What should we do about the ACAS Code of Practice on Discipline at work?

This is a long blog post on a niche blog for people who care about workplace trade union organisation and the representation of workers so if you’re looking for amusing pictures of cats (or a contribution to the increasingly tedious and entirely unnecessary election for Labour Party leader provoked by the risible challenge of the utterly unconvincing Owen Smith) then look elsewhere. I want to think about what experienced trade union activists should be doing to shape Labour Party policy on workplace issues, knowing that the official structures which are supposed to enable this interaction are ossified beyond repair.

More than twenty years ago, as a (relatively) young Branch Secretary who was often representing workers at the Croydon tribunals, I was invited to the party to mark twenty five years of the London Region of the Advisory, Conciliation and Arbitration Service (ACAS). Since I was not then (as I am not now) in the exalted position of being sent by UNISON to the annual gathering of the Trades Union Congress (TUC) I wasn’t used to an event with free wine and got a little inebriated.

Although I knew that ACAS was part of the state apparatus and that the state exists to perpetuate the conditions for profitable capital accumulation I nevertheless knew that ACAS was a not unhelpful creature for workers, and not only because in those days there were many admirable Conciliation Officers who were themselves good trade unionists. ACAS was part of the institutionalisation of the balance of class forces in the 1970s and of the attempt to divert the otherwise uncontrolled (and "unofficial") workplace power of organised labour in the workplace into formal channels, which neither Barbara Castle with “In Place of Strife” nor the Heath Government, with its Industrial Relations Act , could achieve, but the Wilson/Callaghan Government achieved by establishing novel statutory rights for workers, to be enforced by tribunals which would be guided by Codes of Practice produced by ACAS.

In those days the ACAS Code of Practice on Discipline at work was a very useful tool in representing members at employment tribunals – and by extension in internal disciplinary hearings. Paragraph 3 specified that workers should know what they might be disciplined for and paragraph 8 emphasised that it was particularly important that workers knew in advance what might count as gross misconduct. I cannot count how many times I referred to those paragraphs in the 1990s to fend off employers attacking individual workers. The latest version of the ACAS Code of Practice on Discipline bears the marks of decades of restricting “red tape” and is of far less use. Even this attenuated code does not apply to sickness dismissals, which are increasingly common.

Employers in 2016 have far too much discretion in how they treat employees and - as trade unions have retreated from a proactive approach to tribunal representation to a defensive approach which is motivated more by a desire to limit our professional indemnity premiums than by a commitment to members’ rights – we cannot rely upon the official structures of our movement to do much to try to police the conduct of employers (just at the same time as our unofficial strength has been limited by declining membership density).

When I was able to represent UNISON members at employment tribunals I took the approach of taking to the tribunal every case where one of our members had been dismissed against their will by our main employer. This proactive approach could sometimes get UNISON into trouble (although not with the Council who never got costs awarded against us in any case I was dealing with).

The knowledge that we would take the most marginal cases to the tribunal kept the employer on their toes when it came to complying with their procedures in every case. Now that employers realise that trade unions won’t take marginal cases to tribunal they are really under very little pressure to comply with their own procedures in such cases, even where those procedures are collective agreements incorporated into the contracts of employment of their employees. Since we now have a growing cohort of full time officials who have never led a strike and never taken a case to an employment tribunal, and are trained to believe that the purpose of a trade union (other than to recruit members) is simply to ensure that our members receive their legal rights, we need to think a bit about how to increase those rights if we are to give purpose to the future working lives of our own union employees.

The approach to trade unionism which sees it as about enforcing legal rights is utterly worthless to the majority of UNISON members who work for public sector employers who recognise trade unions, where any UNISON branch worth our salt will have ensured that our members enjoy rights through contractual procedures which exceed any statutory minimum. It is also of little value to the growing minority of our members working in the barely regulated private sector (whose legal rights are often so minimal as to be barely worth enforcing). Our legal rights (as part of the superstructure of society) recede as our organised strength is dissipated in the workplace (the economic base).

The Labour Party’s Workplace 2020 consultation invites us to say what we think should be done – and I think we should be proposing a return to a far more prescriptive ACAS Code of Practice with greater statutory force – perhaps there should be a statutory minimum disciplinary procedure which applies in the absence of an alternative contractually agreed procedure (and sets a floor for the rights of workers below which an alternative contractual procedure cannot go)? (I’m suggesting something much more than applied briefly in the last decade).

Such a procedure could also cover sickness (and capability) dismissals as well as conduct dismissals, and dismissals which occur after an employer has failed to follow the minimum requirements of a statutory procedure could be deemed automatically unfair (perhaps with a guaranteed minimum level of compensation in such cases). If the introduction of such a statutory minimum procedure accompanied (as it should) the introduction of employment rights from day one then it should probably include – or also be accompanied by – a statutory minimum procedure governing probation periods and probationary dismissals.

I don’t want to leave the business of responding to Workplace 2020 to the official structures of our movement. I think that those of us who have been at work in the workplace over the last generation of retreats and defeats should be thinking through and spelling out what we want to change in order that our children should have a better working life. I am thinking of drafting a model disciplinary procedure to be given statutory force if and when we get a Labour Government worth having.

Am I alone in wanting to do this?

Demonstrate to defend our libraries

My at am indebted to John Burgess of Barnet UNISON for drawing to my attention the message below sent from Barnet’s Libraries Convenor to the national Union urging support for a national demonstration in defence of libraries which has been set for November – I understand that there will be a planning meeting in London on 10 September.

Since 2010 we have lost a fifth of all jobs in local government, and local government workers have lost a fifth of our real income. The offices of the country’s major public sector trade union really should be the throbbing heart of a ceaseless battle to defend public services. We should be mobilising grassroots campaigning in defence of libraries, housing services, social care services and reaching out to every campaign in defence of public services and our welfare state (or what’s left of it).

You might think we could be doing better.

You might.

I couldn’t possibly comment...

Anyway here is the request from Barnet;

“During the National Seminar for Library reps last June, other reps and I asked for support for local branches in defending libraries and library workers and that the issue needed to be fought on Regional and  National levels.  A publicity campaign  to highlight the value of libraries was discussed and ideas for how to do this were put forward.  Some other reps and I did discuss other activities  such as a London  or National rally.

However since your email below  we have heard  nothing of any concrete nature  being  organised by National UNISON in resisting attacks on Libraries.

Before and after the Seminar, I as part of Barnet UNISON delegations  have attended rallies and marches  in other London boroughs in support of library workers facing attacks on their jobs, pay and conditions. Reps and activists at these events call out for leadership and support from National and Regional UNISON.  

In Barnet  our   struggle against Library cuts has been waged for two years and is  ongoing.  Half of my colleagues in Barnet Libraries now face redundancy. They will be  (inadequately and unsafely) replaced by  volunteers and unstaffed, machine operated opening hours. We took three days strike action in June and National UNISON leaders did join and publicise  one of our picket lines, which we appreciate.  Similar attacks on Library Services are being carried out across the country, from Fife  to Sheffield to  Surrey. Yet this goes largely unchallenged in the national media, the BBC’s One Show championing of volunteer run libraries being a recent example.

This situation cannot continue if  public libraries  and library jobs are to be saved.  Because of this Library activists including myself have worked with other trade unionists  to organise a demonstration in support of our Service, Museums and Galleries in November.

I ask for UNISON on a national level to support and publicise this event.  First steps  would be to agree for the use of the UNISON logo on publicity material and for notification to be posted on all our Union’s publications including social  media.

I hope and trust that national UNISON will support this demonstration. The thousands of UNISON library workers deserve defending, the millions who use our libraries need championing.

  

For more information either contact me or see

https://www.facebook.com/events/282708008768589/

  

https://twitter.com/5thNovDemo

http://www.publiclibrariesnews.com/2016/08/fewer-are-taking-part-so-lets-have-a-national-demonstration.html

  

I look forward to your reply”

So do I.

Brixton I miss you

Whilst I am on leave, I can still see what is happening a stone's throw from my office. Therefore please forgive a somewhat parochial blog post;

http://www.brixtonbuzz.com/2016/08/the-heart-of-brixton-ripped-out-as-traders-are-evicted-from-the-brixton-arches/

After Brighton, Brixton is my second home - and the place where I have first lived, and then worked, for more than thirty years.

In Brixton I have been loved, hated, mugged, drunk and bored. Through those streets I have marched, demonstrated, ambled, strolled and ran. 

Almost every picket line I have ever stood on has been in Brixton - and through more than three decades I have been constantly engaged and entertained by the best bit of London.

The gentrification of Brixton is a genuine tragedy, as an influx of predominantly middle-class, predominantly white people bring "craft beer" and "small batch coffee" in their wake.

Lambeth is becoming a more and more unequal place in part because of this influx - and local people (including, but not exclusively, black people) are marginalised and pushed out by an influx of the soulless and the bland.

As a middle-aged, middle-class white man who has been part of Brixton for more than thirty years, I could weep for the loss of the vitality, diversity and energy which is being smothered by gentrification. 

The challenge which faces Labour in areas such as Lambeth is not just how to regenerate and develop the ‎economy, but how to empower the community. The challenge which faces the community is how to use the political vehicle of the Labour Party in the interests of the people the Party was created to serve.

Another dimension of what is essentially the same political challenge is the problem of how best to confront institutional racism in an organisation with a majority black workforce which has an increasingly white leadership.

I don't claim to have answers to the questions posed by this challenge, but I doubt they will be found over either a craft beer or a small batch coffee whilst watching the eviction of local traders.

Sent from my BlackBerry 10 smartphone on the EE network.

Workplace 2020 - make Labour policy

Whilst the Labour leadership election is rightly commanding a lot of attention, the policy of the Party (and of a future Labour Government) will not be determined by the election of a leader.

Indeed one of the issues which Party members need to address is how to democratise the cumbersome and opaque policymaking process the Party adopted in the 1990s. That is as important as arrangements for democratic selection of Parliamentary (and all other) candidates.

Right now however, the Labour Party is asking for ideas about how to improve our workplaces and our working lives through its Workplace 2020 campaign. For those of us in trade unions with relatively complex and slow moving policymaking machinery, the opportunity to engage directly in this exercise is worth taking.

We know that we face a Government determined more than ever before to hack away at workers’ rights – if we can help to shape the policy of the Opposition, and campaign, under the continuing leadership of the current Party Leader, in support of those policies, we will maximise our chances of resisting the attacks which will come upon us before any General Election.

The policy relationship between the trade unions and the Party exists generally at a national level, and the decisions which will be taken at Conference (and at the TUC) are of course important – however, Workplace 2020 is an opportunity for us to engage at a local level, and one which we should take.

Labour needs criticism and debate

http://www.l-r-c.org.uk/

I joined the Labour Party at the age of fifteen, going to meetings of the Labour Party Young Socialists (LPYS) at which I was (initially) the only person who wasn\'t a supporter of the Militant Tendency (as it then was). I learned to argue with people to my right and people who thought they were to my left.

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I learned that the Party was a contentious place, and that what it needed from its left-wing was consistent criticism as we tried to hold our leaders to account. The Party then had a socialist left-wing, engaged in political activity wishing to change the world, and a social democrat right-wing, whose focus was on winning and holding office in order to ameliorate the worst of the world around us.

We didn\'t then have a pro-market neoliberal faction, such as Progress is today, to use the Party as a career path for a caste of professional \'politicians\'. Nevertheless, we had vigorous debate and disagreement.

One of the greatest strengths of the Labour Left, in my opinion as a part of that strange political creature for more than a generation, has been our mistrust of leaders. We have a healthy desire to knock down those we have raised up, and an emphasis on accountability of the powerful which distinguishes us not just from the careerists in our own Party but from the \'democratic centralists\' (ostensibly) to our left, trapped in the various decaying remnants of twentieth century Leninism.

That is why I have not joined Momentum, an entity with no obvious internal democracy which is essentially indistinguishable from a fan club. The jury has to be out on the question of whether this top-down organisation is or will be part of the Labour Left. ‎It\'s not just that I justifiably mistrust some leading figures in Momentum - though I do. After all, I am arguing that the authentic politics of the Labour Left is founded, in part, precisely upon mistrust of leaders.

No. There are careerists and opportunists around Momentum as there are in all spheres of political life - and they are as vile there as anywhere - but a vibrant rank and file, informed and energised by critical thought and the proper veneration of disobedience and dissent, can hold such people in check. Our current problem is that we are failing to encourage such a rank and file and to honour dissent and disagreement.

‎The sometimes absurdly vitriolic recent online response to the slightly silly overstatement of \'pessimism of the intellect\' from Owen Jones is one expression of this problem.

Of course it is essential to choose sides right now in defence of Jeremy Corbyn\'s leadership of the Labour Party. Owen Smith is a completely fabricated construct of the corporate interests whose expression in the Party is generally through the thoroughly anti-working-class \'Progress\' faction. Loyalty to socialism and our class requires unequivocal support for Corbyn against Smith.

Such loyalty also requires constant criticism of Corbyn as a leader, as we would expect to criticise any leader. Whilst the nonsensical \'justification\' for the pathetic choreographed resignations of Shadow Ministers (that Corbyn\'s honestly critical support for the EU is somehow responsible for Brexit) is transparently absurd, that does not mean that the best Labour Leader of my lifetime should escape criticism for the stupid decision to \'rule out\' a second referendum on the UK\'s membership of the EU.

To say that there could never be such a second referendum is as daft as the silly \'promise\' of such a second referendum from Owen Smith (who knows, of course, that he shall never be asked to keep that promise as he will never even make it to Leader of the Opposition, let alone Downing Street). Since the reactionary decision to leave the European Union is contrary to the interests of the working class (and particularly threatening to migrant workers and all those who experience racism) Corbyn was wrong to rule out the possibility of reversing this. There is no principle of socialist political thought which states that a plebisicite must always be respected.

Thankfully, the policy of the Labour Party is determined by our Conference, not our Leader (not even Jeremy) and so socialists who believe that the exit of the UK from the EU should still be frustrated if possible can continue to support the socialist (incumbent) candidate for Leader.

Owen Smith (who did far less than Corbyn to campaign for the UK to remain in the EU and - in common with the \'coup\' plotters - failed to win those who elected him to support the policy of our Party and the TUC against Brexit) is a tedious irrelevance to working class people. No socialist or genuine trade union activist would waste a moment considering a vote for that corporate lobbyist.

However, whilst giving unequivocal support to Jeremy Corbyn in the current leadership election, the true Labour Left will continue to value criticism, debate and dissent and will prepare ‎to continue to argue hard for the interests of working class people and to hold to account all those whom we elect.

Even when we win.‎

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Sent from my BlackBerry 10 smartphone on the EE network.