Tag Archives: Labour Party

Labour Party to promise new flexible working rights

The whole strategy of political parties briefing on what a politician ‘will say’ and the media reporting on what is just a PR exercise is something that infuriates me rather than, you know, wait until the politician has made their speech and then reporting on that.

With that in mind what follows will strike readers as somewhat hypocritical – guilty as charged!

It is reported that Dawn Butler, Shadow Minister for Women and Equalities, will commit that a Labour Government will reform current flexible working rights. Under current legislation any employee  who has worked for an employer for 26 weeks can make a statutory request and have the right for that request to be reasonably considered (although it can, and often is, refused), and only one request may be made per year.

Much reporting of Labour’s legislative commitment focuses on the pledge that instead of the qualifying period of 26 weeks the right will be a ‘day one’ right. This emphasis has drawn some kneejerk criticism that it is a tinkering around the edge and does nothing to address the core issue that there is no right to work flexibly, just the right to request it. The criticism of Stefan Cross QC is indicative of this trend.

I am very conscious that I am relying on press briefings and have seen nothing but the BBC report suggests there will be at least three aspects of the policy, some of which point towards Labour having a substantive right to work flexibly in mind and having this much more accessible without needing the recourse to the law.

First,  there is the the suggestion that the right to request becomes a day one right. If this were all that was proposed then I can see some merit in the pusillanimous allegation, although it would be churlish not to recognise that attaining a right – even if not an especially valuable right – at the very beginning of one’s employment is a step forward. In itself though this is not a major step forward as unless backed up with significant anti-avoidance mechanism (I am think here of punitive compensations awards for breaches) it is not hard to see that most employees will be dissuaded from exercising that right given they are in a new job and potentially not secure since still subject to a probationary period.

Second, we are told that Labour would create a “presumption in favour of flexible working,” presumably a statutory presumption. It is unclear precisely what this would mean, it may mean that every employer would be under a statutory duty to ensure that, unless unfeasable, every post was actually available to be worked flexibly. Alternatively, it could mean that in the event of a flexible working request there is a statutory presumption that the request should be accepted unless that presumption was rebutted and so make the enforcement of flexible working working rights in the employment tribunal more effective. Or both.

https://platform.twitter.com/widgets.js

The signs are that this is a positive move that if implemented will be positive for all employees. What is not clear yet is whether, as the current rights are, the right to flexible working will remain the preserve of employees only and whether Labour will retain the thoroughly iniquitous employee/worker distinction that would prevent many workers exercising these rights.

Third, another interesting aspect of this the focus on women’s equality in the workplace. Butler is reported to say that “this change to the law is essential to closing the gender pay gap and dismantling the structural barriers that hold women back from promotion and progression.”

The reason I say this is interesting is because in terms of enforcing rights to flexible working women will often find themselves able – because of systemic sex bias in society towards women caring for children and disabled relatives – to pursue flexible working refusals not only under the pretty ineffective remedies under flexible working legislation but also as a indirect sex discrimination claim that is often less likely to apply to men seeking to enforce flexible working rights. This means that insofar as enforcing flexible working rights (and in this respect only) many women who do need flexible working for caring reasons are at an advantage.

My assumption is that Labour think that, if enacted, then women will not need to enforce these sex discrimination rights as far more requests will be granted at first instance so they will no longer be at a particular disadvantage – this certainly seems the thrust of the very bold assertion of Butler’s that under “Labour’s plans, no woman will be shut out of the workplace because they’re a mum or they care for a parent or a disabled loved one, or both.” If that proves to be the case then it will be a success.

The related consequence and one that deserves more emphasis is, as Butler says, that the policy “may also result in more men taking on caring responsibilities themselves, finally lightening the load that women bear.” Of course, if that is a policy aim – and I see no reason why it shouldn’t be – then the next appropriate policy to be looked at is whether there should be equality of rights in respect of may be enhanced pay for both maternity and paternity leave.

Still, with all the recent acrimony it is good to see some coverage of the work Labour is doing to improve the lot of working people and their families.

Unite Union, Labour, and Zero Hour Contracts

milbandIt is certainly not a new tactic: when a politic party makes a proposal with which the other parties are not too enamored they adopt a guilt by association posture. And so it was last week, fresh from the Labour Party launching its Business manifesto cracking down on zero hour contracts, the Tory cheerleaders at the London Evening Standard targeted Unite (and by implication Miliband) on Thursday (on the eve of the leadership debates) for hypocrisy.

Unite the Union is the Labour Party’s largest financial backer which is the basis for the LES to run a story on Thursday that ‘Labour’s biggest union donor used zero hour contracts’. The background is what is assumed to be a Preliminary Hearing at the London South Tribunal for Martyn Reuby who is bringing an unfair dismissal claim against Unite the Union. Mr Reuby had delivered training for Unite at many local colleges; he contended that he was an employee of Unite, whilst Unite contended he was either self-employed or employed directly by the colleges. In order to make that claim Mr Reuby would need to establish he was an employee, hence the reason for the judgement which was not about whether he was on a zero hour contract but whether he was an employee.

In its judgement, which Unite have said it is appealing, the tribunal determined that Mr Reuby was employed on a series of short term contracts. It was Mr Reuby’s solicitor, not the tribunal, that suggested he was ‘effectively’ on a zero hour contract (the use of such an adverb usually in my experience has the same intellectual coherence as ‘I am not a racist, but …’ The Unite response to the LES’s story is pretty unambiguous: “Unite does not use zero-hours contracts and it is misleading to say so”.

On that basis the story is a pretty empty attack piece lacking in substance but of mud slinging. When the politics of employment law apocalypse fail, the next recourse is claims of hypocrisy. But here, it is not even Miliband being accused but a Labour Affiliate.

Still, while the charge of hypocrisy may be technically incorrect and represent some pretty petty political pointscoring the tribunal judgement does again bring into focus the tendency of some parts of the Union movement, when employing staff, to adopt some pretty shoddy employment practices. This is something I have picked up before. Here, even by their own admission, Unite have been procuring the services of a worker who even in the very best designation (the one Unite tried to argue) was a self employed worker who would preferred to have been an employee. In fact, however, the Tribunal’s judgement is that he was an employee in a succession of fixed term appointments – this is precisely the insecure type of employment which the union movement has criticised as being the basis of the ‘economic recovery’, workers with no security of employment. Whether or not the union succeeds in its EAT appeal the fact remains that in a duty core to the union (education) that is not going to diminish any time soon the union has chosen to deprive workers of secure employment. That is not a decision of the Labour party but a decision taken on behalf of the Unite executive.

It is right that questions about this conduct in union recruitment practices are asked. What is unfortunate however is that these question are being asked by right wing press barons (and here, unlike here, the term is appropriate) given the issues are raised by them as a matter of political opportunism and not the rank and file membership itself.

In Mr Reuby’s case Unite are defending the claim of unfair dismissal on the basis that he was not an employee. It is a defense that is certainly open to them to make legally, but the decision to pursue such a defense is morally questionable. A matter of days ago Unite published a review of Dave Smith and Phil Chamberlain’s Blacklisted (a review will follow here on Employment Writes soon).

Blacklisted tells the story of the scourge of blacklisting in the construction industry – there is a wealth of evidence that many construction companies sacked trade union representatives when they raised concerns or even when they first became known as a union activist. This affected many workers – when it became known that these companies had sacked their employees for raising concerns many of those affected, understandably, sought to lodge employment tribunal claims. One of the primary defense strategies these companies was to deny that the workers were employed but that they were ‘self employed’ or agency workers, if they are not an employee they do not have a legal remedy for unfair dismissal. It is the reason Dave Smith lost his recent Court of Appeal case of unfair dismissal. Following the outcome Dave Smith commented (and I entirely agree):

What is the point of employment law or the Human Rights Act? Even with mountains of documentary evidence and an admission from the company that they blacklisted me because I was a trade union member who had raised safety concerns, I still cannot win. This might be the law, but it is not justice.

The endemic use of agency workers, zero hours contracts, umbrella companies and bogus self-employment means that millions of workers are being treated as second class citizens.

The result of this tactic was that the overwhelming majority of those who submitted employment tribunal claims lost them because the courts found they were not employees because of their particular working arrangements. How disappointing then that Unite, who have made very positive moves in the anti-blacklisting campaigns and supported many of these claims have adopted the very same strategy and have sought to deprive workers of the right to legal remedy by contesting the fact that those who work for them on a continuous basis are in fact employees. This is especially the case since as a matter of policy (see 2014 Policy Conference motions) Unite are opposed to bogus self-employment. It may be that Mr Reuby’s claim is without merit and that Unite have not subjected him to any detriment for whistleblowing but the decision to seek to deny him a hearing is certainly questionable.

This is something members should be raising with their union executives with some earnestness with or without press coverage at election time.

PCS/Unite merger still alive, allegedly

Labour Uncut is reporting that the Unite/PCS merger is still a distinct possibility, and expects the NEC to put forward a motion to this year’s ADC. Here’s a snippet of the article:

PCS has been wracked by well documented financial problems. The sale of the union HQ, which was agreed at the union’s national executive meeting at the start of December, was meant to have placed PCS on a more sustainable financial footing.  But just days later, an emergency executive meeting was called for the 18th December.

With one hour’s notice before the meeting, executive members were given papers that included a proposal to suspend next year’s internal election. The reasoning was that the £600,000 cost would sink the union and delaying it by upto year would help enable PCS’ survival. The motion was passed but with no wider debate across the membership.

PCS insiders have taken this as the clearest sign that merger plans are being revived.

Few believe their leadership’s explanation that this is about cost. Why wasn’t suspending the election discussed as an option along side sale of the HQ? What changed in the week following the scheduled NEC meeting in early December? Many view the emergency meeting as a means to railroad the suspension of internal democracy, which in turn allows the core leadership to fast-track negotiations with Unite, unencumbered by the accountability of elections in 2015.

The power of the Socialist Party cabal at the top of PCS, and their desire to link up with their party comrades in Unite is viewed as the primary driver for merger. The financial crisis merely provides a convenient rationale.

Post-merger, the unified PCS and Unite contingent from the Socialist Party (SP) would take control of the left of the new union, building SP support, much in the same way that its predecessor – Militant – once dreamed of building out its support from the left of the Labour party, if and when the Bennites took over the leadership.

The expectation is that a merger proposal will be put to PCS’ annual conference in May, just days after the general election. The motion will likely be wreathed in warnings of imminent financial disaster (unmet pensions obligations, redundancies and insolvency) if it isn’t supported and, in an atmosphere of panic, passed.

Is there any truth in the suggestion? I have no idea but can’t say it would be a surprise if such a motion was proposed, although how the Standing Orders Committee would justify its inclusion would be interesting since there is already a clear position on the matter by ADC.