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John
Hendy QC's Address to GMB Congress 6 June 2011
29 June 2011
President, Delegates:
I would like to thank you for inviting Professor Ewing and
I from the Institute of Employment Rights to address you.
We are very proud of the work IER has done with GMB and of
the support that the GMB has given to the IER over the years.
I want to speak to you
about the right to strike. But first, having heard Mr Cable
this morning I would like to say something about his government's
proposals to reduce workers' rights, a matter considered in
your composite motion 6. Mr Cable told you that these changes
were both necessary and proportionate but he did not explain
how he came to that conclusion. I will try to make his case
for him and you can judge whether these changes are necessary
and proportionate.
First let's remind ourselves
of just some of what the government is proposing on workers'
rights:
- Protection against
unfair dismissal: qualifying period extended from 1 year
to 2 years;
- Speedier procedures
to strike out claims;
- Fees to be payable
to lodge a claim;
- Greater power to order
claimants to pay deposits;
- Limit on costs awards
to be increased to £20,000;
- Wing members in employment
tribunals to be dispensed with in most cases;
- Compensation awards
in discrimination cases to be capped.
Let's look at the need
for just two of these changes. The latest tribunal statistics
were published in September 2010.
Unfair dismissal
The TUC estimates that extending the qualifying period by
one year will exclude 3 million workers from protection at
a stroke. No doubt Mr Cable argues that it is necessary and
proportionate that employers should have the right to sack
workers unfairly in not only their first but also their second
year of employment.
It goes without saying
that it is burdensome on employers to defend themselves against
claims. But is the present law really so unfair to employers?
Last year there were 50,900
unfair dismissal claims. Most were settled, withdrawn, dismissed
or struck out. But 10,900 proceeded to a hearing.
Most of those lost but
5,200 won. But for the workers who won, no award was made
in 2,200 cases (i.e. 42% of successful cases).
Compensation was ordered
in 2,900 cases. There were a few big awards and many small
ones. The median award was a mere £4,903!
The primary remedy for
unfair dismissal is reinstatement or re-engagement. Is this
where the disproportionate burden on employers is to be found?
Well, last year there were no less than 6, (yes, six!) reinstatement/re-engagement
orders made. That is 0.1153% of successful cases, i.e. a little
over one thousandth. Or, if you prefer, slightly more than
one ten thousandth of all unfair dismissal cases lodged.
To remove this miserable
level of protection from 3 million workers simply cannot be
regarded as proportionate.
And what of the proposal
to limit discrimination awards (which would be in breach of
EU law by the way). The media make much of awards for discrimination
cases running into hundreds of thousands of pounds. But let's
get the statistics into proportion. Last year there were:
- 150 successful sex
discrimination cases, for which the median award was £6,275;
- 73 successful disability
cases, median award: £8,553;
- 68 successful race
discrimination cases, median award: £5,392;
- 28 successful age discrimination
cases, median award: £5,868;
- 15 successful sexual
orientation discrimination cases, median award: £5,000;
and
- 7 successful religious
discrimination cases, median award: £5,000.
That means that out of
the 227,000 cases disposed of by the employment tribunals
last year, there were only 341 successful discrimination cases
with a median award of only a few thousand pounds. Where is
the justification for cutting the awards of those who have
been most seriously damaged by discrimination?
But I digress. I am here
to speak about the right to strike.
Mr Cable threatened you
this morning: if you take strike action to defend yourselves
against this government's attack on working class people,
he will tighten the laws against strikes. If you are all good
boys and girls he will leave you with the luxurious right
to strike (a "fundamental principle" he called it)
bequeathed to you by 13 years of Labour government.
Let me describe our present
right to strike ("no more than a mere slogan" as
one Court of Appeal judge described it):
For the individual
worker: all forms of industrial action (including working
strictly to contract and banning voluntary overtime) are in
fundamental breach of your contract of employment. For that
you can be sued, have pay deducted (sometimes greater than
the amount you would have earned), you can be disciplined,
you can have non-contractual benefits withdrawn without redress,
and, above all, you can be sacked. True, if you are sacked
during the first 12 weeks of industrial action you can claim
unfair dismissal but we have just looked at the value of that,
especially the chances of reinstatement - an order with which
(unlike an injunction against a trade union) the employer
can refuse to comply if it is prepared to pay additional compensation.
For the trade union:
Every form of industrial action called or supported by a trade
union is unlawful. There is protection against some forms
of unlawfulness - if the union goes through all the hoops
and hurdles of ballots and notices. It is still almost impossible
to call lawful industrial action, even after the Court of
Appeal decision a couple of months ago in which I had the
honour to represent RMT and ASLEF. There the court held that
not every trivial accidental failure will lose protection
from the common law.
The irony of that welcome
decision will not be lost on the movers of Composite 19 since
what the Court of Appeal have given us is exactly that which
John McDonnell's Lawful Industrial Action (Minor Errors) Bill
was intended to achieve - but there were not enough Labour
MPs prepared to attend the House of Commons to get a quorum
to let the Bill (supported by the TUC) go forward.
But ballots and notices
are only part of the problem. Some industrial action is absolutely
banned. The most important is secondary action. This means
that workers with different employers cannot support each
other, no matter how closely involved the workers or the employers
are with each other.
The limits on the right
to strike in the United Kingdom are the principal reason why
unions are so severely hampered in defending not just their
members but the working class generally.
This state of affairs
is not just unfair; it is in breach of international law.
I speak of treaties ratified by the UK and by which it is
bound. This is not just the opinion of Professor Ewing and
I. This is what the judicial committees established by the
treaties themselves have declared. These are decisions on
the conformity of UK law with the Conventions of the International
Labour Organisation, the provisions of the European Social
Charter and of the International covenant on Economic, Social
and Cultural Rights which guarantee the right to strike.
The European Court of
Human Rights has also held that the European Convention on
Human Rights contains a right to strike; that is why RMT and
UNITE are taking cases to the ECtHR on the lack of a right
to strike in the UK.
Let me give you a taste
of the judicial language used. Last year the Council of Europe's
Committee on European Social Rights expressed itself thus:
The Committee concludes
that the situation in the United Kingdom is not in conformity
with Article 6(4) of the Charter on the following grounds:
- the scope for workers
to defend their interests through lawful collective action
is excessively circumscribed;
- the requirement to
give notice to an employer of a ballot on industrial action,
in addition to the strike notice that must be issued before
taking action, is excessive;
- the protection of workers
against dismissal when taking industrial action is insufficient.
That disgraceful situation
is not enough for the government it seems. Mr Cable threatens
you with the further restrictions signposted by the Raab Bill
and by the CBI President in recent weeks (note how successful
lobbying by vested business interests is). What they propose
is that in a strike ballot not only must the union achieve
a majority of those voting but a majority of the entire workforce
(or at least 40% in the CBI proposal). That means that abstentions
will be counted as no votes. If that requirement had been
in place for the last parliamentary election most MPs would
not have been elected (and the Lib Dems would have been wiped
off the map).
If that proposal becomes
an Act of Parliament I propose to talk to your General Secretary
about a legal challenge by way of judicial review. However,
before that happens I suspect that the members of this union
will have an industrial response for Mr Cable.
I end by paying tribute
to the fight which this union is putting up against the vindictive
and vicious measures Mr Cable's government is taking to make
the working class pay for the crisis the bankers brought about.
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