Tribunals or strikes: What do we do about victimisations? By Donny Gluckstein, EIS-FELA national executive (personal capacity)

15 May 2017

Tribunals or strikes: What do we do about victimisations?

by Donny Gluckstein, EIS-FELA National Executive and EIS Council (personal capacity)

It is half a century since the grandly titled Royal Commission on Trade Unions and Employers’ Associations met. Chaired by Lord Donovan Commission and sponsored by the then Labour government, it set out to stem class struggle through shifting the initiative from shop stewards to full-time officials and lawyers. This was designed to end rank and file influence in favour of legal processes, courts and tribunals. But the conflict between capital and labour is so fundamental that no state procedure can kill it off, and six years after publication (1968) gigantic strikes and occupations involving dockers, miners, and many more brought Ted Heath’s Tory government crashing down. Yet the Commission’s strategy survived and in the longer term has contributed to fewer strikes, consequently less understanding of what collective action can achieve, and falling living standards for the mass of the population. The latest Tory anti-union law takes Donovan’s legalistic approach even further.

Despite the decline in numbers of strikes employers still fear open confrontation with the workforce. So a more indirect and insidious method of attack is often used – the bullying or victimisation of individuals such as prominent union activists. Picking off individuals can serve to intimidate and demoralise employees in general.

A significant example of this occurred in 2013 at the giant Grangemouth refinery where a powerfully organised section were targeted. The Battle of Grangemouth, a book by the former Unite convenor, Mark Lyon, describes how management set out to victimise himself and the branch secretary Stevie Deans ‘with the clear intention of exacting revenge for the previous dispute of 2008. For me this is their “plot”.’

The Donovan Commission proposals facilitated just this approach. Prior to 1968 resistance to victimisation led to some 276 strikes each year and it came up with an alternative route: ‘statutory machinery to safeguard employees against unfair dismissal’ – in other words the Employment Tribunal system. This was instituted by Heath’s government in 1971 but the ‘safeguard’ is phoney. Of course there are occasions where sackings are overturned by Tribunals, and in this respect the arrangement is like a lottery. If there were never any winners the whole system would be discredited. But, like the lottery, winners are vanishingly small in number. Isolated favourable decisions in no way compensate for undermining the role of lay union reps (who are often the target of victimisation themselves).

For good reason the government no longer publishes figures for how many workers are successfully reinstated by Tribunals; but the statistics for 2010 – before the introduction of punitive fees brought a collapse in overall numbers even getting to court – are telling. The Institute of Employment Rights reported ‘only 1 in 500 successful cases result in a reinstatement or re-engagement order (0.19%), or about one in five thousand of all the unfair dismissal claims lodged.’ So of 49,600 claims in 2010 just six reinstatement orders were issued. Even these Tribunal decisions are routinely ignored. Typically only half of this tiny group actually get their job back.

This is where the similarity with the lottery ends. The lottery claims to raise money for ‘good causes’. With unfair dismissal cases at Tribunals the only ’cause’ is bosses’ profits as union organisation is weakened at minimal cost. Furthermore, everyone knows the odds of winning are low; but the odds of winning your job back at Tribunal are a closely guarded secret. Searching the internet for ‘unfair dismissal’ will turn up a multitude of lawyer’s firms offering their services, and a mountain of information detailing ‘your rights’. Statistics for reinstatement were near impossible to find and now have vanished completely.

That is not to say that Tribunal decisions on other matters, such as unpaid wages and equal pay do not have successful outcomes, or that the threat of a tribunal or publicity can be useful in restraining employers. There are also many committed labour lawyers who do their best within the constraints. But these mitigating factors also serve as camouflage for the far more important operation of asserting employers’ power of hire and fire. Union officials and lawyers are keen to point to financial compensation that may be won. Yet just 10% of unfair dismissal claims lead to a finding of unfair dismissal, and only half of these result in a payout. In 2016 the average was £13,851. This is nothing compared to successfully intimidating an entire workforce thus saving on things like the wage bill or health and safety.

The stages of the deception are worth following. What is, in effect, an attack on the union is instead treated as one person’s concern and the province of full time officials who hold the purse strings, and the lawyers they hire. Immediately the focus is on lodging a claim, gathering evidence, and legal technicalities. Often, to protect ‘the integrity of the legal process’ the victim is sworn to secrecy, further reducing any chance of a collective response which might win. The individual is no longer at work and the official union machinery is realistically wedded to obtaining ‘justice’ at Tribunal (e.g money) rather than reinstatement.

Grangemouth was a classic example. In a blaze of national publicity the leading trade unionists there were sacked, and although Unite members voted to strike they were ultimately blackmailed into submission, after which collective agreements for all were comprehensively trashed. In terms of recourse to the channels devised by Donovan Mark Lyon reports: ‘I am constrained from revealing the outcome of the process for legal reasons.’ The workforce loses as a whole, but the individual involved is often the most cruelly deceived person. The lottery does not disguise that its decision is the result of a random selection. The sacked worker is encouraged to believe ‘the merit of their case’ is decisive. Not only have they lost their job, but the false mirage of success is dangled before them and then, 4,999  times out of 5,000, abruptly whisked away.

However, there is an alternative to this travesty of justice. In October 2015 110 days of strike action forced the National Gallery to reinstate Candy Udwin. A month later swift unofficial action did the same for Sandy Nichol at the School of Oriental and African Studies. A glance at the industrial reports of Socialist Worker during 2017 shows numerous examples of trade unionists balloting for or taking action against victimisations. The 24 January edition, for example reported the reinstatement in Birmingham of Simon O’Hara after teachers struck for 11 days, the dropping of disciplinary action against Penny Gower after an 82% strike ballot at Edinburgh College, and a call by Peterborough postal workers for a ballot over two members facing disciplinaries.

In some workplaces union organisation may not be strong enough to deliver an effective defence, and here the very second rate Tribunal route may be the only alternative. However, the spectre that the Donovan Commission wished to banish lives on. Collective action to defend individuals targeted by management may not always achieve a 100% success rate, but the odds for working class solidarity are certainly better than one in 5,000.



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