“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.