Court of Appeal decides that employers must consult unions over changes to the working rights of employees undertaking police work17/08/17
In Vining and others v London Borough of Wandsworth, the Court of Appeal has ruled that, although two park police officers were unable to pursue their claims of unfair dismissal against their employer, their union, UNISON, was entitled to bring a claim against the Borough for its failure to consult with the union over the redundancy situation that led to their dismissal.
Mr Vining and Mr Francis were employed by the Borough as parks police officers. In order to carry out the role, they had been attested as constables and had the powers of a constable to enforce park by-laws, but did not have any of a constable’s wider powers.
Following a reorganisation of the parks police service, they were dismissed on grounds of redundancy. They brought claims against the Borough for unfair dismissal. In addition, UNISON, the recognised union as regards parks police employed by the Borough, brought proceedings seeking protective awards for the Borough’s failure to comply with the collective consultation requirements set out in section 188 Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
The Employment Appeal Tribunal (EAT) ruled that neither the two individuals nor UNISON could proceed with their claims, on the basis that the individuals were employed “in police service” as defined in the Employment Rights Act 1996 and were therefore excluded from the right to bring an unfair dismissal claim.
The two individuals and UNISON appealed to the Court of Appeal, arguing that the UK law was incompatible with the European Convention on Human Rights, in particular Article 8 (right to private and family life), Article 11 (freedom of association) and Article 14 (prohibition on discrimination).
Court of Appeal decision
The Court of Appeal held that UNISON was permitted to continue its claims against the Borough for protective awards. Article 11 of the ECHR protects the right to freedom of assembly, including the right to form a trade union. The Court held that the union’s right to be consulted over redundancies enshrined in TULRCA was one of the “essential elements” of Article 11. Accordingly, the complete exclusion of employees in police service or their unions from the right to consultation amounted to a breach of that right.
The Court upheld the EAT’s decision that the officers were precluded from bringing claims for unfair dismissal under the Employment Rights Act. According to European case law, the consequences of their dismissal for redundancy were not sufficient to fall within the scope of Articles 8 and 14. However, the Court highlighted the “apparent injustice” of the inability of those in the police service to challenge the fairness of their dismissals and suggested that the Government should review the position as a matter of urgency.
What to take away
The Court of Appeal confirmed that the right of a union to be consulted extends not only to redundancies but also to any situation where the terms and conditions or rights at work of those they represent are affected. This judgment paves the way for unions to pursue challenges in relation to deficient consultation exercises, extending beyond the scope of redundancy consultations.
Employers in the police service will be particularly interested to note whether the Government will accept the Court of Appeal’s suggestion that it reconsiders the exclusion of those in the police service from the protection of the unfair dismissal legislation.
For further information on how this issue might affect your organisation, please contact Ron Simms, Alessandra Gettins or Bridget Prosser.