Eloquent action at Holyrood?

Show the mother of parliaments the eloquence of action at Holyrood

The Tories have unleashed unprecedented attacks on workers’ rights over the last five years. And that was while they were propped up but also apparently hampered in their rights destroying agenda by their Liberal Democrat coalition poodle partners. Now, unfettered by the ineffective, and in any event unprincipled, coalition partners, things are going to get significantly worse over the next five years.

Their first Queen’s Speech has shown a very clear direction of travel. Put simply, David Cameron is out to kill individual, collective and union rights. It’s more than politics and policy. It is about the Tories deep held and utterly ingrained ideology – Cameron sees himself as out to finish off the work that Margaret Thatcher started and to consign unions to the history books.

In terms of defending worker’s interests, the questions that we face in the union movement today from a legal perspective are:

• firstly, what laws are left that provide any protection for workers?
• secondly, how can the remaining laws be used imaginatively to defend workers’ rights?; and
• thirdly, what legislation should the Scottish Parliament take forward to defend workers and strike a blow against the legislative onslaught of anti-union laws coming from Westminster (even if that will require an imaginative and robust use of the Parliament’s current powers under the devolution settlement, standing the employment and health and safety reservations)?

The key to using the law to defend workers’ rights has always been about placing the power to police, enforce and take action into the hands of the workers themselves and not to rely upon outside agencies. The Health and Safety Executive (HSE) may be very well intentioned but we know that its prosecution rates are extremely low. Only 0.5% of breaches of health and safety regulations result in enforcement proceedings being taken by the HSE. And, on the employment rights side, there are no police at all. That is why unions view union legal services as being one of our more fundamental weapons in the fight to protect workers.

Bad employers can be seen possessing the worst attributes of the main characters in the Wizard of Oz. Like the Tin Man, they lack the heart to provide a decent working environment for their workers because they care about them. Like the Scarecrow, they lack the intelligence to realise that a safe and secure workforce is a more productive workforce. And, like the Lion, they lack the courage to treat their workers with dignity and respect simply because it is the right thing to do.

Bad employers do have, however, one Achilles’ heel – their avarice. There is, therefore, one way to force change in a workplace, to make things safer and to make things fairer; and it is a way that the unions have always known about. It is to hit bad employers in the one place that it hurts – their pockets.

The simple fact is that notwithstanding any number of prior complaints or warnings, all too often it takes a compensation claim for an employer to change equipment, systems or practices to make a workplace safer. The fact that it took mass litigation to force employers to amend contracts of employment to provide for fair holiday pay also shows the power of taking legal action.

The Tories, of course, ‘get it’. That is why their anti-union legislative agenda has not only focussed on individual rights. Increasing the qualifying period for unfair dismissal and amending the rules on industrial balloting to make lawful strikes much harder is not enough in their pursuit of the death of unions. They know the importance of individuals, backed by strong unions, taking individual claims. That is why Section 69 of the Enterprise Act was introduced, leaving workers less protected than they have ever been for more than 120 years. It is also why they have attacked the funding of civil litigation through The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and the vertical and horizontal extension of the Ministry of Justice (MOJ) portal. It is finally, and perhaps most obviously, why huge, unequal and iniquitous lodging fees were introduced to the Employment Tribunal system.

So what is left? The whistleblowing legislation is one option. This fits the general bill in respect that the power to take action by whistleblowing rests in the hands of the employee. Certainly, some employers may fear that adverse media attention could hit them in their ‘Achilles’ pocket’ and we all know that a properly motivated campaign to bring consumer purchasing power to bear can be powerful.

Nevertheless, I do not think the whistleblowing legislation is wide enough, nor does it offer sufficient protection to the whistleblower. The legislation only covers ‘protected disclosure’ which, in turn, may only be made to a ‘prescribed person’. The Department for Business, Innovation and Skills (BIS) publish the list of prescribed persons and bodies. It contains a list of people to which certain types of information may be disclosed for the whistleblower to be protected. There are several difficulties with the model.

So, although the Act covers disclosure in relation to health and safety, it does not cover general employment rights. Further, the primary prescribed bodies are regulators such as the Health and Safety Executive. The rules empowering an employee to go to the press are convoluted and restrictive. Moreover, ultimately all that the whistleblowing legislation does is provide the means by which an employee that is dismissed by reason of whistleblowing can obtain compensation through the Employment Tribunal system. As I have already highlighted above, with lodging fees and other changes in the law, this will not necessarily be easy.

Accordingly, it is clear that we need legislative reform and, given the current political dynamic, that can only come from the Scottish Parliament for the benefit of workers in Scotland.

First, the Scottish Parliament must act to reverse the consequence of Section 69 of the Enterprise Act. This Westminster act removed fundamental rights given to every worker across Europe in the form of various European Directives on safety and health at work. The Scottish Parliament must restore those rights. A timid politician or perhaps one who wants to make the right noises but not actually take any action may suggest the Scottish Parliament does not have the legislative competence to act. I disagree entirely. Where there is political will, there is certainly a legislative way.

Richard Baker has consulted on a Bill that will provide an answer. The Bill does not specifically reverse Section 69 of the Enterprise Act nor does it refer to the UK health and safety regulations in any way. The Bill therefore does not relate to health and safety and, therefore, should not be taken to relate to a reserved matter. Instead, its purpose is to restore fundamental rights to workers under the European Union. As far as I am concerned, the Bill framed in that manner is within the legislative competence of the Parliament and the Scottish Government should move to adopt the Bill and take it forward with all due pace in light of the speed with which the Tories are pursuing their anti-worker agenda.

Second, there is the Employment Tribunal system. To describe the Scotland Bill that is currently being debated at the Palace of Westminster as a disappointment is an understatement of epic proportions. The Bill does not adequately reflect the Smith Commission and it does everything that it can to avoid giving the Scottish Parliament any powers which could detract from the Tories’ mission to destroy unions. Thus, in relation to Employment Tribunals, the Bill is no more than an enabling provision that will allow specific powers to be devolved through negotiation with the Scottish Parliament. The Explanatory Note states only certain aspects of Employment Tribunals administration will be devolved to Scotland. Worryingly, paragraph 243 of the Explanatory Notes says:

Therefore specific conditions may need to be included when a particular Tribunal transfers in order to ensure the operation of the functions of that Tribunal relevant to the delivery of the reserved policy remain consistent.

It will be readily seen that lodging fees could be presented by the UK government as a matter of ‘reserved policy’.

As far as I am concerned, the negotiations over the devolution of the Employment Tribunal system will be the first major test of the Scottish Government’s commitment to standing up to Westminster for workers in Scotland. It must fight to ensure that the entire administration of Employment Tribunals is devolved and, thereafter, act immediately to abolish lodging fees and then move towards more imaginative ideas being advanced in some quarters, such as creating and Employment and Equalities Court with a cost recovery regime.

We know the clear intention of the government at Westminster is to destroy unions. We have seen that it is willing to do far more than talk and is aggressively pursuing a course of legislation to achieve its goal. The Scottish Government is roundly regarded as committed to pursuing a progressive set of policies to protect workers and to stand up for working people in Scotland against Westminster. The time for talking at Holyrood is over and the time for action is here. The starting point must be to adopt Richard Baker’s Private Member’s Bill and fight for full control of Employment Tribunals.

Patrick McGuire is a solicitor advocate and a partner with Thompsons Solicitors. He is a leading campaigner for law reform and has worked with many campaign groups and trades unions over the years to improve our country’s health and safety record.