Thursday 18th April 2013 at 12:47pm
Employment rights in crisis – a message from the author
This year, the coalition government is launching the most dramatic changes to employment law since unfair dismissal was introduced in 1971. The coalition’s reforms have already included from this April reducing the amount of time employers need to consult on collective redundancies, removing of legal aid for all employment cases except discrimination and trafficking, and adding new requirements for whistleblowing claims. Further reforms are planned, including capping the amount an employee can be awarded for lost earnings in an unfair dismissal case at one year’s salary (or the national average if they earn more than that), changes to dismissal procedures to disable a tribunal from enquiring about certain conversations between employer and employee in the run-up to dismissal, a new set of employment tribunal rules and – most controversially – the plan to charge workers fees to have their case heard by an employment tribunal, which will come into effect this summer.
Were any of these changes necessary? My book Struck Out considers the ‘old’ tribunal system from a perspective of industrial justice, addressing Claimants’ success rates at full hearings (surprisingly high) and their awards following success (unjustifiably low). It explains the problems of litigation in terms of over-complication of the law, unpredictability of outcome, and injustice of compensation. It shows how these problems originated in the policy decisions of the Donovan Commission, and in an incomplete break after 1971 from the contractual reliance of the common law. It shows, in effect, that a fair Tribunal system would require something like the exact opposite reform project to the one which the government is now implementing.
For further action and advice visit:
Campaign for Trade Union Freedom
TUC – how to join a union
Free Employment Unit (free representation for Claimants in ET claims)
You can buy Struck Out with a 30% DISCOUNT and FREE UK P&P by entering the code ‘PLUSTRUCK’ here.
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Wednesday 5th September 2012 at 9:51am
Speaking to Struck Out
Here is a link to a talk I gave this summer with Dave Smith of the Blacklist Support Group, on “Struck Out”. There is a £1 fee to download the podcast, but it gives you a flavour of the book.
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Wednesday 25th July 2012 at 6:00am
Can’t afford Struck Out?
As eagle-eyed readers of this blog will have spotted, a large part of its point is to (gently) encourage readers to order copies of my book Struck Out, which is available from various publishers in a surprisingly neat inverse relationship to the ethical content of the publishing business.
In the superbly pro-union Bookmarks, Struck Out can be ordered for an admittedly steep £19.99.
The publishers Pluto are offering the book for £17.50 (see link at the top right-hand corner of the page).
The anti-union capitalist megabusiness Amazon are selling a kindle version for just £13.67.
But while Amazon is (sadly) the cheapest option if you’re looking to buy the book, I’m happy to report that Bookmarks (here’s the link again are also offering for just £3, a CD of my talk with Dave Smith at this year’s Marxism festival, which conveys a decent chunk (although not all) of the book’s message as well as some lively contributions including from one or two widely-celebrated tribunal claimants who were in the room.
If you’re interested, just send Bookmarks an email.
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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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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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Monday 23rd April 2012 at 6:00am
Employing new tactics to undermine rights at work
[From Islington Tribune, 20 April 2012]
With more people facing the sack, a barrister claims staff will find it increasingly difficult – and expensive – to claim unfair dismissal writes Peter Gruner.
Things may be bad on the jobs front, but they are about to get a whole lot worse, according to employment barrister David Renton.
Renton, a leading figure in the anti-cuts campaign in Islington, warns in his new book that the coalition government is planning to make it more difficult for aggrieved workers to get a hearing at an employment tribunal.
Those who want to go to a tribunal will for the first time be charged between £800 and £1500 – and that’s before they fork out for a lawyer, as they are not entitled to Legal Aid.
Ironically, it was the Tories who first introcyded the employment tribunal under Edward Heath, as part of the much criticised Industrial Relations Act.
Renton’s book is entitled Struck Out: Why Employment Tribunals Fail Workers and What Can Be Done. He practises at Garden Court Chambers, Lincoln Inn’s Fields.
He said: “Tribunals are meant to provide workers who feel they have been unfairly treated by their employers with an opportunity to seek justice.”
“But these new fees will deter many cash-strapped workers who can’t afford to apply. Twice as many people are being sacked as five years ago, according to the Office of National Statistics.”
Renton slams the Coalition’s so-called reforms saying: “They will not improve access to justice and will simply reduce the rights of vulnerable workers.”
The changes to the system are beingurged by those who claim that tribunals are dubious, weak or vexatious, and that the average cost to an employer of defending a tribunal claim is £125,000 per claim. But 60 per cent of tribunal cases that made it to a hearing in 2010-2011 succeeded.
Renton said, “The figure of £125,000 per claim was the guess of a single personnel manager in one large company. The average awards for dismissal and discrimination claims are actually just £4,500 and £7,000.
“Of the 40,000-plus unfair dismissal claims before a tribunal in 2010-11, only eight concliuded with orders reinstating or re-engaging the claimant.”
The level of tribunal awards if “appallingly” low, says Renton.
“The average wage in the UK is around £24,000; most claims take a year to be heard, and mst claimants are unemployed through the whole of the year”, he said.
“But the median award for unfair dismissal was just £4,591 in 2010-2011.”
This compensation gap is the product, Renton says, of “old-fashioned rules on compensation, which are intended to make sure that workers leave the system significantly out of pocket.”
Much needs to bchanged, Renton says but the proposed reforms are going “exactly the wrong way about it.”
This book has much support. Profesor Simon Deakin of the University of Cambridge, who is the editor of the Industrial Law Journal says: “it will be essential reading for its empirically grounded and dispassionate analysis of what has gone wrong and how it might be put right.”
And according to Professor Linda Clarke of the University of Westminster: “David Renton’s new book is very approachable and readable. It opens up employment law to students and employees alike.”
Renton has appeared in some of the most high-profile employment cases of recent years.
[Many thanks to Peter Gruner for the piece, which was based on a telephone interview with me. Eagle-eyed readers will of course have spotted that workers with tribunal cases are currently entitled to legal help, albeit not representation. That right is being constrained, but not abolished, by LASPO].
