A collective bargaining agreement is an agreement between an employer and a trade union. This allows an employer to agree with the union the terms and conditions of employment (and possibly other matters) in relation to employees who are covered by the agreement.
The general position is that where a provision of a collective agreement is incorporated into an individual contract of employment, that provision then gains independent contractual effect as a term of that contract, which may be relied on by the employee.
A trade union can agree contract changes on behalf of employees covered by the terms of the collective agreement only when this has been expressly brought to the employees’ attention or agreed with them.
What is the difference between a term agreed with the union though a collective bargaining agreement and a change of contract proposed by the employer?
A trade union can agree contract changes on behalf of an employee (or a group of employees) when it is written in the employee’s contract that the trade union can agree changes (a ‘collective agreement’). A collective agreement can only be enforced if it is included (‘incorporated’) in the employment contract. If this is done correctly, the changes are binding and the employee will be subject to the new conditions (although note our comments below: an employee may wish to challenge a variation of contract where he/she considers that the term may be discriminatory).
By contrast, a change of contract proposed by the employer which has not been agreed to by a union through a collective agreement is not automatically incorporated into an employee’s employment contract.
The difference is that where an employer looks to change a contractual term without involving a union, the employee could simply refuse to agree to the change. See here for more details.
If your contract of employment says that it is subject to the collective bargaining agreement, this means that any contractual changes agreed between the employer and the union under the terms of the collective bargaining agreement would automatically flow through to the terms of your employment contract.
However, a term of a collective agreement is void, and a rule of a provisions unenforceable against a person, if it promotes or provides for treatment of a description prohibited by the Equality Act 2010. A person may make a complaint to an employment tribunal that a term is void, or that a rule is unenforceable, as a result of these provisions, and if the tribunal finds that the complaint is well-founded it must make an order declaring that the term is void or the rule is unenforceable.
What would be the impact of a union agreeing with an employer to a change of hours under the terms of a collective bargaining agreement and no other employees challenge or complain about the change?
If you are a woman and the change of hours has a discriminatory effect because of your childcare responsibilities, you may have a claim for indirect sex discrimination. This is the case even if the union has backed the change and/or where other employees have not challenged or complained about the treatment.
Just because the union has agreed to the change doesn’t mean that the change is lawful. There are plenty of case law examples where changes have been introduced by employers with union backing (or indeed where the union has pushed for the change), and the change has later been found to be discriminatory.
It’s also possible that other employees have complained about the treatment but they might have done so confidentially with the employer and/or the union.
If the employer has introduced a criteria or change which disadvantages an individual or a group of people with a protected characteristic and there is no legitimate business justification for it then the change in question will be discriminatory.
Here, the change of hours may result in the employee with childcare responsibilities being unable to organise adequate childcare cover. She has been put at a disadvantage by comparison with other employees. If the employer cannot show a business justification for the change, the imposition of a change of hours could be indirect sex discrimination.
What steps should you take if you are in this situation?
- Talk to your employer and the union
The first step in this situation is to keep talking! Discuss with your employer and the union the reason for the proposed changes. Explain how it will affect you, other options you could look at and what could happen if you cannot reach an agreement.
In broad terms, the role of a trade union is to work with the employer to agree changes which are in the employees’ interests.
If you feel that a change imposed under the terms of a collective agreement doesn’t work in your interests (for example, because the newly imposed change of hours doesn’t accommodate your childcare responsibilities):
- explain that you oppose the change of hours; and
- explain why (for example, detail the effect that the change would have on your childcare arrangements).
This might trigger the employer and/or the union to reconsider the change, especially if they hadn’t realised that the change might be problematic for you (and possibly other) employees.
It’s always best to keep talking for as long as possible to try and reach a better outcome. It could be that the employer is willing to agree to maintain the existing working arrangement with you, to help to accommodate your childcare responsibilities.
- If you don’t feel that you’re getting anywhere, you could make a formal complaint by raising a grievance – this is a useful way to keep talking with the employer about the changes.
- Work under protest – if a change is imposed that you do not agree to, you can choose to temporarily work to the new terms and conditions under protest. You might want to argue that because the change of hours amounts to sex discrimination, the term is not valid and isn’t legally binding. This is because the Equality Act 2010 says that discriminatory terms of contracts or collective agreements are void.
You should only work under protest for a short time so you can formally raise your concerns with your employer or take legal action. The longer you work under protest the higher the risk that you could be seen as accepting the change. It is very important to make it clear to your employer that you are working under protest in writing e.g. every time you get paid. If you do not make your objections known to your employer, they could see this as you accepting the change. This template Letter of Protest may help you.
- Make a legal claim – if you feel your employer has changed the terms and conditions of your employment contract (whether or not the union agreed to the change under the terms of a collective bargaining agreement)) you might be able to make a claim of indirect sex discrimination.
You might also be able to bring a claim against the union for having agreed the discriminatory term with the union.
You may also want to have a look at our Frequently Asked Questions on flexible work and imposed change here.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.