12 November 2018

By Sarah Glenister, National Development Officer, Institute of Employment Rights

Every autumn, for over a decade, employment law experts have gathered for the Institute of Employment Rights’ (IER’s) annual Employment Law Update — a chance to discuss the year’s developments in labour law, as well as consider future opportunities and challenges.

This year, our October conference in London and our forthcoming event in Liverpool were quickly oversubscribed.

It’s long overdue, but workers’ rights are finally at the forefront of public consciousness, with millions trapped in insecure work, concerns over increasing automation, and fears over the handling of Brexit. And it was these issues that dominated the debate at the IER’s recent Employment Law Update.

IER president Professor Keith Ewing warned that a wide range of workers’ rights will be made vulnerable when the UK leaves the EU.

While he did not foresee a bonfire of these rights, under the present government there could be a “passive regression,” with present-day protections becoming “fossilised” in the UK while they are progressed internationally.

In particular, there is the potential for UK trade unions to be excluded from European Works Councils, and if workers can no longer appeal to EU courts, justice may be harder to find.

Paul Scholey of Morrish Solicitors illustrated this risk as he updated delegates on this year’s case law, including Guler v Turkey, in which the European Court of Human Rights ruled participation in a May Day parade was protected trade union activity. Were a similar case to come before a UK judge, the same judgment would not be reached.

Ewing went on to warn there were further threats ahead in the shape of Free Trade Agreements (FTA), in which a precedent has been set of minimal workers’ rights that are enforced poorly.

He noted that parties to FTAs have frequently been in breach of International Labour Organisation (ILO) principles even at the time of negotiating and signing agreements.

But Brexit need not lead to the dilution of workers’ rights if it is correctly managed. Indeed, much research — including the IER’s report The Legacy of Thatcherism in European Labour Relations — has highlighted the shift of EU supranational structures towards an increasingly neoliberal bent.

Ewing noted that whoever is in government immediately post-Brexit will be the “architect” of labour law framework for generations to come, and if the political will is there, it would be possible to not only preserve but build upon the progressive rights associated with the EU without fear of these being undermined by political shifts outside our borders.

Turning its focus closer to home, the conference discussed the surge in unionisation in certain industries. Young people and insecure workers now make the headlines with protests and strikes, while university workers took unprecedented industrial action across the sector earlier this year.

GMB general secretary Tim Roache and the Bakers, Food and Allied Workers Union (BFAWU) president Ian Hodson discussed their success representing precarious workers, including GMB’s landmark victory proving Uber drivers are “workers” rather than “independent contractors” and BFAWU’s pioneering work in the McStrike movement.

Outreach through social media and community work, as well as using “like to recruit like” — for instance, having younger people unionise peers of their own age — have bolstered the recruitment of this historically difficult to unionise demographic.

But more needs to be done. Roache expressed support for transferable union membership to help support those in insecure work, and both trade union leaders discussed the importance of sectoral collective bargaining.

Social media was also pivotal during the UCU-led action at universities, Dr Jo Grady of the University of Sheffield explained. There it was employed to democratise information, educate strikers, and garner support.

As professor Alan Bogg from the University of Bristol highlighted, the labour movement’s recent successes are made all the more impressive by the restrictive laws they are contending with.

Updating delegates on the case law surrounding the Trade Union Act 2016, he raised concerns about the obligation to provide more information on voting papers, which could be abused by employers to obstruct industrial action through injunctions.

Fortunately, the case law as it stands is relatively positive, with courts backing union interpretations of voting paper requirements in cases brought by Argos and Thomas Cook Airlines.

Neil Todd of Thompsons Solicitors added that the regulations around “unlawful inducement” — the act of an employer deliberately undermining collective bargaining processes through negotiation with individual workers — are also one to watch.

In the case of Dunkerley v Kostas UK Ltd, the Employment Tribunal and Employment Appeals Tribunal agreed that the employer’s act of threatening workers with the withdrawal of their Christmas bonus if they did not accept an offer that circumvented the union was a case of “unlawful inducement.”

However, the employer continues to appeal the case and it will now be heard in the Court of Appeal.

Lastly, Dr Ewan McGaughey of King’s College London took on the looming advance of automation — a prospect fuelling fears of mass unemployment in many quarters.

However, McGaughey’s research found this concern to be unfounded. He pointed out that the same fearful narratives have been trotted out throughout modern history but have never come to pass.

Rather, he emphasised the role of social policy in protecting employment, just as it did in the post-war years, and supported a move towards employee-share schemes, inclusive ownership funds (non-tradeable shares in the company paid for through a tax on share dividends), and the rolling out of the IER’s recommendations to make workers company members as well as providing them with fair representation on pension scheme boards.

All experts agreed that the future of workers’ rights, whether they are challenged by trade agreements or by the rise of the machines, can best be protected through stronger trade union engagement.

Unions are adapting to the new world, as evidenced by GMB and BFAWU’s successes, but there is only so much they can do within the UK’s unusually restrictive legal framework. For the nation to prosper, we must see a change to the laws that support, rather than obstruct, trade union activity.

Originally published by the Morning Star