Rights At Work

“Workers and their families have always distrusted the law, and rightly so. It is not an instrument geared to our needs, and the people who administer it are unrepresentative, out of touch and antagonistic to our demands. Nevertheless, through political and industrial action workers have secured a set of legal rights which can be exploited.

Use the law only when industrial activity fails…Going to law is always a risky business-it takes time, it exposes individual workers to publicity and harassment, it hardens attitudes, and workers rarely win outright…You should only use the law when all prospect of solving an industrial problem through negotiation, conciliation or industrial action have vanished”.

Powerful words especially if you are a young, post-grad student about to start writing a thesis with the pretentious title “The Historical Development of Individual Employment Law”. They are from the first 2 paragraphs of “Rights At Work, A Workers Guide to Employment Law” published in 1979 by Pluto Press.  This book was found on the shelf of many union officials and quite a few labour lawyers, including myself in the 1980’s.

The words quoted above deliberately echo the famous opening words of “The Worker and the Law” by his teacher at the LSE, Bill Wedderburn

“Most workers want nothing more of the law than that it should leave them alone”

The author has just died, tragically young…HHJ Jeremy McMullen QC.  He was then an official in the General and Municipal Workers Union.  Subsequently he became a practising barrister, QC and Senior Judge at the EAT until 2013.  A pretty unique career path.

I leave it to others to write his obituary.  My purpose is to explore whether Jeremy was right and whether what he said above is still valid today.

In 1968 the Dagenham Fords Sewing Machinists (as in the film and now  musical with the earworm of a title tune, “Made in Dagenham”) went on strike for equal pay.  They wanted re-grading from unskilled B grade to semi-skilled grade C.  They settled for a wage rise to 100% of B grade but not the re-grading to grade C.  They didn’t get “equal pay” with their male colleagues.

In 1983, the Equal Value Amendment Regulations were introduced by a reluctant Tory government on the back of an adverse European Court judgment.  The first case brought to tribunal in 1984 was by the same Dagenham Fords Sewing Machinists making the same demand for re-grading. They argued their work was of equal value to that of the male semi-skilled grade C workers.  My firm was instructed by the union to act.  I was a lowly articled clerk taking notes at conferences and running errands.  Suffice to say the case was lost as was an appeal.  The women then went on strike in December 1984 and stayed out for 9 weeks closing down production. Arbitration through ACAS led to a ruling that they should be re-graded to grade C.

Ten years later, a union activist on the Underground was dismissed for allegedly assaulting a manager.  Now qualified as a solicitor, I was instructed by the union to take a claim to the tribunal for interim relief on the grounds of union membership and activity.  The case was won, mainly due to the brilliance of my client in the witness box.  London Transport refused to reinstate and so the tribunal made a continuation of contract of employment order (I remember being quoted in the Evening Standard, saying how outrageous it was that tax payers money was being wasted paying my client to tend his garden).  The Central Line then had a 1 day strike, the matter was referred to an ACAS conciliator and my client got his job back.  He is now Assistant General Secretary of the union.

At the Matrix Chambers Employment Seminar yesterday in a discussion about the increase in interim relief cases in whistleblowing claims, James Laddie QC asked me why there were so few trade union activities claims.  My recollection was that I probably ran on average 1 case per year but was only successful in one other case in 30 years (ironically where I instructed Jeremy).  The common factor in both cases was the performance of my client in the witness box compared with the employer’s witnesses.  Such claims are very hard to prove to the satisfaction of the tribunal and even if you win the employer doesn’t have to reinstate.  The employer also gets 2 bites of the cherry to get their evidence right as to why trade union membership or activities played no part in the decision to dismiss, “anyone is free to join a union” and “some of their best friends are union members”.  Tactically interim relief is often not the best option.

These are but 2 examples from my personal experience that seem to bear out Jeremy’s words. There could be many more.  Of course when Jeremy wrote those words we were in a very different economic world.  The labour market was completely different.  Union density is now 25.6% with 6.5m members.  In 1979 it was over 50% with 13.1m members.  For many workers today, the protection of strong union membership with terms and conditions set by collective bargaining, is never going to happen.  The law is the only protection of minimum standards of fairness and dignity at work.  The reality for many workers is insecurity and exploitation, with pay below the minimum wage, zero hours contracts, casualisation and unsafe workplaces.

Matters will only get worse if the Tories are elected in May with a working majority.  We are promised further restrictions in strike ballots with new minimum thresholds.  Osborne hinted at Davos there would be further changes to facilitate labour mobility (no fault dismissals a la Beecroft?)

And now you have to pay for the privilege of enforcing your rights.  If Jeremy was writing “Rights At Work” today he would add a sentence.  “And you have to pay a £1200 tax to enforce your rights”.

Passing new laws is not necessarily the answer.  What is?  I await your comments.

There is to be a Jeremy McMullen Memorial Fund to support female candidates for the Bar through work-experience and marshalling.  Donations can be made here.

HHJ Jeremy McMullen QC 1948-2015, trade union official, barrister, judge, friend, neighbour and occasional cycle to work companion, you will be missed but the debate about Rights at Work will continue.

8 thoughts on “Rights At Work

  1. sad but true, the general delight of seeing a Labour Government elected in 1997 with a huge majority was soon tempered by the fact that their stance on employment rights was not any different from the previous administration.
    Blair has a catalogue of crimes to answer for but having the power to change the lives of millions of workers for the better and refusing to do so is right up there.

  2. To keep to a hopeful note, I think there are two positive directions that Rights at Work might go.

    First, the sort of technological developments that have facilitated a ‘flexible workforce’, might equally facilitate flexible unions. From an outside perspective, much of the decline in union membership isn’t particularly related to the law or to Unions themselves — it’s about the changing nature of the workplace. People on zero-hours contracts, agency workers, etc simply find it much harder to organise themselves.

    But technology is making it easier to organise. At the moment we’re mostly organising ourselves into coffee klatches on twitter. But it’ll be interesting to see if unions can make inroads into these areas by finding new approaches. There’s an interesting (if terribly utopian) take on the possibility by Cory Doctorow’s ‘For the Win’: http://www.amazon.co.uk/Win-Cory-Doctorow-ebook/dp/B008ZUFLIS/

    Second, we may simply have to continue to reassess the implicit collective laissez-faire assumptions that underpin much of UK labour law. If we can’t deal with pay, conditions, pensions and job security through collective action, because large sections of the workplace have become incapable of effective organisation, we may have to significantly extent individual employment right and in general have greater regulation of the workforce.

    Of these two, I rather prefer the first one — to the point that I think it’s probably sensible to start to consider legislation to encourage union membership and union activity. Because, although increasing union power has potential downsides, I’d rather that over a) unchecked capitalism that will grind us all up in pursuit of profit and b) a serious move towards the sort of planned economy that, historically, hasn’t worked all that well or trying to extend individual employment rights into areas like pay negotiation where they’re really not the right tool for the job.

  3. Well, I wish I shared Michael’s optimism – but I can’t say I do. If there was ever a time for the trade union movement to reverse it’s long-term decline, it was surely the years since 2008 – yet that hasn’t happened. Conservative governments will always look for new ways to undermine a key source of funding for their principal political opponents, and Labour governments cannot be relied on to do much more than tinker with such legislative changes – so trade union power is steadily ratcheted down. Intelligence-led State enforcement of workplace rights could fill at least some of the vacuum, but Conservative governments will never go down that path and the TUC will always use its influence to prevent any Labour government from doing so to any meaningful extent (because it fears that more/better State enforcement would hasten the decline of unions). And, as in 1979, the senior judiciary are too busy playing intellectual games with each other to have any significant influence on the real world.

    But … hang on, what am I saying? Duh! For a minute there I forgot about the extension of the right to request to flexible working – which has already solved the problem of exploitative use of zero-hours contracts – and shared parental leave, which will quickly solve all the other problems.

    Yes, we are just a few weeks away from Utopia. Thank goodness for the Liberal Democrats.

    • I’m not sure I’m optimistic; but I do think things might get better, even if they might also get worse.

      Your point about the problem of tinkering around with minor new rights is a good one. The most urgent problems in employment law now now are not about needing more rights, but about fixing the system of enforcing those rights. And it’s not just fees (large though they loom). It’s also the problems of unpaid ET awards and the structural issue that enforcing lots of in-employment rights means risking dismissal.

      Separate to that, I think, there are a whole bunch of work issues that are really employment issues, not necessary employment law issues (although the law may play a role). There are real problems for us as a society of moving too far towards a system of insecure work on bad conditions. In the short-term, it’s bad for the people working in that way, for all the obvious reasons.

      But it also creates real long-term issues for both them and society. For example: What are we going to do if a larger proportion of potential mothers don’t get maternity pay and maternity leave — because they’re not employees? Do we expect them to stop having children? Do we expect families to bring up very young children while working long but unpredictable hours for little money? Are we worried about the impact that this will have on both parents and children? What are we going to do about the issues around affordable child-care?

      What are we going to do if a very large section of the population that has never got a workplace pension and never had the sort of regular income that would allow them to make alternative provision? Do we just accept their twilight years will be pretty harsh? Do we try to look after then through the benefits system? Do they just keep working for longer? Do we expect their families to support them (which, if they’re in the same insecure, low paid work might be rather difficult)?

      One of the things I worry about is the extent to which the employment experience may be bifurcating. People in broadly middle-class jobs may continue to get the benefit of employment rights as well as new legal entitlements that come in and beneficial changes to culture. For example, flexible working is a very good thing, particularly for parents. There was hardly any of it around 20-30 years ago — now it’s much more common, which is real progress. That’s partly about new legal rights, but also to do with changes to culture that are only tangentially related to employment law.

      But, at the same time, there seem to be more and more people who just fall outside that sort of job. For them, changes to the law don’t really matter because they either don’t apply to or they can’t effectively enforce them. And changes in culture don’t really seem to be helping either. This is the nasty underbelly of the world of work that people don’t really like to think about. And one of the issues with it, is that we’re effectively subsidising low paying employers through the benefits system.

      These are very real and intractable problems. But, at the same time, we have made great progress on a lot of fronts. I do think equality issues are moving in the right direction. Sometimes progress is depressingly slow — but think of where women or BME workers were in the 1970’s. I think it’s better now. We’ve had the national minimum wage for less than six years. Of course it needs better enforcement and should be higher. But it’s better to have it than not — and I doubt the Living Wage campaign would have been as successful without the NMW being there first.

      We’re not close to Utopia yet. In fact, I don’t think you can even see it from here. And we get pushed back as well as stepping forward. But who said saving the world was going to be easy?

      Semper fi. ;->

      • I think someone’s going to have you under the Advertising Code, Michael, for tweeting that we are arguing (again), because I agree with pretty much everything you say there. I am just more cynical and jaundiced than you.

        I certainly agree that fixing the enforcement of existing rights is much more important than enhancing rights, or creating new ones. The Blair government came to that conclusion as long ago as 2006, but the inability of ministers to do joined-up government, and the resistance of the TUC, ensured that pretty much all that came out of that was the Pay & Work Rights Helpline. And, since 2010, most of the agencies that sit behind that helpline have been severely cut (with the BIS employment agency standards inspectorate reduced to a rump of just three staff). Enforcement of the NMW stands out as being relatively unscathed by austerity, and the budget is now increasing rapidly (credit to Cable & Swinson for that), but even £12m is still a piddling sum when set against the known challenge of systemic non-compliance (and outright wage theft) in the care and cleaning sectors, to name but two.

        Worse still, the ET system has been largely dismantled by the Tories and Liberal Democrats (though let us not forget that Tony Blair tried to introduce fees in 2001, or that it was Labour ministers who in 2007 granted their successors the power to introduce fees by secondary legislation). And I’m glad you mentioned unpaid ET awards. Because who was it, when I started campaigning on that issue in 2004, who declined to support me, telling me (and the then ministers and officials) ‘it’s not a problem’? The CBI? No, it was the TUC. So, a decade on, and what progress has been made? We don’t even have a central, online register of employers who have failed to pay an award. And, before I move on from ETs and fees, I am reliably informed that, at last summer’s National Policy Forum, it was principally some unions that resisted the ultimately successful(ish) move to get abolition of ET fees put into the final policy document (supposedly the basis of Labour’s general election manifesto).

        But the eyes of politicians glaze over when they have to think of the difficult and messy task of actually making legislation work for people. They much prefer to announce and then pass new laws, knowing full well that they will have moved on to a different brief long before their law is judged by those who have to implement it and/or those to whom it is applied. So, for example, Labour has decided to pass a law banning the exploitative use of zero-hours contracts, even though no one has yet been able to say how the law will differentiate between an exploitative zero-hours contract and a non-exploitative zero-hours contract. The ban will not be worth the paper it is written on – rogue employers will either just ignore it or adopt new ways to exploit their workforce – but the junior minister who rams it through Parliament will be dealing with bankrupt police forces or crumbling hospitals by the time that becomes undeniable, and a new minister will no doubt want to pass another new law.

        And, yes, now that I’ve looked up what bifurcation means, I completely agree with your bifurcation thesis. Flexible working and parental leave is all very well, let’s have more of it, but there is a growing chasm between the have and the have nots in the labour market. Life on a zero-hours (or simply no) contract paid well below a living wage may not be quite as bad as the in-work poverty experienced by previous generations, but it’s still pretty hellish and, in any case, we are supposed to have moved on from 19th century working practices. In a society where young men can earn £500,000 a week from playing a sport they just happen to be good at, we really ought to be able to find more than £12m to ensure that all workers get at least the minimum wage, and not quibble about spending £70m on a tribunal system that ensures at least a degree of security and fairness for millions of workers (though try telling that to some of those ruthlessly micro-managed out of their jobs in recent years by a supposedly benevolent and equal opportunity employer like Citizens Advice).

        This saving the world lark is crap, isn’t it?

  4. A reply to Richard reply to me (WordPress.com seems to resist sub-sub-comments — doubtless wise):

    I’ve tempered my optimism here today by an extended twitter rant about Labour’s policy announcement on zero-hours. Which, as you say, seems to wilfully refuse to engage with the difficult issues in favour of pleasant sounding bromides. So I fear we’re drifting even further towards complete agreement.

    But I’m still determined to remain as cheerful as possible. We agree that proper enforcement is the next big challenge. I’m afraid I think we might be working on that for the next couple of decades. Introducing fees was a hammer-blow — but it was delivered to a system that was already fairly badly flawed (as you say, let’s not pretend the last government got everything right!) And there are some terribly difficult problems to be solved (when are there not?)

    But I’m idealistic enough (maybe young and naive enough) to think in 20-30 year cycles. And I think democracy is like that old saw about the stock market. In the short-term it can be pretty bloody stupid (and totally ridiculous). But, in the long-term, real problems do eventually float to the top and get looked at. Often in some sort of horribly bodged together compromise, perhaps, but that’s life.

  5. ‘New laws not necessarily the answer’.

    If I had to boil down your interesting post it would be the workers are increasingly covered in the brown stuff and laws ain’t helping. I’d agree.

    As someone once said before being put on a train like a sealed bacillus heading for Moscow to start a revolution ‘Laws are the epi-phenomena of the power relationship in the economy’. Right now (forever?) the unions are down and the bosses are up.

    One law I would like to see is lawful secondary action. Making such action legal might just have a slow burn on the wider economy by putting more into wage packets than assets which has been part of the problem.

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