Source > Tribune
As the RMT strike began, and viewers could see for themselves how effective the union has been in mobilising its members, the government responded with news that it had would change the law in order to make it harder for unions to win. At present, it is unlawful for agency employers to supply workers to take over the duties of striking workers. The agencies do not want to be used as strike-breakers, but the government insists that they can and will be.
It is remarkable how easily this government changes to the law to help bosses, and yet how hard they find it to change the law to help workers, even where they have promised to do just that. As long ago as December 2019, the government pledged in the Queen’s Speech to introduce a bill which would ‘enhance workers’ rights, supporting flexible working, extending unpaid carers’ entitlement to leave and ensure workers keep their hard-earned tips.’
The Bill was supposed to implement the findings of of the government-commissioned Taylor Report, which held, for example, that agency workers should have the right to request direct employment with their employer. That was never a generous policy; all that workers were promised was a right to ask. Even if it had been granted, employers would still have been free to say that it suited them to keep workers at arms’ length, and to deprive them of their rights. That promise was however widely reported in the press, earning the government favourable publicity, and presented as a pillar of the Conservatives’ plans to ‘level up’ Britain. Two and a half years later, it has been quietly dropped.
The reason why there had been a policy consensus at the top of British society in favour of offering agency workers something is that they are some of the clearest victims of the skewed nature of our employment law, which serves in all sorts of subtle ways to protect the interests of the rich. Up until 2006, it was the understanding of every lawyer in Britain that agency workers were (as their names suggests) ‘workers’ in employment law, meaning that they could claim unpaid wages etc. from the employer where they worked.
That year, however, the Employment Appeal Tribunal held that agency workers were not in fact workers in the normal sense. It held that agency workers have no rights in relation to businesses where they worked. If the employer does not pay them, they can sue their agency—they cannot sue the business where they are based. If they are unfairly dismissed, they have no rights at all.
It is grotesque that the government should expect agency workers to be used as a stage army to defeat striking workers, and doubly so when we think how the government has promised agency workers merely the weakest of all possible rights and failed to deliver even that.
But this pattern, in which rights are typically promised at exactly the same time that trade unions are attacked, is not a new one. It is in fact typical of how individual employment law has developed in this country, at every point, over the past fifty years.
This process goes back to the very establishment of the Industrial Tribunal (the forerunner of today’s Employment Tribunal). The Tribunal was introduced by the Industrial Relations Act 1971, which gave them the power to hear unfair dismissal claims. The Act was introduced by the Conservatives, not Labour. It was opposed by the trade unions. It was not passed as a result of workers raising their demands in ever increased volume until the state was obliged to recognise them. Rather, politicians sought to defeat a rising workers’ movement, and use the expansion of the law as ones of a package of measures all intended to weaken that cause.
The Act was intended to legalise disputes between workers and employers, requiring unions to register, giving registered trade unions and them alone immunity from being sued, and banning unofficial strikes. The Act also established a National Industrial Relations Court (NIRC), which was empowered to grant injunctions to prevent strikes.
Opposition to the Act motivated unofficial strikes, including those which led five dockworkers to be jailed at Pentonville prison for contempt of court. While the power of Tribunals to hear claims of unfair dismissal was a subordinate concern for critics of the Act, it was part of the story. As part of its opposition to the Act, the TUC instructed affiliated unions to withdraw their representatives from Tribunal panels.
Part of the reason for union hostility to tribunals was the way in which they were promoted as an alternative to strikes. Advocates of trade union power grasped that making the fairness of dismissals a test of legal power would disadvantage workers. Managers had deeper pockets than any union, would be able to afford more expensive representation, and could expect to receive greater respect from the Tribunal than any employee ever would.
The period when Tribunals grew fastest—between 1980 and 1999—was a period of neoliberal breakthrough. Government policies to reduce subsidies to the manufacturing industry, relocate employment from northern to southern England, and restructure the economy towards services all made redundancies commonplace.
Tribunals became a popular means to raise employee complaints since the alternative—strikes to prevent dismissals—seemed impossible after the defeat of the steelworkers in 1981 and the miners in 1984-5, and, crucially, as a consequence of anti-union laws which introduced measures like compulsory balloting and which put practical barriers in the way of striking.
Between 1980 and 1993, Conservative governments passed six Acts of Parliament, starting with the Employment Act 1980, to restrict unions’ power to go on strike. Picketing was restricted. Solidarity strikes were outlawed.
The United Kingdom has, in consequence of those laws, the most restrictive anti-union laws in Europe. Under them, the law provides only limited protection for a union against being sued by the employer for breach of contract, and even this protection is heavily circumscribed. The workers involved in industrial action are protected only if the purpose of the strike is industrial and not political, and if the union ballots its members and notifies the employer both in advance of the ballot and afterwards of its result.
Workers chose to take their cases to tribunals reluctantly, on the calculation that other and better routes to protect their conditions had been closed. It is possible to measure on a graph of the collapse of days lost to strikes between 1980 and 1999, and to draw alongside it the rise of the number of Employment Tribunal cases. The two lines intersect in 1989; before that year strikes were more common, afterward individual employment claims predominate.
Depressingly, the same pattern continued under a right-wing Labour government from 1997 onwards. Despite Labour’s huge majority, and despite the party’s continued dependence on union funds, Tony Blair refused to repeal the Conservatives’ anti-union laws. Almost all the things which socialists find contemptible about contemporary Britain—the ever-accelerating disparity of wealth between rich and poor, the power of the police, the powerlessness inability of protesters to successfully challenge the state—can be traced back to the industrial and political defeats of the 1980s, and our side’s adaptation to our own seeming weakness.
For all these reasons, the importance of this week’s rail strike goes beyond the conflict with the government. What we are seeing is the RMT overstepping the bounds of what has been considered for forty years the absolute limits of what any union can achieve. An astonishing eighty-nine percent of its members having voted for strike, the union has mobilised and closed the railways. Unsurprisingly, the union’s representatives come over well in interviews; they do so not because they are better briefed than other trade union leaders or wittier (although they are both of those things), but because they have behind them the mandate of the solid support of ordinary rail workers. For decades, British unions have been corrupted by weakness: we are seeing the first hints of the regrowth of collective strength.
This strike opens in the possibility of a different relationship not just been capital and labour but also between protest movements (including but not limited to unions) and the law. After all, if any worker wants to achieve a wage rise that keeps their wages in line with inflation, that cannot be achieved through the law, which offers workers no guarantee of any wage rise, still less one consistent with inflation. And what is true of wages, is true of life, more generally. Movements of the poor and the oppressed win victories because of our ability to mobilise our own numbers, not because the state has any long-term interest in helping us.
David Renton’s Against the Law: Why Justice Requires Fewer Laws and a Smaller State will be published by Repeater on 12 July.
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