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.

Priced Out

A letter signed by the TUC’s Frances O’Grady and Len McCluskey of Unite among others calls for the scrapping of Employment Tribunal Fees:

Since July 2013, when the government introduced fees for anyone taking their employer to an employment tribunal, there has been a huge drop in claims. This is denying workers access to justice – and in particular women with discrimination claims. Official statistics show an 81% drop in claims lodged between April and June 2014, compared to the same time in 2013. All types of discrimination claims, for which a fee of up to £1,200 is now payable, have fallen: the worst affected being sex discrimination cases, which are 91% down. Even “straightforward” claims for unpaid wages attract a fee of £390, which may, in some cases, be more than the amount sought by the worker.

Despite ministers’ assertions that the change was needed to prevent unfounded and vexatious claims, no evidence has emerged that shows the drastic decline is attributable to the falling of such claims. On the contrary, evidence gathered by the TUC, Citizens Advice Scotland, Citizens Advice (England and Wales), the Law Society of Scotland and the universities of Bristol and Strathclyde shows that workers with genuine cases are being prevented from lodging their claims simply because of their inability to pay the fees.

This effectively means that a growing number of unlawful employment practices are going unpunished. When ministers say it’s not right that taxpayers should foot the bill for employment tribunals, they overlook the fact that the workers bringing claims are themselves taxpayers.

The government is currently reviewing its fees policy. It must, as part of this process, conduct a full equality impact assessment highlighting just how the charges are affecting workers bringing claims relating to sex, age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, and sexual orientation. Workers’ access to justice cannot be guaranteed while fees remain in place. The government must end this unfair and inequitable policy by abolishing fees at the first opportunity.

I fully endorse the appeal. Whilst I think the early conciliation moves are broadly a good idea – despite in my experience central government employers showing an absolute reluctance to conciliate – the introduction of fees have been disastrous for workers. I have certainly seen individuals with good cases, who have tried to resolve matters internally but failed, be dissuaded from pursuing their cases.

But one of the notable omissions from the letter is Dave Prentis, General Secretary of Unison whose union has again lost its most recent challenge to the fees system because, in the words of Mr Justice Foskett:

For my part, I would anticipate that if the statistics upon which reliance is placed in support of this application were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an Employment Tribunal through lack of funds which would not have been the case before the new regime was set in place. However, that assessment has to be seen as speculative until convincing evidence to that effect is uncovered.

I am sure they knew what they are doing but I have too say i am extremely surprised Unison did not try to demonstrate precisely the type of cases referred to. In any case, leave to appeal has been granted, here’s hoping it will be successful.

Reference: Unison (No. 2), R (on the application of) v The Lord Chancellor [2014] EWHC 4198

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.