Wednesday 10th October 2012 at 12:29pm
Struck Out reviewed
In this new book developed from his earlier article in International Socialism socialist barrister David Renton examines the disparity between the ambitions of workers who bring tribunal claims and the outcomes they are likely to receive. “Where the law creates problems”, he argues, “the answers are outside the law.”
One of the biggest failures of the tribunal system is the failure to reinstate unfairly dismissed workers. Of over 40,000 unfair dismissal claims in 2010-1, only eight resulted in orders for reinstatement.
Where compensation is awarded, arbitrary statutory caps mean claimants are often awarded significantly lower payments than their actual calculated loss. One claimant says: “I became financially in debt because I wasn’t able to meet my regular domestic bills… I’m still trying to catch up on bills and things that got left. I’m trying to clear up this mess. The £3,000 was like a month’s wages; it went back against the bills. It wasn’t luxury money. Financially, I’m still struggling.”
On top of statutory caps, employment judges tend to over-use their powers to reduce compensatory awards as a result of “deep lying anxieties that a tribunal system which was more generous to claimants would upset the proper relationship between workers and employers in the workplace”.
Employment judges are overwhelmingly male, middle-aged, white, educated at public school and Oxbridge. Renton argues that this “encourages a general approach of deference towards existing property rights and towards the rights of both professionals and managers”.
These judges often have to decide whether an employer acted reasonably. As Renton points out, “tests of reasonableness leave judges a wide discretion to decide the law according to notions of what seems right to them in a given case”. Toby Topham of the Institute for Workers’ Control anticipated in 1971: “An employer can, by reason of his status…always find reasons for a dismissal which a bourgeois court will accept as reasonable…in crucial cases, where legal protection may be needed by victimised workers, the tribunals would prove quite inadequate.”
Policy makers, by establishing Employment Tribunals and making dismissals “a legal question rather than a trial of industrial strength” sought to reduce strikes and weaken unions. However, Renton argues against the conclusion that the increasing number of tribunal claims since 1971 explains the falling number of strikes. He shows the major causes of strikes in the 1960s—wages and hours—continue to be resolved by industrial action rather than litigation.
More important in explaining the fall in strikes “are the legacy of the unions’ setbacks in the battles of the 1980s, the anti-union laws adopted in the same period, and the failure of such union victories as there have been in recent years to give such confidence to the workers as to transform the mood in the workplace”.
Rather, he argues, tribunals have filled a space left by the partial decline in industrial bargaining, “so that someone who has a genuine grievance about their work increasingly has no option but to sue”.
Although Renton suggests some legislative and procedural reforms that would improve the tribunal system for workers, he concludes: “Real reform must mean taking decisions out of the hands of judges and putting them back into the context of workplace bargaining.”
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Friday 20th July 2012 at 6:00am
You can’t start a fire without a spark
Struck Out: Why Employment Tribunals Fail Workers and What Can Be Done by David Renton
Pluto Press, £19.99
Reviewed by Phil Chamberlain, Tribune magazine
Sunday, July 15th, 2012
If defenders of the industrial tribunal system want to blame someone for letting David Renton comprehensively demolish its myths – and procedures – they should look to Gordon Brown.
Five years ago, the then Chancellor gave a speech which described the system as out of control. As a result, he basked in the praise of the right-wing press. But it infuriated Renton, a barrister at Garden Court Chambers, who saw what he describes as a piece of political opportunism allow the press to print a distorted picture ever since. Struck Out is his attempt to set the record straight.
As well as practical knowledge of the inner workings of the tribunal system, Renton also has the advantage of an acute political sense and a historian’s training for sifting evidence and making an argument. His book is not a dry legal text but a thoughtful analysis of what remains a worker’s key legal avenue of redress. Using testimony and official documents, he offers a succinct history of the system and its current operation, explains its key decisions, and punctures the myths around it.
He highlights how the wording of legislation has a significant impact on the ability of workers to bring successful cases – and even to be allowed to make a case in the first place. There’s a forensic analysis of how key decisions have weighed the scales in favour of employers.
While readers of Tribune will be aware of the political background to the shaping of employment law, Renton makes the connections to show the evolution of the tribunal system. He charts how it helped to mollify industrial relations, acting as a safety valve for worker discontent. There is a good mix of personal testimony, case law and statistics backed by careful footnotes – a welcome antidote to the hysteria of much employment tribunal reporting. But this is more than a route map of how we arrived at the present system. Government changes offer a serious challenge to those on the left about how it should operate.
Unions have, largely, bought into the system even as it has increasingly failed to deliver fair recompense for those who have been wronged. Renton ends with a series of proposals and questions. His book has the explicit aim of starting a debate among those who want the scales of justice tilted back in favour of workers.
Renton has already published a number of books and writes widely on a diverse number of topics.
His engaging style makes for an accessible book which should spark a vital debate among all those who care about employment rights.
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Saturday 7th July 2012 at 5:35am
No law degree required
Struck out reviewd by Ian Bradley
Socialist Review, July 2012
With news recently that the Tories plan to make it easier to sack workers and shake up employment tribunals we are faced with a dilemma – is the legal route still the best route for an employee to settle a grievance with their employer or is there an alternative?
At first glance, and especially when we are told that 60 percent of employment claims are successful, it seems tribunals are still an effective way for workers to seek some form of justice. We are regularly bombarded with sensational newspaper headlines outlining the “massive” compensation payouts that workers can sometimes receive.
But in Struck Out, David Renton explains why from the establishment of the Industrial Training Act in 1964 (which intentionally sought to reduce the number of strikes) to the present day the odds are stacked against workers. He does this all in a way that doesn’t require a law degree to understand!
Using past cases, court documents and testimonies from people who have been through the whole tribunal process, he breaks it down from the first stage of filling in an ET1 form, through to the usually highly inadequate compensation. Such an outcome often leaves workers feeling defeated even when they win their cases.
The book is packed full of testimonies from people left feeling that the courts were biased in favour of their employer. But, as Renton argues, the “common law” tradition of the British courts further complicates this whole ordeal.
The author has experience both as an employment barrister and as a trade unionist which gives him a unique insight. This is what makes the book such a refreshing read. He clearly shows that the development of employment tribunals has led to over complicated industrial relations. Although he makes suggestions for reforms that would make for a fairer system, he also argues that most disputes would be better settled in the workplace with a stronger trade union presence.
The defeats of the early 1980s within the trade union movement has seen unions take a step back from collective bargaining, and moved them into an over reliance on the court system to settle disputes. With the legal budgets of trade unions already overstretched to breaking point, and with the increases due in court fees, it leaves them with difficult choices about what to do in the future.
This book serves as a fantastic guide to workers and will hopefully open up a debate within the trade union movement about the best way to spend their resources. All this contributes to better workplace organisation and collective bargaining, and only with that will we finally see a fairer and a more just way for victimised workers to get justice.
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Monday 2nd July 2012 at 3:38pm
“A poor last resort”: Struck Out reviewed in Socialist Lawyer
Struck out reviewed by Russell Fraser
Socialist Lawyer, July 2012
When the Coalition heralded its Protection of Freedoms Bill we were not to know that the liberties it sought to guarantee were those of Government departments to withhold evidence in court and employers who sough to discard workers arbitrarily.
To that end, David Renton’s book is timely. Its strength is derived from the volume of statistics and cases it relies upon in casting its central claims. This provides a delicious contrast to the Government’s own Beecroft Report on employment law which even the fallen angel Vince Cable deemed to be a collection of “one man’s anecdotes”.
The work is a pleasing mix of legal exposition, historical analysis and sociological discussion. Renton charts the development of the tribunal from the recommendations in the 1968 Donovan Report, through the report’s implementation in the form of the Industrial Relations Act 1971 to the present day. It is, in the author’s words, intended as a policy statement, rather than a practical guide.
Renton vividly illustrates the friction between strengthening workers’ rights through collective bargaining and individual victories which reward the claimant, usually inadequately, but leave the workforce worse off. In many respects the increased resort of the employment tribunal has not advanced the worker’s cause: equal pay claims which damage unions but compensate small groups of workers; victims of racism whose claims are viewed sceptically by courts edded to orthdox notions of how witnesses “should” behave; and the subversion by judges of legal tests which supplant objective with subjective standards of reasonableness.
Renton concludes by emphasising that collective bargaining has acheived the historical gains made in favour of workers and not the law. He does however offer three straightforwardly acheivable reforms to the system: the elevation of reinstatement to the primary remedy in unfair dismissal cases; the reconstitution of panels comprising four lay members which would decided by consensus on cases’ merits; and simplifying the instances in which tribunals can reduce awards so as to ensure that a successful claimant is left closer to the position she would have been in had she not been dismissed.
However, while successive governments and business leaders continue to peddle the lie that employment regulations in the UK are too onerous, it will be some time before these types of changes are seen.
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Friday 22nd June 2012 at 6:00am
Struck Out reviewed in NLJ
Author: David Renton
Publisher: Pluto Press (8 Mar 2012)
ISBN: 9780745332550 Price: £19.99
Reform of the tribunal system has never been more topical, and practitioners are acutely aware of the frustrations their clients frequently feel at all stages of the litigation process.
As its name indicates the book takes an unashamedly claimant-focused assessment of the employment justice system in England and Wales, starting with the foundation of tribunals, progressing through specific topics such as equal pay and agency workers, and, after a nod towards human rights law, and the unions, ends with a suggested handful of reforms.
A troublesome adolescent
Perhaps unconsciously, the author hits upon what appears to be the real issue in the next decade: what does the tribunal service want to be? As with any troublesome adolescent the answer is not clear. Does it want to be a court with all the formality and technicality that goes with it (the size of the Employment Law Handbook supports this line of development) or does the tribunal retain its informal roots and easy-access, costs-free ethos? The author proposes reform by way of compensation increases coupled with formality decreases. This rides two horses. One can see the validity in a claim that compensation could be increased for unfairly dismissed employees due to the arbitrary cap on the basic and compensatory award, though the other side of this coin is protection for employers by limiting total liability. However, his calls for removing the “just and equitable” touchstone and to apply contributory fault and failure to mitigate reductions only as alternatives to each other misunderstands the basis of quasi-contractual compensation in the tribunal system.
Deformalisation
Further, Mr Renton’s desire for deformalisation of the system in order to return it to its roots seem at odds with the justification for increasing compensation or more orders for re-employment (be it reinstatement or re-engagement). His proposals for the removal of employment judges and their replacement by a legally qualified clerk are also bound to be controversial and potentially expensive: the tribunal would be increased to four members all of whom are lay, but take their advice from the clerk in a manner akin to a magistrates court. This supports the general theme running through the book; employment tribunals have become too “juridified” and disputes were better resolved through collective bargaining and workplace dispute resolution procedures. This may be, but times have changed and are not likely to change back.
The author, we suspect, is in part deliberately provocative in his reasoning; he does not want his book to be seen as containing all the answers to the problems he identifies, but rather to encourage the debate. While his examples are necessarily extreme ones taken from the claimant’s point of view many of the failings in the system identified by him are equally troublesome for respondents.
To that end the book is an enlightening and stimulating read, and being pocket size is easy to carry around, for those long days sitting at tribunal waiting for your floating case management discussion to get called on…
Review by: Chris Bryden, 4 KBW & Michael Salter, Ely Place Chambers
New Law Journal, 15 June 2012
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Wednesday 6th June 2012 at 6:00am
As recommended by Bookmarks bookshop
This week’s top five books, as chosen by Bookmarks, the socialist Bookshop
1 Struck Out by David Renton
2 When the Clyde Ran Red by Maggie Craig
3 Public Services on the Brink, edited by Jenny Manson
4 London Recruits: The Secret War Against Apartheid, edited by Ken Keable
5 In Praise of Love by Alain Badiou
(Originally published here, 2 June 2012)
A bit OTT, but much appreciated all the same!
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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 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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Thursday 10th May 2012 at 6:00am
Trade unions and workplace justice
by Dave Smith, blacklisted former construction worker
Struck Out
by David Renton
Pluto Press, £17.50
Anyone who’s been a trade unionist as long as I have will have lost count of the speeches they’ve heard haranguing “out of touch” judges.
They will be familiar with condemnations of employment laws passed “by the ruling class to protect the ruling class”.
But at the same time we quote breaches of regulations as if the law could save us from redundancies or discrimination.
Media myths encourage inflated expectations that courts will deliver justice, or at least considerable financial compensation.
The truth is that in most cases they won’t. And David Renton explains why.
He provides a history and a withering critique of the employment tribunal system, using official documents and experiences from real life cases.
He goes through every step of the process—from filling in the first “ET1” form to the miniscule compensation awarded to successful claimants.
Renton shows why the system repeatedly fails to deliver satisfactory outcomes.
Whether it’s unfair dismissal or discrimination claims, this book explains how the system is stacked against workers even when there is clear evidence of wrongdoing.
It was written before the recent changes to the tribunal system. These changes will only make things worse.
Renton has experience both as a lawyer and in the trade union movement.
This gives him the opportunity to see the system from two distinct points of view. It is what makes the book so insightful and so useful.
Employment rights are best defended by building strong trade union organisation, using mobilisation in the workplace and collective bargaining to protect workers’ interests.
Struck Out comes as a much-needed polemic against an overreliance on employment tribunals to deliver justice for workers.
At a time when trade union finances are being stretched, let’s hope the book provokes a debate about where resources should be targeted.
(published in Socialist Worker, 12 May 2012)
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Friday 27th April 2012 at 6:00am
Barrister warns more of strikes on the horizon as workers failed by tribunals
[from the Union News website]
by Phil Chamberlain
Barrister and author David Renton speaking at Blacklist Support Group meeting. Pic by Phil Chamberlain
A new book by a leading employment barrister calls for debate in the trade union movement about the role of employment tribunals as government changes are expected to make it even tougher for workers to win cases.
David Renton, from Garden Court Chambers, predicts increased industrial action as an already flawed system provides even fewer workers with a place to settle grievances.
Renton was inspired to write Struck Out five years ago, following a speech by Gordon Brown where the then chancellor characterised the system as out of control. Renton says this “rank opportunism”, based on a false premise, has allowed the press to print a distorted picture ever since.
Using testimony and official documents the book gives a succinct history of the tribunal system and its current operation. Renton explains its key decisions and punctures the myths around it. In it, and on the accompanying blog, he also charts the impact government changes will have.
“It will be nice to think that workers will think ‘we are still suffering injustice but we can’t initiate claims so we will do what we say in the book; we will go back and strengthen our unions and where appropriate we will take industrial action’, which I very much see as an alternative to the tribunals. But you also need to be realistic. The government’s calculation is that the unions are weakened and so people aren’t going to properly resist these reforms.”
Renton believes that unions have for too long taken up a default position of defending tribunals – because no-one else does – when often they don’t serve worker interests.
“I want there to be a policy discussion and a lively debate going on within the trade union movement,” he says. “Trade unionists may disagree with parts of the book, but I want people talking and arguing and emerging with a different vision about how things might be. If we don’t have that, the press will come up with these lies and there is no alternative vision and the system will get successively reworked in a direction that is hostile to trade unionism.”
* Struck Out: Why employment tribunals fail workers and what can be done is published by Pluto Press
