Employment Rights must be a core issue for Labour

At last year’s Labour Party conference, GMB General Secretary, Paul Kenny, was correct to highlight employment rights in his speech, and to demand that it features prominently in the party’s manifesto for the general election.

The case for employment rights is not special pleading by the unions, it is a fundamental requirement for a just society that employers are not allowed to exploit their greater economic power to impose their will against the interests of the common good, and that individuals are protected from unfair and degrading treatment at work.

Recognition of the limitations of individualism is central to the distinction between liberalism and social democracy. Political equality gives everyone an equal vote, whether they are the CEO of a Fortune 500 company or a hospital cleaner. Political equality gives everyone the same right to set up a newspaper, whether they are a multi-millionaire media tycoon, or an unemployed single parent. Behind the legal fiction of an agreement between equal parties in an employment contract lies a huge difference in economic power.

Bad employers exploit that difference of power to promote the essentially selfish interest of shareholder value. At its most extreme we see examples like Sir Robert MacAlpine or Balfour Beatty who used an unlawful blacklist to deny thousands of construction workers an opportunity to work, on arbitrary grounds, or for insisting on basic site safety. GMB has also been involved in a prolonged industrial dispute with one of the worst of these blacklisting companies, Carillion, over the systematic bullying and intimidation of their mainly South Asian women workforce at Swindon’s Great Western Hospital.

But even away from these high profile cases, millions of working people, every day experience insecurity, stress and lack of dignity at work. Nor is this an issue that only affects the lowest paid: bullying is also common among managerial and professional staff; and lack of workplace rights and vulnerability to economic instability unites all of us in paid employment.

The Liberal ideological tradition rests upon individualism, and does not look behind the mask. As the liberal philosopher John Stuart Mill puts it:

“The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental or spiritual.”

The Liberals see organised labour and trade unions as just another vested interest, a force of conservatism, and a constraint upon liberty. Sadly, sometimes the same argument is used by people within the Labour Party.

In stark contrast, the mainstream values of our labour movement, both for good and ill, derive from the experience of collective organisation. Our values, the values of solidarity, of advocacy for the poor and disadvantaged, of fighting against inequality and privilege, are built upon the rock of the trade unions. If we are honest, there is also a strong ethical Christian tradition within labourism, from R H Tawney to Tony Benn that rejects the self interest of the liberal tradition.

The astute observation of RH Tawney is that liberty is related to equality. If freedom is defined as absence of restraint, then liberty promotes inequality, because the more powerful in our society have less constraints upon them, and the majority of the population will always be unfree. For Tawney, true liberty is the freedom to act positively for the benefit of the community, and being empowered to resist the tyrannical demands of the rich and powerful.

This is an important principle for the Labour Party to reclaim. The task of progressive government is to redress the imbalance of power, and to provide a framework of dignity and economic security for all citizens.

In advancing the demand for improved employment rights, we need to recognise that the period of voluntary collective bargaining that prevailed during the 1960s and 1970s is forever passed. Free collective bargaining was predicated upon the conditions of the long post war boom, and assumptions of economic viablity that no longer obtain, and were overturned by Thatcher’s revolution.

The union strength attacked by Thatcher was sectional, and the pre-entry closed shop often obscured low levels of member engagement. Added to which there were twin political crises of labourism, as the progressive social aspirations of the Croslandite traditional right were undermined by the economy, and the left adopted a programmatic approach that appealed to too narrow a section of the community to ever win a general election. What is more, as Eric Hobsbawm observed, there had been a fracturing of the shared experience of working class life that had hitherto reinforced class consciousness and solidarity.

The Thatcherite trade union legislation therefore occurred in a context where there had already been a substantial political shift, and change in social attitudes to trade unions, and a reduced interest in collectivity. In essence the Tory laws comprised legal restrictions on calling industrial action, interference in union internal governance, dismantling of statutory support for collective bargaining, and the end of the closed shop and the outlawing of solidarity action.

However, two things should be noted. Firstly that most of the restrictions were against collective rights, but despite some curtailment, most individual employment rights were left intact, for example, protection against unfair dismissal, protection against discrimination, equal pay, redundancy payments, time off for trade union duties, maternity leave and pay, etc. Secondly, the approach of the Conservative government was mediated by countervailing EU regulation and rulings of the European Court of Justice.

This meant that increasingly, workplace rights were individualised and underpinned by law, whether from Westminster or the EU, but also that the only people who perceived the law as being specifically hostile to trade unions were those already convinced of the merits of collectivism, while the law hampered their ability to demonstrate the advantages of collective action to persuade others. Increasingly individual union members saw membership as an insurance policy at work; and during the 1980s and 1990s a number of unions “modernised” to adopt a servicing model to meet this expectation, downplaying workplace organisation and professionalising case work.

The political trap set for the unions was that campaigning against the Tory laws was likely to be seen as special interest pleading, even among most trade union members. Furthermore, the shift in social attitudes and increasing reinforcement of individual employment rights by law made calls for “anti-union” laws to be completely scraped seem increasingly anachronistic.

There is no doubt that Tony Blair’s government failed to meet the expectations of many trade unionists in this area. Len McCluskey speaks for many when he writes

Thirteen years of Labour standing still on trade union rights has led the way for the Tory led Coalition restart their attack on employment rights just where they left off and we are moving backwards once again.

But the sense of betrayal is at least overstated, Labour did not stand still. Three major Acts were introduced, the Employment Relations Act of 1999, the Employment Act of 2002 and the Employment Relations Act of 2004, all of which made things better. It also introduced the Minimum Wage and the Working Time Directive, abolished two tier workforces and gave a statutory route for trade union recognition; it reduced the qualifying period for unfair dismissal (extending cover to up to 2 million additional workers); gave rights to workers on fixed term contracts against unfair dismissal, raised the cap for compensation for unfair dismissal; provided the right to be accompanied by a trade union official for grievances and disciplinaries; extended maternity leave and introduced paternity leave. It also brought in the Equality Act 2010.

What New Labour did was further reinforce the assumption that the law is there to provide individual protection; rather than rely upon unions to enforce improvement through collectivity. This has become the prevailing common sense in society, including among trade union members. Those unions who operate on a servicing model effectively provide affirmation of this assumption, and even unions adopting the organizing model still provide the day to day service to individual members, though they prefer to do so through workplace reps rather than union officials.

Of course, the Labour government failed to remove some of the unreasonable legal obstacles to effective trade unionism, particularly over balloting requirements prior to industrial action. It also failed to effectively extend rights against unfair dismissal and other legal protections to agency workers. An obsession with opinion polls, and triangulating around the preoccupations of swing voters in marginal constituencies, seems to have steered the Labour government away from doing the right thing, afraid that the Daily Mail would accuse them of being in the pocket of the unions.

But a more fundamental problem is that the last Labour government reinforced the assumption that the law is there to provide individual protection; rather than seeing the value of the legal rights being enhanced by negotiated agreements between management and unions to introduce and enforce improvement through collective bargaining.

The punitive new financial charges for Employment Tribunal claims introduced by the coalition government are deliberately calibrated to price justice out of reach. However, even before these recent restrictions, litigation over individual cases was a crude instrument. I know of one appalling employer who through a regime of terror inside the factory has simply intimidated any staff from pursuing their grievances.

Compared to the 1970s era when voluntary collective bargaining underpinned industrial relations, the modern expectation is for a legal framework of enforceable minimum standards. However, instead of relying only upon the punishment of transgressions through litigation, which accepts a culture of low expectations, the aim of government policy should be to encourage continual improvement through consultation and negotiation with trade unions.

Labour needs to adopt a bold approach of recognizing that every worker has a right to be treated with dignity. There will be no return to the era of voluntary collective agreements which prevailed before Thatcher and excluded the law from most aspects of industrial relations. But nor should we accept that a regime that relies upon litigation to enforce minimal individual rights is the best alternative.

Legally enforceable employment rights need to be underpinned by a presumption towards consultation, representation, industrial democracy and negotiation: this a fundamental necessity towards redressing inequalities of economic power, and aligning the priorities of corporations with aspirations of a better, more inclusive society.