Trade Union in the UK | Desklib

Chapter 4 of this text discusses the legal framework of trade unions in the UK after Brexit. The UK's withdrawal from the European Union (EU) has resulted in significant changes to the legal framework that governs trade unions in the UK, as much of the legal framework for trade unions working in UK companies was drawn from EU law before Brexit. This included the right to collective bargaining, protections against unfair dismissal for trade union activity, and the right to strike. The UK government now has more flexibility to create its own legislative framework for trade unions. However, there are concerns that workers' rights and protections may be weakened as a result of these changes. The Trade Union Act 2016, a key piece of law that controls trade unions in the UK, has changed after Brexit, making it harder for trade unions to engage in industrial action by introducing new restrictions on strike votes and protesting.

Chapter 4: Trade Union in the UK
4.1 A Critical Assessment of the Legal Framing of Trade Union in the UK after Brexit
The legal framework of the UK’s trade union, which was already in a desperate position
before the Brexit, has been dealt a severe blow as a result of Brexit. The UK trade union is a
distinctive structure which has been successful for a long period despite a substantial amount of
uncertainty regarding the precise link between its key dimensions. However, there has been a
significant amount of debate and discussion over the legal framework that has applied to trade
unions in the UK after Brexit. There were concerned that the UK’s withdrawal from the
European Union (EU) might result in a weakening of rights of employees. However, researchers
explained that Brexit has presented a chance to increase the rights of workers and trade unions in
the UK. The legal framework that governs trade unions in the UK has been significantly altered
after Brexit. Moreover, there are significant amount of legal framework for trade unions working
in UK’s companies was drawn from EU law before the implementation of Brexit. This included
the right to collective bargaining, protections against unfair dismissal for trade union activity,
and the right to strike. It is vital to conduct an in-depth analysis of the legal framework which
will apply to trade unions in the UK after Brexit. As a result of the Brexit vote, the UK is no
longer a member of the EU and is no longer subject to EU law. For this, the government of the
UK has more flexibility to create its own legislative framework for trade unions.
On the other hand, there is a potential impact of changes in the legal framework of trade
unions in the UK due to Brexit which is a major concern for workers. It is noted that workers in
the United Kingdom have been granted several safeguards under EU legislation, including the
freedom to form and join organised labour, engage in collective bargaining, and go on strike.
With UK's exit from the EU, these protections were weakened and abandoned by the companies.

The attitude of the British government towards workers' rights and trade unions has changed
after Brexit. A key piece of law that controls trade unions in the UK i.e., the Trade Union Act
2016 has changed after Brexit. It is found that after Brexit, the Act made it even harder for trade
unions to engage in industrial action by introducing new restrictions on strike votes and
protesting. Moreover, it mandated that strike ballots must have a participation rate of at least 50
per cent, with the majority of those casting votes in support of industrial action. As a result, it has
become more difficult for trade unions working for employees in the UK’s companies to both
organise and participate in strikes. Therefore, it is considered as one of the most significant shifts
that has taken in the legal framework in the UK after Brexit. For this reason, the implementation
of the TUA 2016 has become challenging for trade unions to initiate strikes and has restricted the
use of collective funds for political campaigns after Brexit. This has been a contentious issue for
the legal framework of the UK, with researcher believe that it makes more difficult for trade
unions to properly represent the members of their organisations after Brexit.
Due to Brexit, trade union cannot rely on the EU law and European Court of Justice
(ECJ) for the protection of rights of foreign employees. It is important to note that due to Brexit,
trade unions are lacking in providing rights such as collective bargaining, social dialogue, and
protection against discrimination to their employees. The recent judgement made by the Court of
Appeal (CoA) in the case of [Kostal UK Ltd v Dunkley & Others] was the significant case that
had a substantial impact on the legal framework of trade unions in the UK. The “Section 145B
Trade Union Labour Relations (Consolidation) Act (TULR(C)A)” was examined by the CoA for
the very first time in 2019. The decision of the CoA, which favoured the employer Kostal,
overturned the decision of the employment tribunal. When Kostal immediately offered its
workers a set of terms and conditions, bypassing the established trade union in the process; the

employment tribunal stated that the company had broken the law by offering employees
improper inducements to stop participating in collective bargaining. On the other hand, the CoA
supported a decision of employers to propose a wage rise directly to its workforce rather than
going through the trade union. Trade unions have expressed their disapproval of this decision,
arguing that it weakens the power of collective bargaining and may result in a reduction in the
protections afforded to employees. Moreover, due to Brexit, trade unions cannot use EU law or
get protection for collective bargaining from ECJ. Due to this issue and case law, researchers
analysed that legal framing of trade union in the UK has been affected after Brexit.
Despite several concerns in legal framework, researchers have question of whether or not
the UK will proceed with the adoption of EU standards regarding the rights and protections of
their workers. It is because the EU has long been a strong supporter for employees' rights and
established such rights in EU legislation. Therefore, it is critically assessed that Brexit can
weaken several of these protections for employees in the UK in order to remain competitive in an
increasingly globalised economy which can negatively impact on trade unions. On the other
hand, it is also analysed that the ability of trade unions to engage with employers across
international boundaries is heavily impacted after Brexit. Due to such concerns, there is one of
the significant changes that recently occurred in the legal framework of trade unions in the UK
after Brexit was the enactment of the “Trade Union (Amendment) Regulations 2018”. However,
this legal framework failed to address the issues or provide adequate protection to employees. On
the other hand, it has imposed additional obligations on trade unions, including the use of
electronic balloting for strike ballots and the collecting of membership fees. Trade unions can no
longer take fee out of members' wages without first obtaining their specific consent.

Furthermore, the law mandates electronic balloting for strike ballots by trade unions, which has
been opposed by certain unions since it may undermine the integrity of the voting system.
On the other hand, it is found in the case between [R (UNISON) v Lord Chancellor] that
Unison argued that employment tribunal costs exceeded their legal authority. Consequently,
“Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013” informed the
British government instituted costs of £1,200 to file a typical case before an employment
tribunal. However, the judgement of Supreme Court in this case favour trade unions and provide
them protection under Section 42(1) of the Tribunals, Courts and Enforcement Act 2007.
Therefore, the UK’s Supreme Court ruled that charging people to utilise employment tribunals
was against the law since it denied them equal access to justice. Another significant shift in the
legal framework came when the UK government decided to withdraw support for the "EU
Charter of Fundamental Rights". Trade unions were guaranteed protections under this charter,
including the freedom to go on strike and the opportunity to engage in collective bargaining. Due
to the charter's repeal after Brexit, the UK has been deprived of a significant legal foundation for
the protection of workers' rights, particularly the rights of trade unions. In addition, the UK
government has made a number of modifications to the employment laws, one of which is a
revision to the regulations that regulate employment tribunals. Workers are already finding it
more challenging to file claims against their employer as a result of the reforms, which may have
an effect on the ability of trade unions to successfully represent their members.
4.2 Contributing Factors to Trade Union activities in the UK after Brexit
The ramifications that Brexit had on the activities of trade unions in the country are
significant. Changes to employment legislation, economic uncertainty, changes to immigration

policy, shifts in power dynamics, and political situation are some of the factors that have
contributed to the changes in trade union activity that have occurred as a result of Brexit.
Researchers found that alterations to employment legislation are expected to be one of
the most major factors that have an effect on trade union activities in the UK after Brexit among
different factors. After the completion of the Brexit process, the UK government has indicated its
intention to examine and, if necessary, modify a variety of employment rules and regulations,
among which pertain to trade unions. For instance, after Brexit, the UK government has made
changes in employment law which made difficult for trade unions in the UK to operate and
protect rights of employees. Moreover, change in law increased the difficulty for trade unions
activities such as negotiate favourable terms with their respective employers, which may in turn
result in a reduction in the union's membership and influence. The case between [Independent
Workers' Union of Great Britain v Secretary of State for Work and Pensions] presented the
impact of changes to employment law on trade unions and its activities after Brexit. The case
questioned the rights of "gig economy" employees to be considered as workers for the provisions
of UK employment law. The Independent Workers' Union of Great Britain (IWGB) contended
that the UK government had failed to enforce European Union (EU) law that safeguarded the
rights of gig economy employees, particularly the right to collective bargaining and membership
by trade unions. Moreover, IWBG argued that the UK's decision to leave the European Union
(EU) increased the challenge for workers to protect their rights and would undermine the role of
trade unions in the UK. After considering the situation, the UK Supreme Court finally decided in
the favour of the IWGB and found that the UK government had not properly implemented EU
legislation in a manner that safeguarded the liberties of gig economy workers. The case

law highlighted the importance of trade unions in the UK and the possible impact of Brexit on
employees' rights.
On the other hand, another contributing factor to trade union activities in the UK after
Brexit is uncertainty in the economy. It is important to comprehend that businesses and
employees in the UK are finding themselves in a state of uncertainty as a result of Brexit,
especially those who are employed in sectors that are highly reliant on trade with the EU. This
may result in a decrease in the number of available jobs and a leveling off of wage growth. Due
to such issues, the trade union activity has been increased because the number of workers are
joining trade unions to safeguard their interests. On the other hand, the case between [British
Airways v Unite the Union] explained about the negative impact of economic unpredictability. It
is found in this case that British Airways investigated the possibility of decreasing its cabin crew
members working on its aircraft due to ongoing global financial crisis in the UK after Brexit and
COVID-19. Therefore, as a form of protest, the Unite the Union, which represented flight
attendants, went on strike. There was a lot of trouble for passengers and the airline because of the
strike, and it showed how economic instability can effect on trade union activities. On the other
hand, another contributing factor is the alterations to immigration policy after Brexit have an
impact on trade unions activities in the UK. It is important to comprehend that the UK
government has given warnings that it plans to implement new immigration laws that will
impose a restriction on the amount of EU residents who are permitted to find employment in the
UK. Therefore, it can have an impact on the workforce in the UK and could result in a reduction
in the number of people belonging to trade unions if foreign employees are banned from union
participation.

However, the case between [R (Unison) v Secretary of State for the Home
Department] highlighted the changes in immigration policy and it impact on activities of trade
unions. It is found from this case that the imposition of fees by the government for non-EEA
migrants that were looking for work in the UK was subject to protest from Unison. The argument
presented by Unison was that the fees actively discriminated towards migrant workers and
prohibited them from gaining access to employment and union membership. Furthermore, trade
unions in the United Kingdom are expected to be impacted by the shift in power relations
between the UK and the EU after Brexit. It is important to note that power shift is a contributing
factor because EU advocated for worker protections in the UK and other countries. Therefore,
the activities of trade unions such as ability to defend workers' rights and bargain with employers
are hampered because the UK decided to withdraw from EU standards after Brexit. An important
case that demonstrates the influence that power dynamics have on trade unions is [Fire Brigades
Union v. Minister for the Cabinet Office]. It is found that the applicant filed a legal challenge
against the decision of the UK government to impose additional pension requirements on
firemen. However, the trade union argued that the government should have consulted with them
before implementing the changes. Moreover, the proposed changes unfairly restricted the
authority of trade unions to bargain with employers. Considering this case law, it is found that
the shift in power is a contributing factor which can impact on trade union activities such as
bargaining with employers after Brexit.
Moreover, the political situation that existed in the UK after Brexit became another
contributing factor in changing the activities of trade unions. Different researchers reported that
because of Brexit, issues including national autonomy and sovereignty have received increased
attention, which resulted in a decrease in support for international institutions like trade unions.

On the other hand, trade unions would still have an important part in preserving the freedoms
and desires of workers in the UK, as they are forced to adjust to the shifting political and
economic environment after Brexit. However, the case between [R (Miller) v Secretary of State
for Exiting the European Union] is a considered as a significant judicial ruling that focuses on
the influence of the political situation on trade unions in the UK after Brexit. It is found that Gina
Miller, a businesswoman and activist, appealed the decision made by the government to activate
“Article 50 of the Treaty on European Union” without first receiving permission from
parliament. Moreover, she challenged that the ruling undermined the legislative authority and
harmed the rights and safeguards of employees, especially those guaranteed by trade unions.
However, the Court of Appeal stated that the administration cannot trigger “Article 50 of the
Treaty on European Union” without parliamentary consent. The case explained the contradiction
that exists between the rights of employees and the sovereignty of nations, and also the potential
impact that Brexit may have on trade workers and its employees in the UK. The significance of
parliamentary oversight and acceptance in the UK's constitutional framework was also
highlighted by the case.
4.3 The Current Workings of Trade Union in the UK
4.4 Crafting a way forward