PREVIOUS SPEAKERS:
Jim Moher
ILS, 8 May 2004
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to list of speakers Title: "Law and Industrial Relations – Too much Law, Too many Lawyers?"
Introductory remarks
You may be surprised that a trade union official should be raising the spectre of too much employment legislation! You may even think that it is typical of a union official to complain about too much regulation of their affairs, while piling on the pressure for more regulation of management. Particularly from a union with its own problems in Royal Mail. I can assure you that this is not my intent. I suspect that there are more than a few who have stayed this afternoon, may acknowledge that we may be reaching the point of saturation. The sheer number of complex legal rules governing some areas of the workplace today is undoubtedly a real headache for those involved in running businesses but also for those negotiating terms and conditions. To date, it is the small business lobby which complains most. But they have the weakest case against regulation in view of their track record of ignoring basic workers’ rights. Yet they are increasingly listened to by DTI civil servants and Ministers. To illustrate the point, I simply cite the latest DTI explanatory guide to their proposals for the Transfer of Undertakings (TUPE) regulations, long delayed due to such lobbying. It lists the existing provisions as follows:
"the Transfer of Undertakings (Protection of Employment) Regulations 1981, (SI 1794), as amended by the Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1987 (SI442), the Trade Union Reform and Employment Rights Act 1993, the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995 No.2587) and the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1999 (SI 1925)."
On my shelves, I have a thick purple loose-leaf folder just dealing with TUPE regulations, cases and commentary, and it is updated regularly. By and large these cases have shown the courts fleshing out the rights of workers increasingly ‘outsourced’ from secure to insecure jobs and ‘two tier’ conditions. Without them there would be no such protection. But the sheer mountain of fine legal logic and distinctions developed, now defies all but a small priesthood to interpret.
The area of discrimination law, which is equally important towards equality for our women, black and minority workers, is now another dense thicket of case law. Here I have only to cite Michael Rubenstein’s recent paper to this Society, in which he sketched the content of fifty one major cases soon to be determined in the higher courts, here or in Europe. These included:
- TUPE 7
- Unfair Dismissal 4
- Human Rights 6
- Disability Discrimination 6
- Equal pay 4
- Sex and race discrimination 10
The list is but the tip of the iceberg! The sheer enthusiasm and ingenuity in opening up this rich seam, alone justifies the continuous use of the term ‘Employment’ in our legislation!
It was Cicero, I think, who said ‘the more laws, the less justice’ - and that was about 2,000 years ago!
Today, we really do have a maze of domestic and EU-inspired employment regulation. This is what gives rise to so much forensic jousting in the law lists. Quite apart from the significant cost, the sheer uncertainty, is unsettling. At the very least, it requires heavy pruning and better management, if not root and branch reform.
It is now coming to be a serious concern for the government. That is why they are ‘simplifying and clarifying’ TUPE law and also bringing forward the ‘Dispute Resolution’ and ET Reform regulations, to stem the flow of tribunal litigation. I very much support their attempt to resolve more disputes at the workplace and was particularly pleased by the proposals to relax the three month time-limit while internal processes are being exhausted.
However, these proposals don’t go far enough to tackle the more fundamental problem. I suspect that there are too many villas and yachts spread around the Meditteranean, whose upkeep may defy the puny efforts of the Department of Trade and Industry to rein in a system now so highly-geared for such litigation. Turning the tribunals into ‘labour courts’ can only exascerbate the tendency towards longer and more costly hearings. Nor is there any point in simply blaming the lawyers, whose growth in this area has been exponential. All of us involved in the legal business have a job to do.
The real problem is the little considered shift from the old voluntarist system of industrial relations in Britain, to one of tight legal regulation and ‘individual employment rights’. That old system had to go for all kinds of reasons, the main one being the breakdown of the industrial consensus underpinning it and the all-party support for it in Parliament. But the change was totally ill-considered, because it was effected through war with the unions.
Labour Ministers handled the 1968 Donovan Report recommendations so disastrously, that they found themselves locked in battle with their trade union allies.
The unions usually get all the blame for all this, but the senior Labour politicians of that time must also take their share. But it was left to the anti-union Thatcherite governments’ of the ‘80s to impose the legal straitjacket we have today. This was shaped by their excessively individualist and lawyer-driven sanctions philosophies. The renowned British forte for pragmatic balance, deserted us in the heat of that war.
It was a chastened Labour and trade union allies which came back to office in 1997. We accepted this inheritance, indeed made a virtue of our more progressive individual rights-based reform programme. What we didn’t realise was, that together with obligations under EU Charters, (which we also trumpeted virtuously), we had signed up to an engine of legislation and case law. This would now be driven by individual litigants and their lawyers. Similarly, we did not anticipate the enthusiasm with which bodies like CRE, EOC and DRC would enforce their, necessary, remits with legal sanctions. Nor did the Labour leadership anticipate how the EU Commission in Brussels would keep adding to the pile of new Directives. Their answer has been to keep their finger in the dyke to try and limit the flow of new Charters and Directives from Brussels - but to little avail.
Of course, trade unions, have welcomed and encouraged this development as an important, if strange, new floor of rights. ‘Positive rights’ became the new TUC slogan of the 1990s, following European Commissioner, Jacques De Lors’ watershed address to their 1989 conference. The TUC itself has achieved a new lease of life on the basis of all this regulation.
This new ‘top down’ strategy was a way round the anti-union disposition of UK governments for all unions . It was also seen as the way to benefit millions of low paid and unorganised workers who had not the power to achieve for themselves many basic rights at work. It was also hoped that this and the accompanying equality rights agenda, would prove a major recruiting sergeant for union membership. It hasn’t really done so.
What it has done, of course, is introduce many important new rights for thousands of workers. But these clear gains are surrounded by a workplace environment with a much more formal and complex system of legal regulation, for all workers and managers. This doesn’t always achieve the benefits intended or does so at a disproportionate price.
As a union legal officer, I would be the last to diminish the importance of basic legal rights, especially the right of individual workers to seek justice at a tribunal. But the system is far too legalistic and encourages non-workplace and purely monetary remedies, especially in discrimination cases.
The fact that these new legal rights were initially to be enforced by legal sanctions, though complex and expensive, was originally justifiable. It showed that the system had ‘teeth’ to enforce these important rights. However, with the recent extension of the court system to the tribunals and the extraordinary price of higher court litigation, even those unions who enthusiastically pursued ‘legal strategies’, are beginning to wonder.
But ‘the genie is well out of the bottle’, as individuals or groups of workers have developed a distinct taste for pursuing their grievances in the tribunals and courts, encouraged by ‘no win, no fee’ lawyers. Some individuals are no longer satisfied with the old-fashioned compromises brokered by union officials on the basis of their collective strength – they want to go to a tribunal where they fondly expect ‘justice’.
This also includes taking cases against their own union representatives. Our elected lay volunteers are increasingly expected to meet professional standards as representatives in internal disciplinary or grievances processes. We recognise the need for training to achieve those higher standards but we do object to tribunals expecting the same level of professional competence from lay reps as lawyers.
There is disappointment about the efficacy of some of these new rights for the bulk of existing organised members. Ministers sometimes puzzle why there is so little appreciation from the unions for all the new employment rights which they have implemented since 1997. It may be that the organised core of the workforce do not see those undoubted advances as of much direct benefit to them. Certainly there has been no great enthusiasm for further European integration at the grassroots level, despite the many significant new rights from EU Directives.
There is also still widespread resentment of the one-sided and heavily restrictive State regulation of trade union activities, even in the ‘middle ground’ of the unions. I will refrain from ‘grinding that axe’ on this occasion, save to say that though we celebrate the fourteenth anniversary of Baroness Thatcher’s demise, the temper of the law on collective issues, remains distinctly anti-union. Ministers can hardly be surprised that union members keep electing so-called ‘awkward-squad’ general secretaries, if they are not prepared to even contemplate a serious review of all that legislation.
What can be done? I see my task today as simply to ask the question, has the Emperor too many clothes? As a union official, I do not wish to lose the many substantial gains of the last decade. But I question whether we need such a massive infrastructure of law to achieve them. I am sure that Mike Emmott and particularly Chris Chapman will provide more insights into how we could develop more informal, workplace-based systems of dispute resolution. I would just say that unless a new consensus can be achieved on both sides in the workplace, any system will go the way of the little-used ACAS scheme.
Unions and their active members are not impressed by the types of ‘partnership’ which are currently on offer from Whitehall. They seem to involve a very junior role for us. But if there were some real dealings on an equal footing about the collective realities of running the business and the fair treatment of the workforce, they would see much more interest. We bring the collective as well as individual dimension to work and thereby so much to the success of all businesses. Most good managers know this.
If I were to put forward some recipe for the future, it would be that we need a proper ‘root and branch’ review of all these employment laws. This needs to be done by those who understand employment realities and relationships. Their mission? To see if a lighter blanket of law could replace the current heavy one. Perhaps a new Royal Commission under a sympathetic and knowledgeable judge or academic, such as Lord Bill McCarthy. Its terms of reference should be broad, such as ‘to examine the current individual-based system, with a view to restoring some of the collective dimension of industrial relations, through effective dispute resolution mechanisms as well as legal sanctions’. We have too many laws and too many lawyers trying to resolve workplace relationships. It isn’t working.
It should also review the laws affecting the trade unions, with a view to stripping out much of the detailed and prescriptive regulation, replacing it with a more balanced and ‘lighter touch’ regulation. This should give back to unions the responsibility of regulating their own affairs more effectively. They have long learned the lessons of not doing so. But more positively by removing the deep sense of grievance felt amongst organised workers about this imposition, we would create the necessary climate to make the new consensus work. In this way, the law would again become a very last resort.
Jim Moher
8 May 2004