Tuesday, May 10, 2011

The tragedy of the employment tribunals

It's absolutely right that we should challenge and oppose attempts by the Tory Coalition to extend the qualifying period of employment for unfair dismissal claims (http://www.morningstaronline.co.uk/index.php/news/content/view/full/100371) and generally to make it harder for workers to seek justice in employment tribunals (http://www.personneltoday.com/articlesbytopic/192/pageid,1/tribunals.htm).

These are disgraceful acts of class war being waged by the Government of the millionaires against the interests of the millions.

However, we also need to recognise just how much less useful employment tribunals have become for workers - as a direct result of the increased role for lawyers, both as representatives and as agents encouraging claims for negligence.

Industrial tribunals were intended to be relatively informal settings in which unions and management could argue their case in front of an "industrial jury" with representatives of management and workers sitting on the tribunal.

They were an expression of tripartism, the 60s/70s model of regulating industrial conflict by incorporating workers into processes and institutions which offered some limited recognition of our rights and interests as an alternative to overt conflict.

As late as the early 1990s when I started more than a decade of regular tribunal representative as a lay union official (or "jumped up shop steward"), it was quite normal for lay and full time union officials to appear as tribunal representatives - sometimes with employee relations specialists from what we used to call personnel sections representing the employers.

We could back a case if it felt like the right thing to do, or if we needed to show our members that we backed a popular or long-serving colleague, or to show the employer that we were serious about enforcing the procedures which we had agreed with them.

As long as we didn't pursue completely hopeless cases we ran no risk that our members would face an order for costs even if we lost - and since the employers knew we would challenge almost any dismissal in an employment tribunal they were always on their toes when it came to following procedures before any dismissal.

It was the employers who first started using their own solicitors, and then barristers in the tribunal. For a capable and experienced union representative this wasn't a problem - it was great to represent a member whose case you had been immersed in for a year against a junior barrister who had never even had a real job and had received the case papers (tied up with a ribbon)(why?) the night before.

However, many members, seeing that the employer had lawyers wanted them on their side too - and, as society has become increasingly litigous so negligence claims against trade unions increased. In the early years of this century such claims were the fastest growing area of law involving unions (reaching their most extreme expression in the rash of equal pay related claims which could have bankrupted UNISON a few years ago).

Although the tide of claims against trade unions may now be receding, it washed away the way we used to deal with tribunal cases. In order to bring UNISON's professional indemnity insurance premiums under control, the union had to ban its officials from representing members in employment tribunals.

Now we refer such cases to solicitors and - if they think that the case has sufficient merit and advise us accordingly - we instruct them to take the case (and the legal liability which goes with it). Members who have a good case get quality representation, but members with a marginal case are left to fend for themselves. In the way of things, sometimes those members win a case we wouldn't take, or get a settlement after we have had to refuse to represent them. Though those cases may be a tiny fraction of the cases we have to refuse, they are of course the ones of which other members become aware. This is bad PR for the union, but that isn't something that can now be taken into account in deciding whether to take a case to tribunal.

Although this change was marketed at the time as freeing up the time of officers and activists for organising, it doesn't do that. There is as much work in preparing a case for the solicitors as ever there was in doing it yourself. The benefit to the union is entirely about the cost of professional indemnity insurance.

We have lost so much more. We cannot bring marginal claims to enhance the Union's reputation (workers don't mind seeing us lose a marginal case if we fought it with intelligence and determination - and we can recruit on the back of the respect gained by having been willing to have a go).

We have lost the ability to back a weak case for a respected and long serving member, leaving us vulnerable to the perception that we abandon our own in times of trouble - and losing the enormous benefit that came from the employer knowing that every dismissal of a UNISON member would be challenged in an employment tribunal (in all the years I represented many members against my own employer in the employment tribunal they never got costs against us - and almost never even tried).

We have lost the ability to weigh factors other than the specific legal merits of the particular individual case when deciding which cases to support. For an organising union this is a tragic loss, since we cannot decide to pursue a weak (but not hopeless) case in order to advance an organising objective - nor can we weigh the detailed local knowledge of our representatives as to the likelihood of the employer giving ground ahead of a hearing.

Most importantly of all, our lay and full time officials have lost the experience of tribunal representation. Regular appearances in the tribunal meant that you had to keep up with case law - and that paid dividends daily in negotiations with management and in internal hearings. Union officials who knew they would regularly be advocating for members at the tribunal were forced to try to keep abreast of case law.

Now that we don't do this, the pressure of other work means that it is hard to justify the day a year on a course to update employment law - or the odd afternoon in the Guildhall Library (the only public library in London to have the Industrial Relations Law Reports). It must be five years since I took trade union time to read up on the latest cases.

I realised this recently when I found the case of Junk v Kuhnel (http://www.bailii.org/eu/cases/EUECJ/2005/C18803.html), which has materially changed the law on the timing of dismissal in mass redundancy situations since last I had to deal with mass redundancies. When I was routinely in tribunals I would have lived and breathed such case law.

What really frightens me most of all is that we are now recruiting a generation of Regional Organisers who never have represented, and never will represent, a member in an employment tribunal.

Life is a mixed ability lesson, and the worst enemies of the trade union movement wouldn't accuse us of meritocracy, but do we really think that, now and forever, our activists and officials can never be capable of representing members in employment tribunals?

I think we need to pause and reflect on this. The law is far far too important for trade union members for us to leave it to lawyers.

Sent using BlackBerry® from Orange

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