Thursday, July 27, 2017

UNISON's victory in the Supreme Court - and what to do with it

Regular readers of this blog over the years (Sid and Doris Blogger) will know that – as a former members of the National Executive of UNISON (and long standing Branch Secretary) I was never backward in coming forward with criticisms of my trade union when I felt it right to express these.

It is only right therefore to join the chorus of praise for UNISON’s having seen through to the Supreme Court its challenge to the iniquitous imposition of fees for employment tribunal claimants – and to celebrate the victory for our whole class won by UNISON in the Supreme Court judgement.

Lord Reed’s words are a pleasure to read and his demolition of the Government’s position is comprehensive and complete. The Supreme Court felt it had to educate the Tory Government about the importance of the rule of law;

“67.             It may be helpful to begin by explaining briefly the importance of the rule of law, and the role of access to the courts in maintaining the rule of law. It may also be helpful to explain why the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable.

68.             At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.

69.             Access to the courts is not, therefore, of value only to the particular individuals involved. That is most obviously true of cases which establish principles of general importance. When, for example, Mrs Donoghue won her appeal to the House of Lords (Donoghue v Stevenson [1932] AC 562), the decision established that producers of consumer goods are under a duty to take care for the health and safety of the consumers of those goods: one of the most important developments in the law of this country in the 20th century. To say that it was of no value to anyone other than Mrs Donoghue and the lawyers and judges involved in the case would be absurd. The same is true of cases before ETs. For example, the case of Dumfries and Galloway Council v North [2013] UKSC 45[2013] ICR 993, concerned with the comparability for equal pay purposes of classroom assistants and nursery nurses with male manual workers such as road workers and refuse collectors, had implications well beyond the particular claimants and the respondent local authority. The case also illustrates the fact that it is not always desirable that claims should be settled: it resolved a point of genuine uncertainty as to the interpretation of the legislation governing equal pay, which was of general importance, and on which an authoritative ruling was required.

70.             Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people.

71.             But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.”

On the back of this reasoning the Court has thrown out employment tribunal fees. Everyone who has paid them will have to be refunded. As importantly, this judgement is an authoritative rejection of the Thatcherite view that “there is no such thing as society” when it comes to the law.

The judges have explained that the value of our legal system is not a privately owned commodity of value only to litigants but a “public good”. The significance of yesterday’s judgement will only become more apparent with the passage of time.

This is a fabulous result, and our General Secretary was right, in his message to members yesterday, to single out for praise the members of UNISON’s legal team who fought this case to its successful conclusion.

Now that we have won this considerable victory our labour movement needs to consider how we use employment tribunals to try to defend workers’ rights.

Six years ago – before the introduction of fees – I was bemoaning (and explaining the reasons for) the decline in union-backed tribunal claims.

I explained what we had lost as follows;

“As late as the early 1990s when I started more than a decade of regular tribunal representative as a lay union official (or "jumped up shop steward"), it was quite normal for lay and full time union officials to appear as tribunal representatives - sometimes with employee relations specialists from what we used to call personnel sections representing the employers.

We could back a case if it felt like the right thing to do, or if we needed to show our members that we backed a popular or long-serving colleague, or to show the employer that we were serious about enforcing the procedures which we had agreed with them.

As long as we didn't pursue completely hopeless cases we ran no risk that our members would face an order for costs even if we lost - and since the employers knew we would challenge almost any dismissal in an employment tribunal they were always on their toes when it came to following procedures before any dismissal.”

Long before the threat of fees, the insidious spread of lawyers into the tribunals – and the growth of negligence claims against trade unions – had led us to the position in which we already found ourselves at the point at which fees were introduced (as I observed in 2011);

“Now we refer such cases to solicitors and - if they think that the case has sufficient merit and advise us accordingly - we instruct them to take the case (and the legal liability which goes with it). Members who have a good case get quality representation, but members with a marginal case are left to fend for themselves. In the way of things, sometimes those members win a case we wouldn't take, or get a settlement after we have had to refuse to represent them. Though those cases may be a tiny fraction of the cases we have to refuse, they are of course the ones of which other members become aware. This is bad PR for the union, but that isn't something that can now be taken into account in deciding whether to take a case to tribunal.

Although this change was marketed at the time as freeing up the time of officers and activists for organising, it doesn't do that. There is as much work in preparing a case for the solicitors as ever there was in doing it yourself. The benefit to the union is entirely about the cost of professional indemnity insurance.

We have lost so much more. We cannot bring marginal claims to enhance the Union's reputation (workers don't mind seeing us lose a marginal case if we fought it with intelligence and determination - and we can recruit on the back of the respect gained by having been willing to have a go).

We have lost the ability to back a weak case for a respected and long serving member, leaving us vulnerable to the perception that we abandon our own in times of trouble - and losing the enormous benefit that came from the employer knowing that every dismissal of a UNISON member would be challenged in an employment tribunal (in all the years I represented many members against my own employer in the employment tribunal they never got costs against us - and almost never even tried).

We have lost the ability to weigh factors other than the specific legal merits of the particular individual case when deciding which cases to support. For an organising union this is a tragic loss, since we cannot decide to pursue a weak (but not hopeless) case in order to advance an organising objective - nor can we weigh the detailed local knowledge of our representatives as to the likelihood of the employer giving ground ahead of a hearing.

Most importantly of all, our lay and full time officials have lost the experience of tribunal representation. Regular appearances in the tribunal meant that you had to keep up with case law - and that paid dividends daily in negotiations with management and in internal hearings. Union officials who knew they would regularly be advocating for members at the tribunal were forced to try to keep abreast of case law.”

It is more than ten years now since I represented a member at an employment tribunal on behalf of UNISON, and now that I am no longer a UNISON official I shall never do so again – but UNISON activists, and other trade unionists, need to reflect upon how our movement might make best use of UNISON’s fabulous victory in the Supreme Court.

UNISON took that case because it was right to do so (and it would have been right even if the Supreme Court hadn’t correctly seen how important this case was for the rule of law itself). UNISON took a risk, and took a case which might not have won, reasoning correctly that it was in the interests of our members – and that the reputational impact upon our Union would be beneficial even had we lost (but been seen to have fought).

As things stand, these sort of considerations cannot generally be applied by UNISON to the decision of whether or not to support a claim in an employment tribunal. That decision is taken based entirely upon a solicitor’s judgement of the legal merits of the case, informed by evidence and information collected by lay and full-time officials who themselves no longer have tribunal experience.

Whilst it is – of course – true that litigation is no substitute for organisation, the legal rights which we have (however inadequate) are valuable and worth enforcing (have a read, for example, of paragraphs 70 and 71 of the Supreme Court judgement). I hope that my friends and comrades on UNISON’s National Executive Council will take the opportunity of yesterday’s splendid decision to reflect upon the Union’s approach to employment tribunal claims.

It would be a shame if the increase in employment tribunal claims which may now be anticipated enriched a new generation of “no win no fee” solicitors, rather than being led by suitably trained and supported trade unionists and their lawyers.

Remember what happened when we won an increase in compensation for successful equal pay claimants…

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