union. It is against this background that the 1990 Act must be assessed. The Act reflects the proposals contained in twa Green Papers, 'Removing Barriers to Employment'12 and 'Unofficial Action and the Law'.13 It was presented by Michael Howard, the Secretary of State for Employment, as the culmination of the process of 10 years of reform. Thus the principle underlying the Act was declared to be: 'to limit the abuses of industrial power and to guarantee the democratic rights of trade union members'.14 10 The 1990 Act requires that for union elections and political fund ballots the name of the appointed scrutineer must be on the voting paper, and as far as is practicable, each member must be informed of the name of the scrutineer: sections 5(4) and (5). 11 Section 3 lays down a series of grounds on which a member may not be disciplined by the union and sections 4 and 5 lay down procedures for claims to an industrial tribunal for breach. A member may not be disciplined for failure to strike or engage in other industrial action or even for positively encouraging others not to participate. 12 Cm 655, 1989. 13 Cm 821, 1989. 14 2nd Reading, Hansard, 29 January 1990, col 41. Hazel Carty 1 PROVISIONS A. Refusal of Employment on Union Membership Grounds: sections 1-3 The Green Paper 'Removing Barriers to Employment' cited one of the aims Downloaded from https://academic.oup.com/ilj/article/20/1/1/751509 by guest on 30 September 2021 of the Government as stripping the closed shop of its last vestiges of legal protection, by closing the remaining 'loophole'. That loophole referred to the lack of control over the pre-entry closed shop, castigated as an inefficient and restrictive practice. Of the 2.6 million closed shop members in 1989, the Green Paper maintained that 1.3 million were covered by pre-entry closed shop agreements, with concentrations in shipping, printing, manufacturing, the theatre and the London wholesale markets.15 However Lord Macarthy questioned this figure, asserting that it was doubtful that more than 150,000 workers were covered by such closed shops.16 This attack on the pre-entry closed shop provided the impetus for the provisions in the Act concerning trade union membership.