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Was collection of union ‘subs’ a contractual requirement?

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Issue

Some trade union members have arrangements with their employers for their union subscriptions to be deducted directly out of their wages. This is known as ‘check-off’. In the case of Cox v Secretary of State for the Home Department the issue was whether these arrangements had contractual effect so that withdrawal of the facility amounted to a breach of contract and if so whether the employees had in any event accepted the breach by making alternative payment arrangements.

Facts

The union was recognised for collective bargaining and the "check-off" arrangements for collecting subscriptions had been in place for many years. It was referred to in the Civil Service Pay and Conditions and Management Codes in addition to being mentioned in the summary terms and conditions provided to employees. However, check off was withdrawn on 1 December 2014. The union unsuccessfully raised a grievance about this, but no legal challenge was taken in the High Court until 3 December 2019.

Decision

It was held that the check off arrangements had contractual effect taking into account the description used in the Codes and the references to it in the summary of terms. The fact those documents might not be contractual did not prevent terms from being incorporated. The employees’ continuation of work was not sufficient to show implied agreement, and in this regard, the collective grievance had to be taken into account. Even if direct debits were set up to make payments it was not evidence of acceptance.

Key points

The decision highlights the importance of getting the employees’ express agreement to changes to terms and conditions of employment. Simply imposing changes and trying to establish an employee’s implied agreement to the change will be difficult. Even though over five years had passed since the changes in this case it was still not possible to establish implied acceptance. It should also be taken into account that the union will also be able to take action to enforce terms of this nature under the Contracts (Rights of Third Parties) Act 1999 as the check-off provisions conferred a benefit on it.

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