A new Government – where to, employment law?

Whilst we await further announcements, our David Sorensen has reviewed the Conservative manifesto and other policy documents to work out the 6 steps most likely to be taken by the new Government in employment law:

1. Scrap the Human Rights Act and replace it with a British Bill of Rights – this will inevitably affect e.g. the way in which Employment Tribunals conduct themselves and the sort of arguments about privacy in email use/social media/misconduct cases in the unfair dismissal context.

2. Restrict strike laws further – bringing in a minimum turnout for industrial action of 40% of the workers entitled to vote within certain sectors (fire, transport, health and education), criminalisation of certain types of picketing, an extension in the length of a union’s required notice of industrial action from 7 to 14 days, a reduction in the ‘life span’ of industrial action ballots so as to require regular fresh ballots to be called, allowing employers to use agency workers to provide cover during a strike etc. All of these steps will inevitably make it even harder for unions to support workers who strike and increase the (already enormous) red tape unions face in these cases.

3. Restrict trade unions in other ways – increasing the regulation of union members’ subscriptions, reducing union representatives’ facility time in the workplace, reforming the Certification Officer’s role etc.

4. Keep ET fees – despite the evident unfairness (e.g. Vince Cable said just before the election “there is enough evidence to suggest that this was a very bad move and should be reversed. It is highly suggestive that the fees are discouraging people - particularly low paid women - from pursuing their rights”) it seems that, subject to any adverse Court of Appeal ruling in the ongoing Unison judicial review, ET fees may now be here to stay.

5. Pull out of the EU? The big question – if so, what happens to all the EU-sourced legislation such as the anti-discrimination laws, Equal Pay, TUPE, Collective redundancy consultation? Does it stay or also have to go?

6. There are some potentially positive measures (assuming they are implemented fairly and appropriately) – the ‘tackling’ of illegal working; the ‘encouragement’ of businesses to pay the ‘Living Wage’; a tax-free minimum wage by increasing a worker’s tax free personal allowance to £12,500; 3 days’ paid volunteers’ leave for employees in businesses with 250 employees or more or those employed throughout the public sector.

The direction of travel is clearly going to be anti-union and anti-industrial action. Access to justice for workers and employees is not going to be a priority. There are bound to be more employment law changes coming as well – will they revive the previous Adrian Beecroft report? That recommended cuts to maternity rights, a reduction in TUPE protection for transferring employees, increases to ET fees (e.g. from the currently high £1,200 to the extreme £3,750) as well as the removal of unfair dismissal protection and replacement with ‘No Fault Dismissal’. Time will tell.

David Sorensen - Partner

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Cameron vs Ordinary Working People

Following the recent general strike by public sector workers, David Cameron pledges “to overhaul an archaic law" stating that strike laws are too easy for workers to rely upon and that “it is time to legislate and it will be in the Conservative manifesto” for the next election. It seem they propose to ban all ‘electronic picketing’ (the use of texts/emails by unions to gain support), make it a requirement for a 50% turnout for any strike ballot to be lawful (rather than a majority as used to elect MPs) and banning ‘rolling strikes’, bringing in a 3 month ‘shelf life’ for any strike action before a new ballot is needed.

So his policy is further changes to the same strike laws that the Court of Appeal described in 2012 as “highly complex legislation”, which can be seen as “a series of traps or hurdles” for a union to negotiate.

It’s clear that David Cameron simply wishes to make it harder and harder for workers to resort to strike action.

This from the leader of the same party whose leader some years ago described the right to strike as, in the language of the day, “the foundation of the liberties of the working man. In it are involved all those things which matter most in his workaday life…the right to demand improved conditions, shorter hours, higher wages; the right to defend himself against petty tyranny or ill-usage. The capitalist system on which our whole present civilisation is erected has grown up on the basis of the right to strike… the right to strike is the greatest glory of the capitalist system…”

Who was that? A certain Winston S. Churchill, admittedly not a politician who is often perceived as being a friend to the unions or to workers but a politician who seemed to have common sense and a sense of fairness.

David Sorensen - Partner
For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Right to strike?

I have written previously about the limited UK right to strike, and the political threat to change the voting threshold in ballots for industrial action.

Vince Cable now suggests that the Government will have to “get tough” on strike laws if the Union movement persists with the threat of widespread strikes in the Autumn.

We already have some of the most rigid anti-strike laws in the western world. 

And the reality is that in recent years the number of days lost to industry in industrial action has been at a decades-long low.  The Press love to report a good strike, but truth be told, there haven’t been many lately. 

The mere threat of an increase in industrial action seems to have set the hares running.  But what use are legal protections for strikers if, the moment serious action is threatened, the Government seeks to step in to prevent it happening?

I see no evidence of the Government taking a narrow view of the rights of individuals to protest in connection with the Arab Spring.  And whilst of course there are differences between those revolutionary protests abroad and industrial discontent at home, the bottom line has to be that what we can respect abroad we must respect at home; and if a right to protest is not a right effectively to protest, then it is no right at all. 

People do not naturally or quickly leap into industrial action.  They lose pay for every day they do not work, and in the long run they risk discipline and/or dismissal.  The veritable maze of booby traps that run as a thread through our anti-strike legislation have rendered it pretty difficult for Unions to organise industrial action at all.  If, notwithstanding the best efforts of the legislators, and the natural reluctance of workers to lose money, a strike is lawfully and properly organised, or indeed a series of strikes, the Government should be looking not at how to prevent that protest, but at the policies that have given rise to it.  

- Paul Scholey, Senior Partner, Morrish Solicitors LLP

The Right to Strike (2)

I previously wrote a piece about the right to strike here: - http://morrishsolicitors.blogspot.com/2009/12/right-to-strike.html

It seemed appropriate to look at it again now that Lord Adonis and Gordon Brown have commented on the BA dispute.

I cannot help but wonder - What does an employee do if his or her employer announces that all benefits that the employee enjoyed, and agreed to when they signed the contract of employment, will vanish or be cut dramatically? Add into this a clear refusal by the employer to discuss their intentions and/or try to reach a compromise.

If negotiations fail an employee has two choices – accept the poorer terms, or leave. People often, mistakenly, take the view that the employee can claim constructive dismissal in such circumstances. That is not easy and an employer can argue that “business needs” make the changes and therefore the dismissal fair. The individual who takes that step is left with no job, no income and is taking their chances against a Company that can afford to pay huge sums of money to its lawyers to defend such a claim. Hardly a level playing field.

There is no “my employer can’t do that” or “that’s just not fair” law. (Maybe if there was strike action would not need to be used.) Instead, the only remedy is collective action.

But, what if the employees’ actions damage the “brand” and they ultimately end up out of work? Well, those employees will move to the competitors who are paying the lower rate that they are resisting. What do they have to lose?

I remain baffled as to why the employees and the Union have been turned into the “bad guys” in the dispute with BA. These are not employees seeking improved pay and conditions but instead are trying to prevent unilateral changes being forced through by the Company.

For further information, please contact our Employment Rights department on 0113 2450733.

The Right to Strike

Much of the press at the moment is preoccupied with the strike threatened by British Airways Staff. It came as no surprise to hear the standard comment in such situations. “They should just be grateful they have a job”. I am sure they are. In fact given the current economic conditions I am sure all those people who are working are grateful that they are.

However, that does not mean that employees should therefore allow their employer to treat them how they wish. High unemployment should not equal – allow yourself to be treated like a disposable asset. Indeed, historically had employees simply thought “I should just be grateful I have a job” the vast majority of the working population would be working day in day out in highly dangerous conditions for a pittance.

The right to take strike action is a fundamental right. It is only by collective action that employees can try to prevent employers pushing through changes that not only adversely affect their working conditions; but also, more often than not, the service that they provide to the customer.

Striking employees and the Unions supporting them are all too often seen as the villains of the piece. Contrary to what many press articles would have us believe most union officers (certainly the ones I have met) would rather negotiate than strike. Calling a workforce out to strike is often the last resort.

As the Joint Secretaries of Unite the Union have said:-

“Christmas travel on British Airways is being held hostage by a macho management which prefers imposition and confrontation, or even litigation, to negotiation.”

The threat of strike action becomes necessary if your employer is not willing to listen to you. It also makes sense, in order to try and avoid that strike action, to hit an employer where it hurts. Namely, arrange your collective action to take place at the most inconvenient and/or costly time for them. The aim, ultimately, is to try and change an employer’s deeply entrenched position, not cause massive inconvenience to the population. We should offer support to our fellow workers and remember that one entity could call a swift end to the action – and that is British Airways.
For further information, please contact Jayne Phillips in our Employment Rights department on 0113 2450733.