Unfair Dismissal and the Myth of Red Tape

Unfair Dismissal: A Plethora of Red Tape?
Unfair Dismissal: A Plethora of Red Tape?

The Lancashire Telegraph is running a story on the unfair dismissal ruling of a former employee of Moorlands School in Clitheroe, Lancashire.

Along with two other members of school staff of Moorlands School, a private boarding school in Lancashire, the claimant was supervising a school trip at which a number of pupils got drunk. Depending on the exact circumstances, which are not reported, it does appear that dismissal for the teacher’s conduct was not excessive.The fact that the Tribunal did not award any compensation for the unfair dismissal – a Polkey deduction – suggests the the Tribunal agreed.

Nevertheless, Moorlands School were found to have unfairly dismissed the claimant, Deanna Hall, by adopting an unfair disciplinary process. According to the report one of the main errors of the disciplinary process was the school failed to adequately disclose all the evidence upon which the employer sought to rely to the claimant before the hearing.

In responding the the judgement Jonathan Harrison, the schools headteacher, went on the offensive and claimed that the problem was really one of excessive red tape:

Judge Howard did find that Mrs Hall was unfairly dismissed due to a lack of evidence being presented to Mrs Hall during the investigatory hearing. This was due to a slight Acas infringement. As employer it is becoming impossible to fully comply with every procedural aspect of Acas.

I think the first thing to say is you do not get unfair dismissal judgements for “slight” errors, Jonathan Harrison is simply being duplicitous.

As most readers will be aware the central question before an Employment Tribunal in assessing whether a dismissal is fair is whether the decision is within the ‘band of reasonable responses’. In British Leyland UK Ltd v Swift [1981] IRLR 91 Lord Denning explained this approach.

If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have reasonably have dismissed him, then the dismissal was fair. It must be remembered that in these cases there is a band of reasonableness, within which one employer might reasonably take one view: another quite reasonably take a different view. One would quite reasonably dismiss the man. The other would quite reasonably keep him on. Both views may be quite reasonable. If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair: even though some other employers may not have dismissed him.
 In short, a dismissal is not made unfair because an employer made a ‘slight mistake’, it is made unfair because it is a decision no reasonable employer could have made. Even if a Tribunal considered the decision of an employer to be wrong and in the same circumstances they would not have dismissed an employee the dismissal is still likely to be fair, like the example given by Lord Dennning above.
And the same principle applies to the disciplinary investigation. The Court of Appeal in Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 made clear that the band of reasonable responses test applies to a disciplinary investigation as well. In order to be a fair dismissal an employer must follow a fair process on the fundamental areas. One of these fundamental principles is making sure employees accused are offered the opportunity to see and respond to any evidence against them. This is a fundamental principle of natural justice that is best enunciated by the comment of Megarry J in John v Rees [1970] Ch 345 that

It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. “When something is obvious,” they may say, “why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start”Those who take this view do not, I think, do themselves justice.

As every body who has anything with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.

Nor are those with any knowledge of human nature who pause to think for a moment, likely to underestimate the feelings of resentment of those who find that a decision against them has been made with their being afforded any opportunity to influence the course of events.

It is precisely this principle that Moorlands School denied Deanna Hall, it denied her the chance to offer a defense to the undisclosed evidence. That is no slight thing and it would have taken a mere matter of minutes to do.
The simple fact is that if Jonathan Harrison really thinks the relatively simple standards of procedural fairness set out in the ACAS Code of Practice are beyond him he has absolutely no business running a school – he is clearly not up to the job. If he can’t run a fair disciplinary process such as showing an accused the evidence he will rely on to allow an employee an opportunity to explain then it beggars belief how he can cope with the much  more demanding, onerous and technical duties being a headteacher requires. The more likely scenario however is that the school screwed up the disciplinary process and made significant, not slight, mistakes in how the school ran the disciplinary process for Ms Hall. And, rather than face up to those errors and the unnecessary expense that has caused for the school, Mr Harrison is trying to shift the blame to the so-called overwhelming burden of red tape. It is an old, old strategy but hopefully one the school’s staff, pupils, governors and parents will see through.

So far as may be Lawful

lawIn a recent provocative article for The Guardian the Unite General Secretary Len McCluskey explains the background to a recent Rules change in the Union’s constitution that could pave the way for a major showdown with the the next Government (if Conservative led) over its trade union legislation. It is worth posting in it’s entirety, but readers can view the original version here.

Unions must be able to fight for workers – even if it means breaking bad laws – Len McCluskey

Unite’s rule book sounds just the sort of dusty tome to give employment lawyers headaches. Last week our governing body, Unite’s executive, unanimously agreed to make it shorter. It recommended the deletion from our rules of six little words that have governed our union’s actions: “so far as may be lawful”. So far, so mundane, you would be forgiven for thinking.

But that would be the wrong conclusion: the proposed change in the constitution of the biggest union on these isles marks the sorry place we have reached in our national democracy.

Our executive wants these words gone not because we are anarchists, not because we are suddenly planning a bank robbery, but because we have to ask ourselves the question: can we any longer make that commitment to stick, under any and all circumstances, within the law as it stands? I am aware that this is a dramatic question to raise anywhere, let alone in a room full of lawyers, as I did last night when I addressed the Law Society.

Let me emphasise Unite’s continuing determination to operate ever more effectively within the law, even when that law is an ass and ill-serves our people. Legislation restricting the right to strike, attacking the capacity for trade unions to organise and conduct their own business in line with their own rules, became some warped national consensus last century. Other aspects of that “consensus” – a deregulated financial sector, a flexible labour market, being intensely relaxed about the filthy rich – have been discredited since the global crash. Re-regulation, not deregulation, is the order of the day.

Yet trade union law remains untouched and politically untouchable, the great unmentionable of British politics. It is time it was subjected to the same scrutiny as all the other nostrums and dogmas of the 1980s. Trade unions do not need a change in the law; society as a whole needs a change in trade union law, or little else can change for the better.

The financial crash pulled back the screen on the ugly reality: widening inequality, wealth concentrated at the top, a shrinking percentage of GDP going into the pockets of workers, and governments unable or unwilling to confront vested interests. This is the world in which trade unions now operate. It is not by chance that these trends have accelerated at the same time the role and function of trade unions have been restricted and diminished. As long as companies can make more money by paying their employees less, or by sacking easily and then hiring cheaply, or by cutting corners on safety, then trade unions will need to exist. This was the case at the onset of industrialisation and it remains the case today.

Labour’s victory in 1997 was one of the happiest days of my life, and it brought many achievements to be proud of, not least extending civil rights for minority groups, the minimum wage, the family friendly policies that saw vast improvements for women and children, and significant investment in our public infrastructure and the NHS. But that first Labour government, with its huge parliamentary majority, did nothing to alter the legal superstructure that allows for the skewed accrual of wealth and power in our society. Tony Blair even boasted that Britain’s labour laws were the most restrictive in Europe.

Today, thanks to those laws, it is hard for any employer to fail to get an injunction against a contemplated strike – even a fully balloted and mandated strike. It is no exaggeration to say that the right to strike in this, the first country of free trade unionism, was and is hanging by a thread. Should there be a Conservative majority in May, there will be a new attack on trade union rights and democracy. The bar for a strike ballot will be raised to a level that hardly any MPs would reach in their own constituencies, by a government that has refused our requests to use modern, more effective balloting methods.

Agency labour scabs will be licensed to break strikes. Restrictions imposed on our campaigning role in the Lobbying Act will be followed by laws to make picketing nigh on impossible, too, attacking our ability to put pressure on an abusive employer in defence of our members.

It’s tempting to see this as simply a reversion to type by the Tories but that’s only half the story. The attack on trade unions is Tory core practice because they are well aware that they can get away with their desired assault on our national fabric only if they neuter any potential opposition, and the trade unions above all. They want to reduce us to the role of concerned spectators while they tear to bits every advance that working people have secured, every protection we have built up. Against that background, should the law, when made by an elected parliament rather than a despot or a dictatorship, be respected under all circumstances?

To take a stark example, before 1967 any man who slept with another man was breaking the law, as made by an elected parliament. Who, today, would dare to say that they were criminals, or that they should have been obliged to obey a law that, however democratically sanctioned, represented no more than the prejudice of ages? A more recent example: when Margaret Thatcher criminalised trade unionism at GCHQ, would any employee there who, in secret, maintained his or her trade union membership, be a criminal? Were they not right to break that law while it was in force?

It was, of course, a Tory, and eminent lawyer, Quintin Hogg (Lord Hailsham) who first warned of “elective dictatorship”, of a majority imposing its views – ignorant ones in the case of both gay rights and trade unionists as a security risk – on a vulnerable minority. People have intrinsic rights that can sometimes be violated, even by democratically elected legislatures. The right of working people to combine, to organise, is one of them.

If partisan legislation designed to push the legitimate democratic work of trade unions outside of the law is driven through parliament then we, in Unite, will not go gently into the night. We will rage against the dying of the light. We will drive forward with modern technology and use it to increase turnouts in our ballots without being shackled by prescriptions – such as postal ballots – imposed in another age. We are not going to let the Tories destroy our democracy by shackling us to archaic procedures.

A union’s job is to fight for working people’s rights. If, in the year in which we mark the anniversary of Magna Carta, the government wants to challenge fundamental rights of the citizen, then I believe they will be facing not just the trade union movement, but a huge section of our civil society. When the law is misguided, when it oppresses the people and removes their freedoms, can we respect it? I am not really posing the question. I’m giving you the answer. It ain’t going to happen.

A Box Ticking Exercise

tick-box Rule 11(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 requires that “The Tribunal shall reject a claim if it is not accompanied by a Tribunal fee or a remission application.”

In other words, since the since the introduction of employment tribunal fees if a claim is made but that claim is not accompanied by either the relevant fee or an application to HMCTS for a remission of that fee the claim will be rejected meaning the claim will not be heard.

Applications for a fee remission are normally completed on form EX160. Unfortunately, it is not open to an applicant to complete a form online; this means a claimant can submit a claim online but if they wish to make an application for remission they should tick the box stating this and send the EX160 from by post within seven days.

It is a needlessly complicated system, and one employer has recently tried to manipulate to argue a claim should be rejected. In Deangate Ltd v Hatley & Ors [2015] UKEAT 0389_14_2603 three claimants submitted an online ET1 one day before the limitation period for lodging the claim expired. However, the claimants did not pay the fee but stated that they would be making a fee remission application (which they did). However the EX160 was received by the Tribunal after the limitation period. The question, therefore, is whether the ET1 was, on the date of submission online, “accompanied by a  … remission application”.

As Langstaff P noted, ” If “ticking the yes box” did not amount to making an application this would have the unhappy consequence that in practice forms could be submitted online only by those with the funds to pay fees, and would disadvantage those who had internet access but no resources: but this, again, is not a necessary feature of the online submission of claims.”

In conclusion is was found that

Since it is not in dispute that each Claimant ticked the appropriate box, and my conclusion that to do so amounted to an application is one wholly of law, there is no other conclusion she could have reached.  Despite the considerable thought that Mr Pearson has put into his submissions, the appeal fails. It does so because I accept the Intervener’s argument that what happened in the case of each of the Claimants was that an application for remission of fees did actually accompany the claim, being made in the same online submission as the claim even if it was only fleshed out when Form EX160 was later sent in.

The decision is a welcome one but one, I am sure, that was taken with a good helping of pragmatism as it would have required HMCTS to completely rework its system. It is notable that the Secretary of State for the Ministry of Justice was invited to intervene in the case and it was the intervening Counsel’s arguments that was to prove decisive in the judgement.

For my part I cannot see how, given the tick box states whether the applicant ‘intends’ to make an application and the form by which this is done (the EX160) is not part of the application how ticking a box amounts to ‘an application’. That is not a problem with the legislation but with the pretty shambolic implementation of the remission process by HMCTS. Still, HMCTS will be thankful the President of the EAT has saved them some blushes (and,importantly, allowed claimants the opportunity to present their case).

The Obligatory Top Gear Employment Law Post

Jeremy Clarkson could be waving goodbye to his BBC career this week as his disciplinary hearing is expected to deliver its verdict.
Jeremy Clarkson could be waving goodbye to his BBC career this week as his disciplinary hearing is expected to deliver its verdict.

This week the fate of Top Gear’s Jeremy Clarkson should be decided.

The background facts do not appear to be contested (although no-one external can know for sure): Clarkson got into some type of fracas in a canteen with a more junior colleague and hit him.

I have not seen the BBC’s disciplinary policy but it is hard to imagine that hitting a colleague, and certainly a more junior colleague is not a dismissible offense. The ACAS Code of Practice, at paragraph 24, advises that:

Disciplinary rules should give examples of acts which the employer regards as acts of gross misconduct. These may vary according to the nature of the organisation and what it does, but might include things such as theft or fraud, physical violence, gross negligence or serious insubordination.

The allegations against Clarkson are of “physical violence” and are one of the examples of types of offense which are likely to amount to gross misconduct if proven. I can’t say I have any great sympathy for Clarkson, he has a history of making arguably bigoted and disgusting comments against others, especially minority groups and unions which should have got him the boot long before now. Still, I do not know the circumstances and so it is wrong for some, like Owen Jones, to call for his dismissal. Even if, as seems likely, he did punch a colleague I do not, for example, know whether there were any mitigating factors in play. Let’s suppose he was on medication of the type that affects behavior, or he had just received a devastating phone call telling him of the death of a loved one then that may be sufficient mitigation to justify him avoiding the sack. Similarly, it is at least equally as wrong for the Prime Minister to call on the BBC not to sack him. The fact is only those hearing the case will have the full story.

There is however reason for the BBC to be cautious about being too ready to accept mitigation as a means of avoiding the need to dismiss him. Yesterday the Mirror picked up on comments by the the law firm Irwin Mitchell:

The BBC now has to decide what to do and with so many licence payers signing a petition to have him reinstated, the corporation could be making a ‘rod for its own back’ if they put their demands first and decide not to terminate Clarkson’s employment. ‎

This would mean that it could be leaving itself open to unfair dismissal claims from other staff in the future if they are dismissed in similar circumstances or for other perceived gross misconduct offences and Clarkson is not.

Each unfair dismissal case is judged on its own facts and, truth be told, I am not completely convinced Irwin Mitchell are right. As was shown in Levenes Solicitors v Dalley [2006] UKEAT 0330_06_231, for example, even where treatment is disparate this will often not mean a dismissal is unfair.

It is however, an important issue, that is raised between how employers treat the misconduct of senior staff compared to that of more junior staff. Certainly, senior managers are dismissed but I do think there is a particular trend in some large employers for senior managers to avoid dismissal when, but for their seniority in an organisation, they would have been dismissed. This is actually the reverse of what should be expected objectively speaking: the more senior an employee the more significant the trust and confidence that that employee holds and, therefore, the more likely that such an offense destroys the employer’s trust and confidence in an employee.

I think it is clear that some in the BBC higher echelons do not have the best regard for Clarkson so the situation is, I suspect, unlikely to arise but if her were to keep his job it would still be extremely interesting to see how the BBC responds to the subsequent more ‘run of the mill’ disciplinary investigations that would invariably follow. Perhaps the first would be Clarkson’s co-presenter’s refusal to work and instigation of an unlawful strike?

Affirming Gross Misconduct

At the beginning of the mofirednth I posted What Will the Papers Say?, a piece on the High Court’ s decision in Williams v Leeds United Football Club [2015] EWHC 376 (QB).

Briefly, the claimant, then a Director for Leeds Utd FC, had sent pornographic images using the football club’s IT to three people: Dennis Wise, Gus Poyet and a LUFC administrative worker. Not one of the recipients made a complaint about the email and the football club had no knowledge of the misconduct.

A significant time later the football club gave notice to the claimant to terminate his contract which amounted to a year’s salary. However, after agreeing the termination but before payment was made the football club became aware of the earlier misconduct and launched disciplinary proceedings which resulted in the claimant’s dismissal.

Gross Misconduct is, at root, a matter of contract; it is conduct that is capable of destroying the relationship between the employer and employee. In the Williams case even though there was a delay in the employer discovering the misconduct when it did so it was open to the employer to respond by considering the contract terminated by the employee’s actions – even though there was a significant delay between the employee’s misconduct and the employer’s knowledge of the misconduct.

But what if LUFC had known about the misconduct previously but had declined to act? In Williams Lewis J covers this state of affairs by finding that in such a case LUFC would not be able to justify dismissal (paragraph 70):

Sixthly, Mr Barnett submitted that if the Club knew that the Claimant had forwarded the e-mails to Mr Wise, Ms Lamb and Mr Poyet prior to deciding to dismiss then the letter of 23 July 2013 affirmed the existence of the contract. I accept that if those who took the decision did know those facts prior to the decision to terminate the contract, then the letter of 23 July 2013 would amount to an affirmation of the contract of employment and that the Club could not thereafter rely on those facts as justifying dismissal.

In the same way that an employee when considering resigning from their employment and claiming constructive dismissal in response to a fundamental breach of contract must act quickly to avoid being seen to have affirmed the contract so an employer must likewise act quickly.

So, to amend the narrative somewhat, suppose Mr Williams still sent the emails but the following day reflected this was a big mistake and confessed the act to the LUFC Chief Executive. The Chief Executive is not happy and admonishes Mr Williams but decides to take no further action. In such a situation it would seem even if a new CEO is appointed LUFC is aware of the misconduct and, therefore, could not go on to pursue his dismissal on gross misconduct grounds as the breach of contract has been affirmed by the employer.

In my experience, this is not in fact an uncommon state of affairs. For example, it has not been an uncommon situation for an employee to do something wrong and then promptly tell their manager of this and for the manager to take no further action.

For employees and trade union reps this is a reminder of the basic principle that an employer as well as an employee may affirm conduct that is capable of repudiating the contract between them and it is one that it would pay to be alert do. In cases where an employee subject to disciplinary investigation readily admits to me (as their rep) that they did the misconduct they are accused of I often ask if they have ever told the employer this; it is surprising how many have.

In practice (and especially where documentary evidence is available) the very fact of prior notification is sufficient to see of the allegation, meaning there is no need to revert to more legal affirmation of contract arguments.

Strangely, and in my view wrongly, the Court of Appeal have in a case arising from the tragic Baby P case (Christou & Anor v London Borough of Haringey [2013] EWCA Civ 178) suggested the opposite and that where an employee has been investigated for an offense and been given a warning the employer can go back and ‘have a second bite’ and dismiss the employee for the same offense (and here, even if there was a difference of emphasis, it is clear the employer knew of all the relevant facts later relied upon). Clearly, in that case the fact that the employer did not dismiss in the first instance can be questioned but having made that decision seems to fly in the face of any concept of fair process. Thankfully, this type of situation will be exceptional but I certainly hope, in time, this case will be overturned.

Trade Unions and Fixed Term Workers

tuc_LogoThe Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations are, undoubtedly, an important protection against unscrupulous employers.But a reading of the preamble to the Council Directive 1999/70/EC, the European Directive the UK regulations implement make clear that fixed term employment should not be seen as the norm.

The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.

This agreement sets out the general principles and minimum requirements relating to fixed-term work, recognising that their detailed application needs to take account of the realities of specific national, sectoral and seasonal situations.

In spite of this I have observed a definite trend in that a significant number (and sometimes a majority) of new trade union vacancies are being advertised as being available on the basis that a would be employee being guaranteed employment for a limited period of time, usually only 12 months.

Certainly, I have no doubt that in certain circumstances a fixed term appointment may be reasonable. For example: if a temporary replacement is needed for an employee on a career break or maternity leave or to work on a time limited campaign. But the majority of posts are not these.

Take today, for example. At the moment the TUC website has the following posts advertised from affiliate unions:

  • NASUWT – 2 Posts – Both Permanent
  • CSP – 3 Posts – One three months FTA “with possibility of permanency”, the others Permanent
  • Unite – 7 Posts – One Permanent, the others one year fixed term appointment.
  • NAHT – 2 Posts – Permanent
  • GMB – 7 Posts – 2 Permanent, the others one year fixed term appointment
  • Prospect – 1 Post – Permanent
  • RCN – 2 Posts – One year fixed term appointment
  • FBU – 1 Post – Permanent

In sum then, of the 25 open vacancies being advertised on TUC Jobs today 10 (40%) are only available on fixed term appointment. There is not any indication in any of the advertisements why the posts are only available on a fixed term basis and nothing in the job descriptions to indicate that they are time limited. And, since all new employees would be required to pass a probationary period it cannot be to determine if they are a ‘good fit’ for the role.

Today’s figures are fairly representative of general trends in trade union recruitment and that concerns me.

Let’s get the personal reason out of the way first: I am not just looking at TUC jobs for entertainment purposes, if a role comes up I would like to and think i would do well do then I’d quite possibly apply for it. And there have been jobs that i think I’d be good at but, normally – and this may just be bad luck – it is those jobs that seem to be available on a fixed term appointment. I am certainly not on a great wage but nonetheless, even if the roles advertised pay a bit more than I am at the moment I am not going to leave a role where I have permanent contract for a fixed term one with no job security.

Second, I think the least we can expect of trade union’s as employers is that it sets a good example for other employers. Just last year the TUC published research that showed that by a significant majority new jobs created lacked security, be that because they were agency, zero hour or fixed term appointments. Whilst I am not suggesting that trade union employment practices are on a par with purveyors of zero hour contractors etc this reliance on temporary contracts to complete ostensibly permanent roles is not good enough. After all,  even the EC acknowledged contracts of “indefinite duration” are the “general form” of employee recruitment.  It seems to me to be bad form that major unions are lagging behind this ideal.

Third, we know that this government has made legal remedy much harder for employees, restricting the right of employees to claim unfair dismissal after over two years service. With the huge increase of those workers on insecure contracts of employments there are huge swathes of the current workforce who are deprived any legal redress as a result of Conservative and Lib Dem policies (and, Labour has not exactly been forthcoming in committing to rescind these changes). To be sure, the TUC have been critical of these laws but let’s be under no illusion TUC HR managers in setting these contracts at a length below that which enables employees to challenge their dismissals in a meaningful way don’t know exactly what they are doing. And, since next to none of these fixed term advertisements show no indication that they are in fact genuinely time limited the effect is that these union HR departments have knowingly pitched their adverts to ensure any successful applicant has no recourse if their ‘face does not fit’ once in post.  Unenforceable ‘promises’ such as ‘with possibility of leading to permanent contract” only reinforce this cynicism. If you get a post don’t for the sake of your career ask any difficult questions or volunteer to be a union rep, or magistrate, or army reservist etc as you may find a contract is not renewed for ‘business’ reasons.

There is nothing unlawful about the advertisements from these TUC unions, but am I alone in thinking this is bad form and a bad example?

Viral Voting and Union Barons

McLuskey: Because nothing says Union Baron like subjecting yourself to regular elections.
McCluskey: Because nothing says Union Baron like subjecting yourself to regular elections.

Whenever there is any critical comment on trade unions in the UK mainstream express two words will inexorably find their way into the headline: “Union” and “baron”; especially by titles such The Telegraph, Daily Express, Daily Mail and even the BBC.

It is an unfair term designed to present unions as run by unaccountable leaders. Barry Gibson summarises the absurdity of the designation well:

“Union barons!” … I’m only aware of two other types of baron, and neither of them has much in common with the people debating composite motions in Brighton this week.

The first is the medieval baron, who gets his kicks out of riding round the parish on his horse terrifying the serfs and pillaging their food.

And then there is the drugs baron, who does much the same thing, except in a flashy car rather than a trusty steed … The only thing that unites the three types of baron – medieval, narcotic and union – is that they all wield some sort of power.

But here’s the difference, and it really is a crucial one: a union baron can be toppled if enough serfs vote for someone else when Mr Scary Boss is up for re-election.

As a way of changing leader, it’s simple, peaceful and democratic.

Try asking either of the other types of baron when they plan to submit themselves to the will of the people and see how far you get.

The use of adjectives is most likely more than just lazy journalism and designed to promote negative stereotypes. What the criticisms fail to acknowledge is that far more than political parties trade unions are from top to bottom democratic – at regular intervals every single member of a trade union has the chance to elect who will represent them, and conversely, who they are so thoroughly disappointed with their representatives that they vote them out of office.

But that is not to say there is not a democratic deficit. I have personally been elected to positions when less than 15% of eligible voters bother to cast a vote. Every member had the opportunity to vote and I have no doubt about the validity of those elections but, nonetheless, that c 85% of members chose not to is a matter of deep concern to me.

Part of the reason for those low turnouts – and there are certainly other reasons – is the nature of how elections in many unions take place. As I have set out before, trade union elections are not only far more expensive than they need to be but, in addition, the requirement for postal ballots drastically reduces voter turnout. For that reason it is good, as TUC General Secretary Frances O’Grady points out,  to see WebRoots Democracy’s report on online voting in political elections, which has received cross party endorsement has as one of 10 recommendations suggested that

The Government should overturn legislation blocking online voting in Trade Union ballots and introduce online voting for Trade Union strike ballots by 2016.
Such a move is certainly not a panacea on the matter of member engagement in union democracy and, even with such a change, there would be much to do but it is certainly a step in the right directions. Here’s waiting to see how the report will be received.