Wednesday 30th May 2012 at 5:35am
Tribunals on Trial
Dave Statham reviews Struck Out: why employment tribunals fail workers and what can be done, by David Renton, published by Pluto Press, £19.99 (paperback)
from Labour Briefing, June 2012
David Renton is a barrister specialising in employment law, so it is no surprise that he has written a book which dissects the work of employment tribunals and their failings.
He traces the origin of tribunals and explains why many of the current weaknesses stem from the very way in which they were first constructed. He explains that the original impetus was largely to do with preventing unofficial strikes. It might be argued that the failings of tribunals which Renton details are themselves partly responsible for the upturn in unofficial action which we have seen recently, such as the sparks’ dispute.
His main thesis is that employment tribunals have manifestly failed to deliver any real justice for workers and have, in fact, led to unions becoming obsessed with the tribunal route – with the result that collective action has been neglected.
He sets out the marked failure of employment tribunals to deal with the injustices which are brought before them. He cites a multitude of facts: just one is that of the 40,000 plus unfair dismissal cases in 2010-2011 only eight resulted in orders reinstating or re-engaging the claimant. If collective action resulted in such a pathetic level of success we would question its usefulness.
Renton demonstrates that the reason tribunals do not deliver justice is because of the very basis on which they are constructed. The roots of the tribunal system are intertwined with common law which still looks at employment law from the master and servant perspective.
Even before the attack on tribunals by the Con-Dems the system was rigged in favour of the employers. With the changes now being brought in, tribunals will be a very expensive way for workers to fail to achieve justice. If unions continue to pursue the tribunal route they will both waste their members’ money and fail to achieve any substantial success.
Renton sets out in some detail the choices between litigation and bargaining, with examples from the pursuit of equal pay. Those with long memories will recall that the fight for equal pay began with strike action. While the Equal Pay Act was a step forward, the contribution of tribunals to taking the fight forward has been limited.
Renton also examines why so few race cases are won in tribunals: while three quarters of wage claims are won, only one in six race cases succeed. After examining a number of seminal cases he concludes that the judges who hear employment cases have a tendency to look for “common sense” marker that a particular witness is or is not telling the truth. He regards this tendency to disbelief to be central to the failure of most race cases at tribunals.
Renton looks at human rights decisions in tribunals and the attempt to develop a human rights sensitive culture of decision making. He quotes a number of cases where the Human Rights Act has been of limited use. He concludes that a tribunal claimant winning because of the Human Rights Act is rare indeed.
In a fascinating chapter on unions and the law he looks at unions and the funding of tribunal claims. In a table setting out unions and legal funds per member he demonstrates what a dramatic effect the Con-Dems attack on tribunals (by increasing charges) will have. The highest figure he finds is £11.114 per member. The charges now being imposed by tribunals mean that unions will not be able to fund cases for more than a handful of members, and the knock-on effect of cases not being supported because of costs will dramatically affect the ability of workplace reps to pursue potential cases.
All in all this is a fascinating book and anyone with an interest in employment law would do well to read.
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Monday 28th May 2012 at 6:00am
Your rights under employment law: what any junior academic needs to know
[Notes of a talk at Saturday’s conference, “What is the future for young academics?”]
I have one main theme and five smaller points. The big idea is this: when demanding your rights under the law, almost always the most effective way to do this is by raising them at work, organising, and demanding that your employer implements them.
The most important court for resolving workplace disputes is the Employment Tribunal. The most important right which is the subject of Tribunal litigation is the right not to be unfairly dismissed. The default remedy for unfair dismissal should be that the claimant gets their job back. But in 2010-2011 of 50,000 Tribunal claims, of which 40,000 which were resolved, out of 10,000 dismissal claims that made it to a hearing, and from the 5,000 of those in which the claimant succeeded in obtaining a judgment saying they had been unfairly dismissed, only 8 orders for reinstatement or re-engagement were made. Not 8,000, not 800, eight. Just one in 600 people whose cases were won at a final hearing got their job back.
Most of the others will have received financial compensation. But in 2010-2011 the average award for unfair dismissal was just £4,591, or a little bit more than 2 months’ salary for the average worker. And only around 60% of these awards were ever paid.
These examples show that where rights are established, the courts often aren’t the best place to achieve them. But that doesn’t mean that the rights themselves are meaningless.
Often when people organise they find that managers will concede rights, knowing that these are rights set out in law. Managers don’t like it when they are confronted by campaigns involving large groups of workers. Campaigns can create a dynamic, in which managers often find they want to make concessions, just to take back control of the situation.
Sometimes, the threat of a Tribunal claim can be the most effective means of concentrating a manager’s mind – especially where the managers checks with their employer’s solicitor and the message comes back that the right exists, and a Tribunal is likely to enforce it.
Threatening litigation can be effective, so long as the workers involved understand that the threat is part of negotiations, and that (if you want to win) the beginning of the process is organising and the end is winning through bargaining.
Hourly-paid lecturers, and researchers or teachers on fixed-term contracts should never assume that bargaining only takes place at formal meetings in which the leading representatives of the campus union meets with the senior managers of the university. Of course these meetings happen and are important. But many of the demands of young academics are modest, for a university pass or an identified email addresses, for a piece of paper setting out the terms of their contract, or some indication of a department’s plans for a course and whether they are likely to be kept on. These sorts of demands are established in meetings with managers from your own department – that is, at a much “lower” level than the set piece meetings between universities and unions.
With that message – that negotiation is usually a more effective way to entrench rights than litigation – I now want to come on now to five very specific rights which are set out in law.
1) The right to be accompanied
Section 10 of the Employment Relations Act 1999 provides that when a worker is asked to attend a disciplinary hearing or a grievance hearing (that is a meeting called by the worker, to address her complaint), the worker is entitled to be accompanied by a union official, a union representative or a fellow worker.
Note, all workers have this right, even someone as peripheral to a department as say a PhD student required to teach a small number of hours as a condition of her bursary.
2) The right to equal treatment
Regulation 3 of the Fixed-term Employees Regulations 2002 makes it unlawful for an employer to treat a fixed-term employee worse in the terms of their contract than a permanent employee.
The terms of the contract include pay.
The single greatest scandal of the university sector is that hourly paid staff, who of course deliver an increasing proportion of the total curriculum, are paid about a quarter to a fifth as much, per hour delivered, as permanent staff.
The majority of permanent staff are men. The majority of fixed-term staff are women.
There is a long-running legal battle between UCU and the employers in which UCU is trying to win a declaration from a higher court that this practice is unlawful.
While that struggle continues, it should be recalled that the terms of the contract don’t just include pay, but almost everything else – hours worked, access to pensions, and so on.
3) The right to a permanent contract
Regulation 8 of the Fixed-term Employees Regulations 2002 has the effect that where an employee has been continuously employed for a period of more than four years (not necessarily on the same terms throughout), and their contract is renewed for a further fixed-term period, the renewal automatically creates a permanent contract.
The way it works is that if a worker is offered a renewal, and the renewal is only for a fixed-term, this limitation has “no effect”. The employee is deemed to be on a permanent contract.
(For calculating the 4 years, lecturers employed from November to May are deemed, as they are in employment law generally, to have been employed throughout the year).
The employer can escape this by pleading “objective justification” for a further fixed-term contract, but the circumstances in which this would succeed would have to be striking and unusual. It probably wouldn’t be enough, for example, just to say – it’s another fixed-term contract, because the ultimate funder is an external body.
4) The right not to be dismissed for union activities
Where junior academics organise, they should always do so as union members. If they do that, they are protected against dismissal.
Section 152 of the Trade Union and Labour Relations Consolidation Act 1992 makes it unlawful to dismiss an employee for their union activities.
This right starts from day one of employment.
A trade union activist has, in other words, better protection from dismissal than an ordinary employee who is only protected from dismissal if they have been employed for more than 2 years (if they were taken on before 6 April 2012, the requirement is 1 year’s service).
5) The right not to be dismissed by the non-renewal of a fixed-term contract
Section 95 of the Employment Rights Act 1996 makes it perfectly clear that the renewal of a fixed-term contract is a dismissal.
This means that fixed-term workers are entitled to notice pay: at the minimum rate of a week per year.
It also means that when an employer cannot give guarantees that named staff will be re-engaged from one academic year to the next, the employer is in a collective redundancy situation, with all the duties to consult with the union that follow.
I’ve emphasised these rights, but never forget the big point I opened with: that rights are best established through organising and negotiating. That’s how the real victories are made.
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Friday 25th May 2012 at 6:00am
More grisly murders; journalist gets employment law wrong (again)
While journalists at the Daily Telegraph deserve credit for having obtained a copy of the full Beecroft Report, they have done us a considerable disservice by misrepresenting the policy debates, no doubt with the encouragement of some ministerial press officers eager to protect their minister’s reputation.
Above their article in Monday’s online edition revealing the contents of the report, the Telegraph’s journalists wrote “Adrian Beecroft’s report lays bare the breadth of the revolution in employment law which was being considered by close aides to David Cameron last Autumn – and the degree to which the Liberal Democrats in the Coalition ensured that only a pale shadow of his proposals never (sic) saw the light of day” (emphasis added).
Rather than take at face value claims by Lib Dem ministers to have ensured that only “a pale shadow” of Beecroft is being implemented, journalists should have gone further and checked what proposals the Coalition is actually making for employment law.
Had they done so, anyone following the police debates, would have pointed out to them that almost all the areas for “reform” identified by Beecroft are subject to either public consultation or proposed changes.
In particular, while Vince Cable has been all over the press saying that his department will drop Mr Beecroft’s proposals for Compensated No Fault Dismissals (CNFD), the policy remains subject to a public call for evidence which has not closed.
Moreover, a careful comparison of Mr Beecroft’s proposals and Mr Cable’s shows that while the former’s proposals would represent a significant tipping of employment law in favour of employers, Mr Cable’s actually go further.
• Beecroft says CNFD should be used only for capability dismissals, Cable’s proposals do nothing to restrict the set of dismissals coming within CNFD (making it potentially available to employers as a cheap alternative to redundancy).
• Beecroft says CNFD dismissals should attract the statutory redundancy payments, Cable asks whether there should be a cap to CNFD awards, putting them below redundancy payments.
Since Monday, we have had further clarity as to the government’s proposals for Employment Law reform. In particular part 2 of a draft Enterprise and Regulatory Reform Bill has now been published, no doubt to be known in future as “ERR” or “the Beecroft Bill”.
While the final version of the Bill may be very different from this draft (which makes no mention, for example, of the Coalition’s signature plans to introduce punitive fees for Tribunal Claimants), revealingly the Bill outlines one significant change (which was not in any versions of Beecroft, not has it been subject to public consultation in any form). This is to give Ministers the power in future, with no effective parliamentary scrutiny, to make Regulations limiting the compensatory award for unfair dismissals to a maximum of between 1 and 3 times the median wage (i.e. c£26,000-£78,000 in today’s money).
The maximum compensatory award is presently £72,300. No one should have any doubt that if this proposal is introduced, ministers will reduce this to the lowest amount in their power, namely c£26,000.
Beecroft, for all his faults, had a very different proposal. He suggested that the compensatory award for unfair dismissal should be set at a fixed amount of (say) 9 months wages. He recognised that this might cause injustice in some cases (if workers actually took longer than 9 months to find a job), but would have an advantage in that parties would know the value of a claim, and would – on both sides – find it much easier to settle.
Ironically, given that the general tenor of the Beecroft proposals was to benefit capital at the expense of labout, if this was introduced, this part of the Beecroft proposals would benefit many workers. As I have explained elsewhere, the median award for unfair dismissal (including both the basic and the compensatory award) is presently £4,591, or just over 2 months wages. Beecroft’s proposal would have the effect that the average unfair dismissal claims would attract around 4-5 times as much compensation as they do now.
Cable’s counter-proposal, unlike Beecroft’s offers “no minimum floor” for workers.
Rather, all it does, is reduce the value of workers’ claims.
So, when the Telegraph’s journalists announced that Liberal Democrats had removed all but a shadow of the Beecroft proposals, what they should properly have gone on to explain, is that the Lib Dems had done so only by pushing an already nasty package of reforms very dramatically further in the employer’s favour.
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Tuesday 22nd May 2012 at 9:34am
The Beecroft Report: A Financier’s Dream
“Reading the details of the Adrian Beecroft Report, which has now been published on the Daily Telegraph’s website, what strikes me is really how few surprises there are. The report anticipates – wholly unsurprisingly – most of the malign ‘reforms’ of employment law on which the government has since been consulting.”
A response to the Beecrfot report; more on the New Left Project website.
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Friday 18th May 2012 at 6:00am
Which court can I go to?
There are many employment disputes which are not heard in the Employment Tribunal. They include claims brought by the employer, which can only very be exceptionally heard at the ET, some equal pay claims, most breach of contracts claims (unless there has been a dismissal) and almost all personal injury claims (save claims for injuries to feelings caused by discrimination).
What should be done where a claimant has the choice of two courts? Often, the respondent’s view is that the decision should be taken by the court rather than the claimant.
Often, judges are sympathetic to this view. Judges distrust the idea of (say) a Tribunal deciding whether an employee has been fairly dismissed and a county court deciding whether the employee is owed to notice pay, because the employer’s defence to both claims may well be the same (the employee was guilty of gross misconduct and I was entitled to dismiss her summarily). And what sort of justice would it be if two courts were to determine the same facts and decide them differently?
The general approach of the courts is to say that one set of proceedings should be paused (in legal language “stayed”), but which proceedings to stay will depend on the facts of the case. In the most general terms, simple cases are more suitable for the Tribunal as a specialist employment court, but the High Court is considered better where the claim is high or the facts or law complex.
The Court of Appeal recently had to consider a case (Halstead v PaymentShield) which concerned live Tribunal proceedings and a prospective High Court claim, which the Claimant had no prospect of funding save through successful litigation at the Employment Tribunal.
The EAT determined that the employment tribunal proceedings should be stayed, essentially because the case was likely to be complex.
The problem for the claimant was that he had no High Court claim, and no prospect of funding it unless he succeeded at the Tribunal first. This was indeed why the employer was so keen to push for the “High Court” option, because rather than pressing on with two claims at once, it meant there was no claim at all.
The Court of Appeal, in a triumph of good sense, has now agreed that the Tribunal case should go forwards. It is a modest victory, but one of potentially wide application where claimants have the choice of civil or employment proceedings.
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Wednesday 16th May 2012 at 6:00am
Fees and costs: what they may mean for unions
Over the last few weeks, I’ve been blogging about the Coalition’s reforms to the Employment Tribunal system, and how they will change a system which is already weighted in favour of employers. I’ve suggested that many Claimants’ individual complaints would have better outcomes if the workers concerned were to pursue their cases collectively rather than individually.
Today, I wanted to post something on the impact of the Coalition’s reforms on trade unions as collective representatives of workers.
My starting point is that the present emphasis on individual representation has all sorts of defects from the perspective of union democracy.
Individual litigation is an altered form of an original dispute between worker and employer. The dispute is taken out of the workplace and put before a Judge, with representatives to speak on behalf of both sides. As the conflict is taken away from the workplace, the opportunities for workplace representatives to control the legal running of a case become dramatically reduced.
There is no union rep watching over the union full-timer when they tell the union’s solicitor what the case involves.
No union rep is present when the solicitor advises a client on how to advance their claim – even if (as sometimes happens) the issue is whether to reduce the worker’s criticisms of their managers (and de-politicise the claim).
The union rep is not present int he Tribunal when the union’s barrister asks questions of witnesses or puts final submissions to the Tribunal.
Many legal representatives would welcome the involvement of trade unionists who know the workplace and the individual managers far better than we do; in practice we rarely, if ever, get the chance to have that dialogue.
Now, seeing the system from the point of view of unions as a whole:
The present system barely keeps unions “in the game” of offering tribunal representation to their members. The reason is that union subs are simply too low to sustain the calls that a union can expect to have made on it.
There are very few unions that charge more than £10 per month or so in subs; and (as I show in my book) there are almost no unions that set aside more than £10 per members per year in their legal budgets (the reason the proportion is low, is that most of what a union does is to operate as a membership and negotiation body; these roles takes the bulk of the funds). This £10 has to cover all the legal services on which a member might call – often personal injury claims, as well sometimes as criminal, copyright or general civil cases.
Even if all of the £10 was set aside for the Tribunal, that would mean that each member was contributing around something like a three-hundredth of the likely cost of representation in a one-day Tribunal claim.
Many unions recruit people on the basis of a promise, sometimes open, sometimes more hinted at than real, that where workers get into difficulty, the union will support them. But the increasing experience of union members is that union are unable to deliver in the promise, and so (as I document in my book) there is a growing tendency for members of union to sue, either because union support has been refused, or sometimes because the union’s advice was faulty.
The Coalition reforms are going to exacerbate this problem in two ways:
1) They increase the amount of costs that can be ordered and will make “costs” more pervasive in the system – the last 12 months has seen more EAT decisions on costs than probably the past 5 years altogether – and no doubt this picture will get worse. Undoubtedly, this will put a financial pressure on unions, as the funder of litigation, to settle good cases at an under-value.
2) The amount at which fees have been set is, from the unions’ perspective, punitively high. Per case they make Tribunals roughly 3-4 times more expensive than the county courts; and they put the sole burden of paying the fees on one side – the Claimant.
A friend reports a conversation with the head of the legal department at a medium-size white-collar union. The union has a budget, to cover its solicitors’ salaries and any other litigation costs, of around £100k per year. On the volume of claims they presently issue (the large majority of which they then settle, quickly): every penny of their present legal budget would be taken up by the hearing fees, not leaving a single penny for retaining an in-house solicitor, or doing any work on the cases once they had been issued.
What will that union do? Stop offering Tribunal representation? Or cut its non-legal budget by more than 10% to make good the shortfall?
There are going to be some very painful discussions taking place in the next few months and years.
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Tuesday 15th May 2012 at 5:30am
When workers sue their own union (round two)
One of the downsides of the trend towards individual litigation rather than collective action, is that it makes unions liable for all sorts of claims – including claims by members who have been refused representation, and claims by members or indeed non-members that the decisions of the union discriminated against them. A recent decision of the Employment Appeal Tribunal, and the last decision of Mr Justice Underhill as President of the EAT, can be understood as “round two” of the equal pay cases brought by Stefan Cross solicitors against the GMB and Unison.
The context is, in brief: during the middle years of the last decade, a number of niche equal pay firms emerged, specialising in claims by workers against local authorities and hospitals. The solicitors were much criticised by trade unions, who argued that they flourished in sectors characterised by high union density (i.e. where pay structures were relatively visible, in contrast, say to banking or finance), and relative pay equality (again, compared to banking), but low resource, i.e. unions insisted that they had negotiated deals in the round, accepting residual inequality, on the basis that this was the best that the employers would offer. For their part, the solicitors criticised the unions, accusing them of signed off pay agreements which discriminated against women.
Inevitably, as tensions rose between the solicitors and the unions, the solicitors shifted tack, and began to sue both the employers and unions for pay inequality – culminating in a decision of the Court of Appeal in 2008 that claims against unions for sex discrimination might be made out (Allen and others v GMB [2008] EWCA Civ 810).
I won’t summarise the facts of Allen here, as they are set out in detail at length in my book, save only to note that the union ran a defence that the employer, and not it, should be blamed for pay inequality. And, in circumstances where the union’s conduct was less than wholly blameless, this defence failed spectacularly.
This takes us to round two: in a case where a worker sues an employer for a policy which arises from a collective agreement, but the worker does not sue the union (which might be for many reasons: union loyalty, a practical sense of the union’s limited resources, or because the member can see that the employer and not the union was the party primarily responsible for the discrimination), or withdraws their claim against the union, can the employer add the union regardless, seeking a contribution from them?
In Brennan & Ors v Sunderland City Council & Ors [2011] UKEAT 0286/11, an equal pay case which the claimants had initially brought both against the employer and the union, and the union had settled, Mr Justice Underhill held that there is no power in the employment statutes for a Respondent to bring a contribution claim.
I can’t do justice to Underhill’s reasoning, which is both wide ranging and concise, but (in its purest essence) he rejected the employer’s arguments i) that the power was implied in the employment statutes or the Civil Liability (Contribution) Act 1978, and that ii) if it was not in the employment statutes, cases of this sort could be brought in any event as satellite litigation in the civil courts system.
Underhill noted that if the case had been determined differently, this could have dramatic consequences for a very wide range of employment cases – not just equal pay claims, or employer-union disputes, but also sorts of cases where an employer sought to pass liability to an employee, a third-party contractor, etc etc.
This was very clearly a high stakes battle (3 QCs and 4 other barristers were engaged by various parties); I doubt the employer’s will take even Underhill’s elegantly-worded “No” for a final answer.
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Monday 14th May 2012 at 6:00am
A Second-Rate Justice
David Renton, Struck Out: Why Employment Tribunals Fail Workers and What Can be Done
Pluto Press, 200pp, £19.99, ISBN 9780745332550
reviewed by Simon Behrman
Since the economic crisis hit in 2007 unemployment in the UK has risen by over a million. This has been accompanied by the coalition government’s threat to further deregulate employment law so as to make it easier to fire workers. Now, more than ever, workers are in need of every bit of protection available to them. For most people this includes the right of access to Employment Tribunals, which have the power to hold employers to account for unfair dismissals, discrimination at work and other workplace disputes.
At first blush it would appear that Tribunals are an effective means by which workers can achieve redress. Some 60% of all claims that get a full hearing are successful. But as David Renton explains in great detail in his latest book, this headline figure is seriously misleading. While claims for unpaid wages have a high chance of success, claims against the far more pernicious and common problem of discrimination are successful in but a small minority of cases. We read testimony from workers describing the trauma of the Tribunal process in which complex legal requirements and a culture loaded in favour of the employer often makes the claimant feel ill at ease. The length of time it takes for claims to be heard, and the often prohibitive cost of pursuing them compounds the feeling, as one claimant describes it, that workers are ‘fighting both the defendants and the Tribunal’. Moreover, only in the rarest of cases do workers actually get their job back. At best, they may recover some damages to offset loss of earnings and their legal costs. The many occasions on which Renton allows the voice of workers who have directly experienced the Tribunal process to be heard are valuable as well as moving.
Renton does more than simply expose the dead end that Employment Tribunals offer for claimants. First, he goes into great detail explaining the genesis of the Tribunal system and how they operate. This is then followed in turn by examinations of the failure of Tribunals to adequately address issues of agency workers, equal pay and racial discrimination. What we have here is both an excellent analysis of Employment Tribunals, and a guide for workers on the vagaries of the process. Renton is able to pick apart how the system works, and the complex law that governs it without either lapsing into unexplained obscure jargon or being boring. This is no mean feat in what is, in part at least, a legal handbook. Renton’s achievement in this respect is all the more impressive given that he is actually a lawyer specializing in employment law. This is not meant as a cheap shot at lawyers; rather it is an acknowledgement that when one is caught up in the legal system day-to-day it becomes extremely difficult to extricate oneself from its habits and language. It is for this reason that handbooks on law, even when they are addressed to the layperson, often remain obscure or just simply unreadable. Academic lawyers, on the other hand, are usually able to offer much more interesting and critical approaches to various areas of the law. Yet their grasp on the realities of what it is like to actually experience the legal process is often shaky. This has led to a schism in legal literature between the practicing lawyers and their ivory tower counterparts, each failing to learn from the other. One of the real strengths of this book is that Renton is able to straddle both approaches to law, offering a guide based on practical experience of Employment Tribunals, while maintaining a historical and critical approach throughout.
While Renton concludes his book with ideas for how the Tribunal system could be reformed to achieve a more just results for workers his critique of Employment Tribunals is not merely that they operate with certain procedural imbalances, which could be remedied in this or that way. He demonstrates convincingly that the Tribunals were created specifically to undercut the role of collective bargaining and wildcat strikes in challenging inequalities and victimisations at work, a major factor of industrial relations in the 1950s and 1960s. The key figure in this respect was Otto Kahn-Freund, an eminent employment lawyer of the mid-20th century. An irony here, which Renton however fails to mention, is that Kahn-Freund had earlier argued for what was known as ‘collective laissez-faire’, the argument that the state should not have a role in industrial disputes, leaving the right of workers to self-organise as the necessary counterbalance to the power of the employer. Kahn-Freund characterized this approach as ‘the retreat of the law from industrial relations and of industrial relations from the law’. Instead, as Renton shows, the development of Employment Tribunals has led to the increased juridification of industrial relations to the detriment of workers.
One reason that Renton identifies for why the intervention of the law in industrial relations has had such a negative impact has to do with the way in which the law forces all claims to be made on an individual basis. This has the effect of isolating the worker in the face of the overweening power of the employer, a point made by Kahn-Freund in his theory of ‘collective laissez-faire’. This then leads to the tendency for less emphasis on collective bargaining in the workplace in favour of individual lawsuits. But Renton is careful not to fall into what would be an empiricist trap of seeing the decline of union power as a function of the rise of the increased juridification of industrial relations. This assumes too great an influence of legal ideology, but equally a failure to understand why workers would turn away from collective bargaining in the first place, given its evident benefits for them during the post-war period. Renton is clear that it was the severe defeats in the industrial sphere culminating in the Miners’ Strike of 1984-5 that transformed the balance of power between employers and unions. The point is that with these defeats over the last 30 years workers have increasingly seen a viable route to workplace justice through the Tribunal system, rather than through the union activity.
So while it is not the case that Employment Tribunals are responsible per se for the weakening of the ability of employees to fight discrimination and unfair dismissal at work, equally the increasing turn to Tribunals as a method for seeking workplace justice is erroneous at best, and regressive and demoralising at worst. The solution, as Renton argues, would be for ‘workers and unions to take these conflicts out of the legal sphere and to return them to the sphere of collective bargaining’. It is certainly refreshing to read a lawyer so lacking in preciousness about the role of his own profession.
I do, however, have one serious disagreement with Renton’s analysis, which I think has the potential to undermine his own argument against the juridification of industrial relations. He devotes a chapter to arguing that the common law tradition is particularly egregious in relation to workplace justice. The reasons he offers are that the common law privileges property rights, and hence is biased towards employers, that it places too much power in the hands of judges whose social and class background often renders them hostile to workers, and through the principle of judicial precedent enshrines decisions often dating back to a far more conservative period. The implication, although Renton nowhere spells this out, is that a better alternative would be a turn to the civil law tradition, which prevails in most European countries and is an important ingredient within the US legal system.
I am not convinced that these legal systems are any more inherently just than the common law. It is certainly not the case that they are less biased towards property rights. Indeed, most of them have such rights enshrined in their constitutions or civil code, which is not the case in English law. Moreover, one of the benefits of the common law system is its malleability. This means, as Renton points out, that the judiciary are often given space to make law based on little more than their own prejudices. Nevertheless, the idea that investigating magistrates in France or Spain are significantly less able to exercise their own biases cannot be sustained. On the other hand, the relative flexibility of the common law allows pressure more easily to be brought to bear from outside the law to achieve change, a process that is often much harder in countries where altering the constitution or the civil code is a laborious and lengthy process. It is at least arguable, therefore, that the common law offers a far less juridified set-up than that of civil law. While I hold no brief for the common law, the argument that rights enshrined in a constitution in themselves offer greater equality is a liberal fiction that in practice serves only to obscure the existing gross inequalities that exist in society.
However, notwithstanding my disagreement over this last point, I think that this book is a valuable guide to any worker, and especially to trade union activists on the realities of challenging attacks by employers. It is also a necessary corrective to the idea that the route to justice in the workplace runs through the courts rather than through workers’ own collective activity.
[this review was first published on the Review 31]
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Friday 11th May 2012 at 11:00am
Fixed-term employees: a good decision of the EAT
Trade unionists were delighted when the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 first came into effect. The Regulations enable an employee to seek a declaration from the Tribunal that they are permanently employed, where the employee has been continuously employed for four years or more, and the employer extends their contract (even though the renewal was ostensibly only for a fixed term).
This is a very significant power, of particular significance to workers such as college and university lecturers, where there is a dramatic difference between the pay (both absolutely, and per unit of teaching delivered) of fixed-term and permanent staff, and fixed-term contracts are used to limit entitlement to unfair dismissal, and reduce pay generally.
But, there have been relatively few cases brought by fixed-term employees, and those there have been have not ended happily.
In this context, it is good to report the decision of Jan Luba QC, sitting as a Recorder in the Employment Appeal Tribunal, in Hudson v The Department For Work And Pensions, that an employee can invoke the four-year rule even if they originally entered the business as a trainee or via a work experience scheme.
The claimant was employed via a civil service scheme (in the claimant’s terms a “portal”) akin to the New Deal. Her evidence was that she was provided with no special training, but from day 1 was engaged in identical conditions to an ordinary employee. The ET had found, as a matter of fact, that the scheme was a hybrid of training and employment, and Recorder Luba did not allow an appeal of these findings.
From the employer’s perspective, it was argued that the four years should not start until a person was unambiguously an employee. Any previous service was like a broken link in a chain: it did not qualify for getting the employee to the four-year starting point.
In a careful, nuanced judgment, which turned on the precise words of the Regulations, Recorder Luba went on to find that although a person who was presently employed as a trainee, etc, could not invoke the Regulations, there was nothing in the Regulations excluding a former trainee from invoking the four-year rule, even where some of their four years had been on work experience.
Permission was granted to appeal the decision to the Court of Appeal.
Assuming that the appeal fails and that this decision is upheld, this is good news for trainee solicitors, and those employed after being engaged via work experience schemes.
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Friday 11th May 2012 at 5:00am
A correction
I have been very fairly asked by the British Chambers of Commerce (BCC) to publish a correction to my post Trials and Tribulations (which has also been published by the New Law Journal ). In my original post, I wrote that
The ground for these “reforms” has been prepared by a press campaign to the effect that most employment tribunal claims are dubious, weak or vexatious, that the average cost to an employer of defending a tribunal claim is £125,000 per claim (British Chambers of Commerce (BCC)), and that seen as a whole the tribunal system is as bleak as “Dante’s vision of the inferno” (the Financial Times).
BCC have pointed out that, however their research document may or may not have been subsequently used, the authors of their report disassociated their organisation from this estimate of £125,000 per claim and indicated that it might not be representative of industry as a whole.
Accordingly, I’ve attached the block of text in which the estimate first appeared:
The central problem this report seeks to address is the difficulty posed to SMEs by the volume and complexity of employment legislation. A corollary of this is that businesses now need professional legal advice if there is a dispute which could end with an Employment Tribunal claim. The reality is that in many cases it will be cheaper to settle with the employee and prevent reputational damage rather than defend the claim. At the extreme end, a FTSE 100 company estimates that each Tribunal claim, won or lost, costs £125,000 to defend in terms of legal costs and management time9. A medium sized business member in the West Midlands estimated that every claim brought costs them £15,000 to deal with. Some charities have reported that they feel obliged to settle many cases, if they know that the amount claimed is likely to be less than the cost of defence. As they are funded through charitable donations, and have to account for how those donations are spent, it is very important that they are seen to take the most cost-effective option [emphasis added by me – DR]
The full report can be read here.
I am grateful to BCC for pointing this out to me.
