Broken Promises and (allegedly) Bullying Managers

Broken PromisesI have spent Saturday morning, as every sane person does, skim reading historic EAT judgements, and in the process stumbled upon the decision in USDAW v Burns. USDAW v Burns is a 2014 unfair dismissal case, the background to which will be familiar fare to many trade union reps, notwithstanding that the Respondent in this case was a trade union.

Mr Burns worked within recruitment for USDAW raised a concern about bullying by his manager and at the relevant time had been absent for over a year, one assumes this absence was related to the workplace situation but it is not explicitly stated. A grievance was investigated and the tribunal found that this was a reasonable conscientious investigation; at the same time Mr Burns was deemed to be fit to resume work.

However, Mr Burns refused to return to work for Mr Aylward (the manager he had accused of bullying him) but expressed a desire to return to work and remain in the employment of USDAW. Since all recruitment work was in the same division and reported to Mr Aylward there was no possibility of performing his role elsewhere. However, in a meeting with the union’s General Secretary Mr Burns was told that they would explore if there were any other vacancies he would be suited for.

At a meeting four days later the General Secretary informed Mr Burns that there were no other vacancies and he was dismissed, the reason for dismissal being some other substantial reason. However, in point of fact, the tribunal found that USDAW had not completed any skills appraisal of Mr Burns or made any enquiries before they communicated their decision to dismiss.

The employment tribunal found that this broken promise was a material factor when considering the reasonableness of the dismissal and determined that the dismissal unfair. In fact, the tribunal went further and suggested that that in all cases of dismissal for some other substantial reason an employer should “take all reasonable steps to find suitable alternative employment.” On appeal the EAT (38) squashed this wider point robustly:

We do not consider there is any such duty arising either at common law, through employment law or through a code of practice.  It is stated too absolutely.  No ground of appeal was founded upon it nor argued before us, so we do not need to consider it further.  But, because we are conscious that this judgment may see some currency elsewhere, we want to make it clear that we do not accept that approach

Nonetheless, the EAT dismissed USDAW’s appeal and found that the having made a promise to explore other opportunities a failure to do so is a key factor to be considered in determining whether a decision to dismiss an employee is reasonable (under section 98(4) of the Employment Rights Act 1996).

Whilst it is not the case that any broken promise by an employer will mean a dismissal is unfair if the takeaway (and common sense) take away point is that if an employer promises to do something that may mitigate an issue for which dismissal is contemplated and then fails to do that then that is a potentially strong ground upon which an appeal or unfair dismissal claim can be based.

 

 

Discretion on the Sift

decisionWhen a claimant lodges an employment tribunal claim the case does not always get so far as the Respondent even needing to decide whether they contest the case and need to submit an ET3 (the document setting out a Respondent’s Grounds of Resistance). Sometimes an employment judge reviews the case at the outset and determines the case should not proceed (called ‘the sift’) and strikes out the claim.

Three appeal cases on this practice have been issued in the last two weeks and they offer a timely reminder to take care when lodging tribunal claims.

Cranwell v Cullen is a case in which the Appeal judge evidently had a great deal of sympathy for the claimant. In order to submit an employment tribunal claim it is a mandatory requirement (with very few exceptions) that a claimant must go through ACAS’ Early Conciliation process. This is evidenced by a EC certificate issued by ACAS, the number of which must be added in a claim.

The claimant alleged that the Respondent has subjected the claimant to sexual harassment and it is clear the issues between the two parties were extremely serious since the Respondent was prohibited from contacting the claimant. Understandably, given the gravity the claimant did not consider early conciliation would resolve the issue but evidently was not aware that while conciliation was not mandatory, approaching ACAS and explaining the position was.

In the event the claimant lodged an ET claim but did not approach ACAS before doing so. Despite the very serious complaint of sexual harassment against the Respondent the claim was struck out as no EC certificate had been issued which is a mandatory requirement. This was done without any hearing of the claimant’s explanation why the requirement had not been followed. At the appeal the EAT confirmed that in the application of this Rule an ET judge has no discretion even if, as in this case, a strict application of the law amounts to the denial of justice to an unrepresented claimant. Reading the law at issue it is difficult to conclude that this decision is correct insofar as the interpretation of the Rules goes but it is also difficult to avoid the conclusion that it is the absolute bar on discretion – even if that is just judicial discretion to further extend time limits to allow a claimant to follow the EC process – is an impediment to access to justice. The one sop is the judge’s indication that were the claimant to resubmit, having gone through the appropriate process, then even if out of time which seems to be almost certainly the case, the claimant may have good grounds to argue the case should nevertheless proceed to hearing but even hear there is no certainty.

Sterling v United Learning Trust covers similar terrain to Cranwell in that it also concerns the ACAS EC process as a necessary prerequisite to submitting a tribunal claim. Although the circumstances are less severe the circumstances are equally concerning. Here it appears the EC process had been followed by the claimant. The claimant submitted a claim, with an EC certificate, four days before the time limit expired but the EC number had a mistake on it. The Tribunal returned the form to the claimant to correct the error but addressed the envelope to the wrong address.  The claimant made the claim, with the correct information, as soon as she was able to but by that time the claim was out of time. As a result the claimant’s claims of unfair dismissal was struck out. Again, an analysis of the initial tribunal decision by the EAT did not find the decisions to be unlawful despite the errors of the tribunal itself (worryingly, this seems not to be a isolated incident where the tribunal’s address errors affects a claimant’s ability to have their claim heard – see Carroll v The Mayor’s Office for Policing and Crime).

Unlike the previous two cases Higgins v Home Office does not concern ACAS EC (but again (!) suggests that Tribunal staff made errors in addressing correspondence – see para 11). The claimant resigned her employment in 2007 and evidently had significant health concerns. Six years later the claimant in what was a very muddled ET1 (she was not represented) claimed she had been constructively dismissed, she submitted medical evidence that she had been too unwell to submit a claim. The EJ struck out (semantics notwithstanding) under Rule 12 of the Tribunal Rules which means the case was stopped without any hearing. The initial decision was a harsh one and the EAT allowed the appeal and remitted the case to a different EJ to consider afresh whether the claim can proceed.

So, what is the common thread in these three decisions. Leaving aside the apparent propensity of Tribunal staff to send incorrectly addressed correspondence to claimants (see Higgins, Carroll and Sterling) the issue in Carroll and Sterling is the absence of judicial discretion in the application of Tribunal Rules. While others in the union movement disagree by and large I think the addition of mandatory Early Conciliation process is by and large a positive one. However, it also introduces new requirements that give rise to additional errors claimants can make. The ET system is one which was intended to be “easily accessible, informal, speedy and inexpensive”. I suspect if you were to ask the claimants in Carroll or Sterling whether their experience was one which was ‘easily accessible’ or ‘informal’ you may find the answer is negative.

The Rules imposed by the last Government (which in respect to EC are, I think, positive) allowed no discretion for the exceptional case, such as the claimant in fear of her safety or the claimant whose claim is late because of Tribunal sent a form to the wrong address. The result is claims in such circumstances are legitimately refused lawfully whilst at the same time presenting a barrier to justice. That dichotomy needs to change.

More broadly however for employee representatives the cases above also offer a reminder on the need for care when presenting claims. I, like many reps, too frequently leave submitting claims to the very limits of the limitation period, not necessarily out of design but because of workload. That may often be a mistake – had the claimant in Sterling submitted the claim three week’s before the limitation period ended rather than four days previously there is every chance the error (if there was one) would still have been caught in time even if there was an error in the claimant’s address. Likewise, how often do we cross check the ACAS EC number we provide on the form (or check we’ve submitted one) before submitting? Failing to do so could result in a employee being deprived of the opportunity of presenting their case. And again, do we ensure the claim and tick boxes match and the actual nature of the claim is clearly spelt out (especially if a claim form is written by an employee rather than a rep – which may not be advisable but frequently happens). Failing to do so gives a Tribunal the opportunity – however unfairly – to strike out a claim.

Cases:
Cranwell v Cullen [2015] UKEAT 0046_14_2003

Sterling v United Learning Trust [2015] UKEAT 0439_14_1802

Higgins v Home Office & Anor [2015] UKEAT 0296_14_0605

Carroll v The Mayor’s Office For Policing And Crime [2015] UKEAT 0203_14_0902

There is Power in a Union

Michael Reed is a solicitor and principal legal officer for the Free Representation Unit (the FRU). I should say at the outset that I have immense respect for the work of the FRU (and if you can, I would encourage you to support them).

As a union rep I have also referred cases to FRU and always been impressed with their work in securing good results for our members.

All of the above is by way of preamble to introducing a post Michael has posted on power relations in employment. Here’s a taster:

If we’re worried about people being mistreated and exploited in employment, the people we need to be concerned about are those who lack power. That means people working in unskilled and commoditised jobs, who are likely lack the cultural capital and personal characteristics to balance the employer’s power.

The point of employment law, really, is to give those people, without other sources, a bit of power. That, we hope, means they will be treated better than they otherwise would.

That’s what makes things like employment tribunal fees and zero-hours contracts so dangerous. They take power away from people who are already in an unbalanced power relationship with their employer. And the more unbalanced that dynamic becomes, the more likely they are to be badly treated.

There really is nothing in the post itself to disagree with. It is certainly the case that the greater the power differential in employment (as in the rest of society) the greater the extent of exploitative employment practices. Sometimes this is down to plain exploitation (I am thinking here of companies like Sports Direct who keep the majority of their staff on vulnerable employment contracts); but equally, sometimes there dynamic comes from more ‘soft power’ sources such as being from the same social grouping as ‘the bosses’, being a skilled worker (and thus harder to replace), or even just being more erudite.

But what baffles me about Michael Reed’s post is the complete absence of any reference to trade unions. Although trade union membership  has undoubtedly declined in the last three decades it still remains the largest political grouping in the UK, at just under 6 million workers. And although a significant percentage of trade unionism is within the public sector there are signs that the levels of membership private sector are on the rise.

Power in the workplace as it relates to trade unions works in different ways. On one level there there are occasions where a union being present or asking questions reduces inequitable treatment. On a personal level this does sometimes happen in disciplinary and grievance cases. A worker raises a question and they have no joy resolving an issue or are subject to disciplinary proceedings on tenuous grounds but when a union rep is involved the employer takes a different tact – more assiduously complying with fair processes for example.

To give a recent example I was recently approached by a union member who had had about 10 days annual leave from his allowance at the end of a leave year. He had previously tried to book that leave earlier in the year but had been refused and when he tried to book it again he was again refused as ‘he did not give enough notice’ despite giving trying to book over one month in advance. Despite the member escalating the issue through their line management chain they had no joy – however, after coming to PCS a simple question about how their decisions could be consistent with the Working Time Regulations resulted in the decision being overturned. Because of union intervention that member did not have lose 10 days leave and this was done without any need for an unlawful deduction of wages claim using an employment tribunal.

But the advantage is not just personal. One of the problems of modern trade unionism is it has a tendency to follow the individualistic turn or broader society. It is this type of tendency that leads to the the trade union as individual insurance policy type of approach. The main benefit of trade unions is on the collective rather than purely individual level, this is what TUC refer to as the Union Advantage. Trade Unions do deliver benefits to employees. Where a union is recognised for collective bargaining (which can only happen if individual membership reaches a critical density) members do get better pay and conditions of service which themselves minimises the power differential Michael Reed referenced. At it’s most basic that power is itself in the hands of members themselves. Individually an employee can be picked off by an employer and reject their grievances but if each employee stands together – for example, by unanimously taking industrial action together – those same grievances can be remedied. It is the union, therefore, that offers a remedy to the power differential which Reed referred, even more than an employment law system whether access to it is restricted or not.

I will leave you with the Billy Brag classic There is Power in a Union. But before I do so if you are not a trade union member why not join today? Not only is it in your interests but also in the interests of your colleagues.

Cross Examining Witnesses in Disciplinary Hearings

Although unlikely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.
Although likely to lack the theatrics of A Few Good Man in certain circumstances cross examination of witnesses may be an appropriate tactic.

In an Employment Tribunal hearing the cross examination of witnesses represents the majority of a disciplinary hearing. By contrast in a misconduct hearing of an employee the overwhelming majority of hearings will feature no cross examination of witnesses at all.

As was set out in R (Bonhoeffer) v General Medical Council in certain circumstances the refusal to allow an employee the right to cross examine would represent a denial of an employee’s right to a fair trial and amount to a breach of the their Article 6 ECHR rights. In practice though this is unlikely to apply to most disciplinary hearings and only where the right to practice their profession rather than just current job is at risk.

The ACAS Code of Practice on Disciplinary and Grievance Procedures does not give an expectation that an employee must be allowed to call and cross examine an employee but it does go someway to suggesting that this may be appropriate. Paragraph 12 suggests that an employer:

The employee should be allowed to set out their case and answer any allegations that have been made.The employee should also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also be given an opportunity to raise points about any information provided by witnesses. Where an employer or employee intends to call relevant witnesses they should give advance notice that they intend to do this.

In my experience employees subject to misconduct proceedings do sometimes seize on the idea to cross examine an employee (usually an individual who who has made a grievance). I nearly always think this is a bad idea and thankfully have nearly always been successful in dissuading them. Many times the reason is simply some employees are incensed by what  has happening to them and the opportunity to vent some of that frustration seems an attractive one.

Other times the case against cross examination comes down to two issues. First, there is no independent verification and the allegation relies on one person’s word against another. In such cases I prefer to argue that in the circumstances (when an employee has a clean disciplinary record) and credibility has not been questioned in an investigation it is appropriate to give the benefit of the doubt following the advice in Salford Royal NHS Foundation Trust v Roldan (paragraph 73) that:

The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved.

Second, there are cases where the credibility of the opposing side can be impugned with documentary evidence – which may or may not have been considered in the disciplinary investigation. In such circumstances I do not see what benefit it would be for the employee to cross examine the witness – the smoking gun is already in their hands and cross examining would only risk the value of the evidence being lessened by the opportunity to be explained.

However, employee representatives will want to know that if a cross examination is requested and an employee is refused, especially where the accusations or consequences are serious, then this may itself represent a ground for unfair dismissal (see TDG Chemicals Ltd v Benton). If nothing else, if you’re confident a request will be refused then asking for the right may itself give an employee a ground of appeal they would not otherwise have (but you risk having the request granted and then having no questions to ask).

Case References:

R (Bonhoeffer v General Medical Council [2011] EWHC 1585 (Admin)

TDG Chemical Ltd v Benton [2010] UKEAT 0166_10_1009

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

Is Diabetes Necessarily a Disability?

diabetesIf a person has type 2 Diabetes are they necessarily disabled under the Equality Act 2010?

This was the question considered by the Employment Appeals Tribunal in Metroline Travel Ltd v Stoute [2015] UKEAT 0302_14_2601. The claimant had type 2 diabetes but was not on medication for this but did control his condition by controlling his diet, this basically comprised of the claimant avoiding fizzy drinks. The first tier tribunal made reference to the statutory guidance on the definition of disability which it was obligated to have due regard to. In particular, the Tribunal considered paragraph B12 of that guidance (emphasis added):

The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.

On the basis of that guidance the Tribunal determined at a preliminary hearing that the claimant’s avoidance of sugary drinks was “a particular diet” and, therefore, that the claimant was disabled for the purposes of the Equality Act 2010. However, the claimant was to lose the substantive hearing, and no appeal against that finding was made.   In the appeal judgement (which concerned only the statutory definition of disability) the judge disagreed; at paragraph 11 it was found that “abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction.”

In coming to that view reference was also made to B7 of the statutory guidance, which states that a person may not be at impaired from carrying out normal day to day activities if they can reasonably amend their behaviour to avoid the impairment:

Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.

For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities.

In applying this paragraph the EAT also found (in addition to the finding that avoidance was not a particular diet that avoiding drinks such as Coca-Cola and Fruit Juices was a reasonable modification and that the normal day to day activity of eating and drinking did not have a substantial affect was not substantially affected (although how this was done without any regard to the personal circumstances of the (debarred) claimant I do not know. If you were a teetotal and unable to drink either a Coke or a Orange Juice because of Diabetes that does not leave much choice of liquid refreshment on an evening out! The effect of the avoidance may therefore be substantial, but this was ignored in the judgement.

Unfortunately, in Metroline there no opportunity for the Respondent (the claimant in the case) to put forward legal arguments and neither were there any representations (by the EHRC for example) made and so we are left with quite an unhelpful judgement. It seems a perverse decision to say avoidance of a particular very commonly consumed foodgroup is not “a particular diet” as the EAT said here; that would still leave the question of whether normal day to day activities were affected because avoidance was a reasonable modification which would be particular to the case in hand (but in the event was not considered).

Still, the judgement does throw into light the difficult question of what is reasonable modification; it is one I think there is very little guidance on for reps. It is also one prone for abuse by employers.  When making disability related complaints, particularly with conditions like diabetes, social anxiety, and stammering it would be worthwhile to spend a few moments considering whether there are modifications employers are likely to argue would be reasonable.

 

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.