A record year for strikes

The Office of National Statistics has recently published its latest figures around industrial disputes, one of the highlights being the record low number of days lost to strikes, with a similar low for other forms of industrial action.  So, does this trumpet the success of the Trade Union Act 2016?  In short, no.

To those of us involved in industrial relations the latest figures are unlikely to come as much of a surprise. The statistics around strikes have been running at record lows for a number of years now. What IS strange is that, unless they have a record of doing so, many employers remain reluctant to engage constructively with unions.  This often seems to their being wedded to views of the role and operation of unions that weren’t even that accurate in the 1970s, from whence they originate.  Indeed, if you genuinely want to communicate with your staff, the structure and training they can gain through a union presence can make the process significantly easier and more efficient.

So why have I attached a picture Charles de Gaulle airport? Well, mainly because French Air Traffic Control is virtually synonymous with “on strike”, and I was drawn to a recent article examining industrial relations in France and how it relates to the UK. An interesting factor in France is that union membership is only around 8%, meaning that it’s really only union representatives who join.  This phenomenon was examined in Economist magazine back in 2014:

…the real source of French union strength today is the statutory powers they enjoy as joint managers, along with business representatives, of the country’s health and social-security system, and as employee representatives in the workplace. Under French law, elected union delegates represent all employees, union members or not, in firms with over 50 staff on both works councils and separate health-and-safety councils. These must be consulted regularly by bosses on a vast range of detailed managerial decisions. This gives trade unions a daily say in the running of companies across the private sector, which accounts for the real strength of their voice.

So, in effect, people in France don’t join trade unions because they don’t need to, so long as there are enough people willing to act on their behalf.

Returning to the UK, there has been a long-term downward trend in unions taking strikes, one that was well established well before the Trade Union Act 2016 kicked in to make taking industrial action more difficult.  For the last several decades, unions have been adapting to increasingly exacting legal requirements to take industrial action, meaning it is still perplexing why the TUA 2016 was put in place at all (and it remains unclear if it is consistent with human rights legislation which enshrines the right to withdraw labour).  Unions’ main approach has been to become more effective at influencing, better prepared to be persuasive negotiators and of more constructive value to employers that are prepared to engage constructively with them.

I’m currently working with several clients, some of whom face difficulties engaging collectively with their workforce because they lack representative structures, and others that simply want to improve how they interact with their unions to the benefit of everyone in the company.  The common theme is that, if you want to avoid disagreements with your staff, discuss things with them substantively and discuss them early and, ideally, draw out any ideas they can add.  The better people understand the problem, the better they will understand the solution.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Are you dying to go home?

An accident waiting to happen? Every year more people are killed at work than in wars

 

28 April each year is International Workers’ Memorial Day (#IWMD18 #IWMD2018) so, for 2018, it falls on Saturday.

It’s hard to believe that the world of work is still so dangerous.  Many of us underestimate the risk of the things we do each day. How many people in the UK treat driving along the road as the single most dangerous thing they do?  Yet every day 5 people die doing just that.  The same goes for many of the activities we do every day at work – lifting and carrying heavy boxes, walking up and down stairs (especially while talking on your mobile phone), etc.  There’s a long list of things we all do in our working day, often without thinking, that are significantly more dangerous than we ever give them credit.

Some people describe taking precautions to prevent such activities from injuring people as “health & safety gone mad”.   However, that view disrespects the aim to make sure people go home as healthy as they were when they arrived at work.  In spite of those measures, 142 people in the UK still died after going to work in 2014/15.  Even more worrying are the estimates of 13,000 people dying each year because of past exposure to harmful conditions at work, 8,000 people dying of occupation-related cancers and 4,000 from exposure to dust, fumes or chemicals.  And that’s in the UK where we’ve had the Health & Safety at Work Act in place since 1974.

According to the International Labour Organisation (ILO), across the world:
  • Each year, more than two million men and women die as a result of work-related accidents and diseases

  • Workers suffer approximately 270 million accidents each year and fall victim to some 160 million incidents of work-related illnesses

  • Hazardous substances kill 440,000 workers annually – asbestos claims 100,000 lives

  • One worker dies every 15 seconds worldwide. 6,000 workers die every day. More people die whilst at work than those fighting wars.

International Workers’ Memorial Day is a reminder not to be complacent, to avoid seeing common sense anticipation of ‘accidents’, and taking steps to stop them from happening, as an unnecessary imposition.

IMWD also provides an opportunity to reflect, to remember the people in the UK and across the world who have died trying to support their families and possibly to attend one of the many events to mark the Day across the country.

 

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

International Women’s Day – is it needed?

Grand Canyon

Today is International Women’s Day, so I thought it was timely to reflect on perceptions of women’s place in UK society.

 

A recent survey published by Sky News has suggested that a majority of Britons think that feminism has gone far enough.  But has it?  There are clear contradictions within the findings: 70% of people think men are paid more than women for the same work; 65% believe a man will be favoured over an equally qualified woman, yet:

a total of 67% of Britons think feminism has either gone too far (40%) or gone as far it should go (27%)

Perplexingly, women themselves are almost as prone to thinking that enough is enough, with 61% either thinking feminism has gone too far (35%) or has gone far enough (26%).

Whether or not this recent finding is a manifestation of the increasing refrain of “PC gone mad” is a matter of speculation, but it is disappointing that attitudes seem to be so at odds with reality.

That said, some progress is being made – UK companies employing more than 250 people now have less than a month until they have to report their gender pay gaps, which I suspect will leave many scrabbling to reach some kind of balance.  Others may, as has been done for many years, identify that a small or reducing gap means that enough is being done.

Yet, while the gender pay gap is widest for the over 40s, alarmingly the gap for people in their 20s has been increasing, so there really is no room for complacency.

 

Article 23.2 of the Universal Declaration of Human Rights states:

Everyone, without any discrimination, has the right to equal pay for equal work

The UK signed up for that 80 years ago this coming December, passed the Equal Pay Act in 1970, and pulled other discrimination together in the Equalities Act 2010, yet we still don’t seem able to deliver the non-discriminating, fair society to which those commitments aspire.  Everyone has a value, and everyone should be respected.

The sad thing is that 110 years since its origin in the USA, there is still a need for International Women’s Day because, while the UK is significantly better than many countries, we still have a very, very long way to go until women are truly treated as equals in all aspects of society.

 

Good Riddance to Employment Tribunal Fees

Well, it’s been a long time coming, but the Cameron Government’s decision to charge fees for people to raise claims in the Employment Tribunal has finally been shown to be illegal.

Created with Nokia Refocus

In a landmark ruling, the Supreme Court has ruled that charging people up to £1200 so they can challenge the legality of their employer’s actions is illegal.

Fees were never introduced in Northern Ireland, and it is notable that there was no drop off in the number of applications to go to their Industrial Tribunal.  Meanwhile, across Great Britain, ET applications plummeted by 70%.  In Scotland, the SNP Government stood for election in 2015 with a pledge that, as soon as they had the power to do so, they would legislate to remove Employment Tribunal fees, justifying this on the premise that someone who has just unfairly lost their employment is unlikely to be able to find the money and will, therefore, be denied access to justice.

Introduced in 2013, fees were initially justified as being to reduce the number of “weak claims”, though a financial incentive later became apparent with the Justice Minister at the time stating

We want people, where they can, to pay a fair contribution for the system they are using, which will encourage them to look for alternatives.

That case was never particularly convincing and the result, inevitably, was that many people with a valid claim were unable to bring it because they couldn’t pay the fee.

Alongside the fees, the Cameron Government also introduced mandatory Early Conciliation.  This is a process whereby the parties, with facilitation by ACAS, can try to reach an out of court settlement and is something applicants have to do before they can complete their ET application.  Although there’s nothing wrong with this in principle, my experience of it wasn’t good.  I have found few employers prepared to negotiate towards a settlement, preferring to gamble on whether or not the applicant could find enough cash for the fee.  Perhaps, with fees now found to be illegal, there will be a greater incentive for all sides to take a more pragmatic, conciliatory approach.

Dave Prentis, the UNISON General Secretary, welcomed the Supreme Court ruling saying:

The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.

In this context, the positive role of trade unions shouldn’t be underestimated, and not just because it is through UNISON’s expertise and persistence that this ruling has been achieved, but more locally and practically as well.  A well-trained union rep can defuse and head off the vast majority of cases referred to them, most often through facilitating a pragmatic solution, sometimes through persuading an individual that their case doesn’t stack up.  As an example, this leads to a significant reduction in the number of cases going to grievance, and those that do proceed tend to be much better presented.  This is something that many employers could easily miss.

That principle also filters through to ET applications.  Unions take great care in presenting cases, cases they support are exceptionally unlikely to be regarded by the Tribunal as “malicious, vexatious or frivolous” or “in bad faith”, and a significant proportion are successful.

Of course, most trade unions opted to pay these fees for their members, but many, many people who weren’t in a union must have been denied access to justice by this ill-conceived policy.  While it is likely that those who applied to the ET will have their fees repaid, at this stage it seems likely that those who couldn’t afford the fee at the time will have missed their opportunity, but it remains to be seen if any pragmatism will be shown in that respect.

 

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Taylor Report on Employment – where now?

 We (OK, a few of us) were on tenterhooks waiting for the publication of the Taylor Report into employment practices in the UK, but will it make things clearer or further muddy the waters?

Uber, Deliveroo and Pimlico Plumbers have all been answering legal questions about the legitimacy of a business model that sees them, and other companies, claiming the people work for them are self-employed, so they don’t have to pay Employers’ National Insurance, pension, holidays, sick leave, etc., as their competitors do.  At the outset, Taylor commented that there were areas into which he wasn’t tasked to delve (tax & National Insurance, for example), so it hasn’t, perhaps, been the free and open review that had been called for by many.

There are, however, several aspects that are unlikely to go down well with factions of the Conservative government.  Speaking in May, Taylor said:

“As we encourage people to vote . . . to inform themselves of issues, to volunteer in their community, is it defensible to say that for eight or more hours a day they should accept being ignored, denied information, treated as mere cogs in a machine?”

That could easily be interpreted as a call to reverse moves by the Cameron Government to apply cumulative restrictions to the ability of trade unions to provide that voice.  It could also be that Theresa May’s surprise decision to announce in November:

“…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” 

might actually come to fruition, though there has been precious little mention of the radical reforms of employment law mentioned in the run-up to the general election.

However, it also suggests that implementation of the Information and Consultation of Employees Regulations 2004 (ICER) hasn’t had the impact that it could and should have had.  Certainly, many trade union activists viewed ICER with suspicion, partly because merely informing and consulting can achieve relatively little without scope for negotiation. Similarly, some employers saw it as a way to prevent unions from getting access to their workplace.  However, those opinions have been changing over time, as demonstrated by the TUC’s “Democracy in the Workplace” report from 2014.  There is considerable evidence that employers that actively engage with their staff are more successful than those that don’t:

“Happy and productive people equals growth” (ACAS)

Many were calling for a simplification of the categories, preventing confusion over whether people are employees, workers or self-employed: instead, Taylor seems to be recommending that a further category is introduced, that of “Dependent Contractor”, something more than self-employed, clearly less than a worker, but that is presumably intended to level the playing field.

Quite how the Government will react to the findings is, frankly, anyone’s guess, especially with the level of distraction coming from Brexit, May’s increasingly slender majority, rumoured challenges for the Tory leadership (and, hence, the job of Prime Minister) and Labour apparently surging ahead of the Conservatives for the first time since the General Election, it’ll be a real surprise if they turn to this as a matter of urgency.  But it is the response of Government to these findings that will determine whether or not they make a positive difference for employers and those they employ.

Instead, attention will again be drawn to Uber’s fortunes in the Employment Appeals Tribunal in September.

From where I’m sitting, one answer is in the hands of every employer; improve your working relationship with your staff and, in turn, make the business more productive and more profitable.  That’s an area where I would certainly like to help.

I’d be interested to know your thoughts on the issues raised in this article, so please leave a comment or, if you’d like to discuss anything more directly, please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Back to the Future as wages are predicted to stay in the past

In spite of political insistence that the economy is recovering, and has been for a good while, this week the BBC’s Economics Editor has predicted that wages are likely to stagnate for a good while longer.

That conclusion isn’t really a surprise, but it will be a disappointment for many given the extent to which pay has been eroded over recent years – this report from 3 years ago pointing out that real-terms pay is stuck in a time loop at 2004.

“But pay rises haven’t been worse since the Napoleonic wars”

The Office of National Statistics’ Annual Survey of Hours & Earnings isn’t complete for 2016, but many of the draft results don’t make happy reading as far as pay growth is concerned:

  • Adjusted for inflation, weekly earnings increased by 1.9% compared with 2015, an increase due to a combination of growth in average earnings and a low inflation (more on inflation below).
  • Weekly earnings rose 2.2% for full-time workers, 6.6% for part-time workers.
  • The gender pay gap for full-time employees was 9.4% (the gap has hardly changed over the last six years).

Indeed, if you look at the cumulative impacts of pay restraint under successive Governments, the 2008 economic crisis and the seemingly never ending austerity that has followed, some public sector workers may only have seen a real terms pay increase in their lifetime if they have managed to get a promotion – and many have only done so because inflation was so low in 2014/15:

“The gross wages of the median Scottish worker are £1170 lower than if wages had kept pace with CPI inflation since 2009.”

…and that’s before you get into the debate about whether CPI, currently 2.6%, is a reasonable measure of the increased cost of living (most trade unions and many commentators prefer to use RPI, currently sitting at 3.5%, as it includes housing costs).

 

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787

Trade Unions face big new fines

Trade Unions face big new fines

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Sneaking past the radar, under cover of Brexit, the Government is running a number of consultations, including ones around the Trade Union Act 2016 and Corporate Governance. The Corporate Governance review deadline has passed, so the gathered information is now being collated and interpreted, but other elements are still in play. The consultation that caught my eye was consultation on the Certification Officer’s enforcement powers. This will introduce significantly tighter rules on the election for senior positions, vetting of candidates and the management of political funds, with unions facing fines of up to £20,000 if they breach those rules.

As is often the case, there’s a stick for when things go wrong, but no carrot to encourage a more positive approach to be deployed. The consultation in process doesn’t seem to be leveling the playing field so much as presenting another set of hurdles for unions to jump in order to be effective in representing the voices of their members.

Only last November Theresa May stated “…we will shortly publish our plans to reform corporate governance, including … proposals to ensure the voice of employees is heard in the boardroom.” at the CBI Conference. She backtracked pretty quickly, and the concept that staff have a valid (essential?) voice in the successful governance of businesses and charities was diluted in the document that was published, but it was still there. There is, therefore, an opportunity for employers to provide a channel for that voice.

And all of this comes at a time when strikes are at close to their recorded low – to quote from the Office of National Statistics report UK Labour Market: Mar 2017:

“The number of working days lost are at historically low levels when looking at the long-run monthly time series back to the 1930s.”

Yet, while CEOs across the land still proclaim their staff to be their biggest asset, most still decline to draw on staff knowledge of the business, the problems it faces and many possible solutions.

I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Trade Union Act looms large…

This extremely useful summary by David Morgan at Burgess Paull of the upcoming changes through the Trade Union Act caught my eye, and brought to mind some of the key issues surrounding the Act.

The existence of this legislation in the first place is a bizarre piece of ideological policy making, since it certainly isn’t/wasn’t responding to an actual need. To quote from the Office of National Statistics:

“The 2015 working days lost total (170,000) is not only lower than the total last year, but is the second lowest annual total since records began in 1891 (the lowest was 157,000 in 2005).”

As well as being of questionable need, the legality of the provisions has been questioned in many quarters, but most notably, perhaps by the Governments own Equality & Human Rights Commission. In January last year, the EHCR warned that the provisions may breach international law, stating:

“As it stands, the Trade Union Bill is in danger of imposing potentially unlawful restrictions on everyone’s basic human right to strike. Joining a trade union and peacefully picketing outside workplaces is a right not a privilege and restrictions have to be properly justified and proportionate.”

Although some changes were made before the Bill passed into law, research compiled by the Industrial Law Society suggests that these did little to address concerns in relation to human rights. If this latter article is correct, although we might have expected to see a number of challenges under Article 11 of the European Convention on Human Rights should employers opt to assert the new laws, these cases will be difficult to build and therefore may not emerge. Most of the large unions seem to be focusing their efforts on getting better organised, while experience shows that they will adapt to the new legal framework in spite of the additional inconvenience.

Interestingly, and in stark contrast to the Whitehall position, the Scottish Government announced in November 2016 that it was creating a Trade Union Modernisation Fund “to support modernisation of trade unions and help mitigate the negative impacts of UK legislation.” In that context, it will be interesting to see if there are differences of approach north and south of the border once the legislation has been enacted.

Of course, I’d be interested to know your thoughts on this subject, so please leave a comment, but if you’d like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

Disciplinary Penalties: You’ll Have Done Your Time?

This is an interesting one.  An  Employment Appeal Tribunal has recently ruled that an employer acted fairly in dismissing someone while taking into account a number of disciplinary issues that were, according to their procedures, ‘spent’.

The case is an extreme one, with the employer having taken 18 formal actions against the individual over a 12 year period.  The employee then did something that carried a mandatory final written warning.  However, the employer decided that the previous disciplinary record, in spite of all penalties having expired, should be taken alongside the latest misdemeanour, leading to their deciding to dismiss the individual.  Most Disciplinary Procedures are quite clear on how long a warning will remain on an individual’s personal file, and most employees will assume that, once that time has passed, they no longer need to worry about the record. There are, however, policies that say a record can be kept longer (even indefinitely) for a range of purposes – possibly the most common being to use as a deciding factor in a redundancy situation, but there are others.

For years, I’ve advised people to make a Data Subject Access Request for their personal information once they’re clear of the penalty, so anything that should no longer be on their employment record will be removed, just in case they get taken into account in any future situation (e.g. redundancy).

One of the problems is that very few companies have the resources to be meticulous about keeping their staff records (or their other filing) absolutely up to date.  The result is that, even if the policies say nothing, records of things that have happened years ago can remain on the file to be seen by whoever next needs to access it.  If that happens to be for a future disciplinary, is it reasonable to expect an investigating officer to ignore that information once they’ve read it?  They may try hard not to consider it but, subconsciously perhaps, they now know this individual has a history.

Even if that history has no relevance to current circumstances.

 

I’d be interested to know your thoughts on this subject, so please leave a comment. Alternatively, if you’ve been affected by a similar issue and would like to discuss this topic more directly please contact me at malcolm@strathesk.co.uk or give me a call on 07736068787.

 

Lidl v GMB – what’s going on?

food-healthy-vegetables-potatoesLast weekend there were news articles about Lidl’s decision to appeal against the ruling that they should recognise GMB union at their Bridgend depot – but why?

The story is reported on the GMB website, which handily also includes Lidl’s statement on the issue.

A significant majority of staff at Lidl’s Bridgend depot indicated that they wanted to be represented by a trade union in negotiations with the company. Lidl’s response was to reject the request for recognition that came from GMB. This was referred to the Central Arbitration Committee, the body that decides the outcome in such situations, who ruled that the union should be recognised. Lidl’s response has been lukewarm, with reports suggesting they are now going to appeal to the Court of Appeal against the CAC decision.

Setting aside the specifics of Lidl and GMB, the question then arises – why are so many employers hostile to unions?

Workplaces that have a union present have significantly better H&S records than those that don’t, they can access all sorts of training for their staff (union reps and members can access training through their union or STUC and TUC education programmes, as well as wider education through UnionLearn projects, etc.) that they would otherwise have to pay for. Being a representative is also a great way for staff to be exposed to responsibility and authority that would never occur in their day job, so there’s a good chance to see what they can do.

Aside from that, it helps meet obligations under the Information & Consultation of Employees Regulations that may otherwise be both problematic and ineffective.

So, with so much to gain, what is it that makes employers so reluctant to engage with trade unions?

Interestingly, around 70% of FTSE 100 companies recognise unions, so it can’t be THAT damaging to the bottom line.

History is a big factor – many, many employers (and workers) still view the union movement as a behemoth from the 1970s. But unions have changed, forced to evolve and adapt initially by legal changes through the 80s and early 90s, latterly by a drive to become more effective at representing their members in the rapidly changing world of employment. Before the last government decided to raise the hurdles for workers to take legal industrial action, it had already become a rare event – 2015 was the second lowest annual total for working days lost through strike action since records began in 1891 (the lowest was 2005).

There are costs – rates of pay in unionised workplaces are higher, and ensuring your workforce is safe and healthy takes investment, but more competitive pay also means they are more likely to attract better candidates when they advertise jobs, and it’s a good thing that people go home after work as healthy as they were when they started, so there are swings to those roundabouts.

I have long been a believer that the objectives of any workforce largely align with those of their employer – success for the company is in everyone’s interests. Hence my work to help and encourage employers to find the most effective way to interact with their employees to improve the company for whom everyone is working. Given the insights they have into the various levels and structures of your business, staff represent a valuable resource from which to better inform your next big decision. That doesn’t change because the staff want to be represented by a union.

However many people you employ, if you’d like help in improving the way you interact with your staff, whether or not there are unions involved, please get in touch – it could be the start of a new future for your company.  If you’d like to know more about the services offered by Strathesk Resolutions, please e-mail contact@strathesk.co.uk or call Malcolm on 07736068787.