It’s the hobbling of trade union power that’s permitted P&O’s actions
After 42 years of anti-union legislation, we urgently need a restoration of the freedom of unions to defend their members, argues LORD JOHN HENDY QC
THE piece in the Star on Saturday by my colleague Professor Keith Ewing outlined some of the shortcomings of the law and its failures to protect the 800 P&O staff dismissed in favour of cheaper crew.
It appears that an offer said to exceed the value of statutory claims has been made to the workforce with a limited time to accept.
If the deals are accepted, we may never know what arguments P&O might have raised to defend claims of discrimination on grounds of nationality if it is true that P&O has selected for dismissal only those seafarers who are resident in the UK on UK contracts with the company, the overwhelming majority of whom are likely to be UK nationals.
Likewise, we will be left wondering if P&O would have fought the inevitable claims for unfair dismissal.
Such claims would appear to be irresistible given the manner of communicating the news to the workforce, the apparent breach of union consultative procedures under the collective agreements (presumably incorporated into the contracts of employment), the lack of individual consultation, and a “legitimate expectation” of both collective and individual consultation in such a situation, and the breach of the TUPE regulations.
But the compensation payable is limited and P&O may well have offered to pay the maximum to each seafarer.
It is not known if the government will pursue a prosecution for failure by the company to notify the Secretary of State of collective redundancies, though the fine would be modest.
As Prof Ewing pointed out, all this has, no doubt, been factored in by P&O which will have cynically calculated the cost of disposing of its workforce in such a grotesque manner, a cost which it proposes to make good by exploiting new crew on worse terms and conditions.
Some have suggested that the government might amend the law, for example by increasing the maximum “protective awards.”
No doubt that would help. But it won’t deter employers who have calculated the cost of breaking the law and are prepared to pay it in the expectation of future profit. So much for the rule of law.
It is true, however, that the real problem here is the law. The fact is that 42 years of anti-union legislation have neutered the capacity of unions to defend their members.
The single most important law reform here is not increasing penalties for mass sackings without consultation but the restoration of the right to take solidarity action.
P&O ships need dockers, tug-boat crew, pilots, refuse disposal teams, revictualling suppliers and so on. These workers and their unions share the common outrage at what has happened. But, in this country, they are legally prohibited from taking industrial action in support of the seafarers. (Solidarity abroad may not be so constrained.)
Furthermore, the crippling balloting and notice provisions required before industrial action prevents unions from organising spontaneous industrial action in the face of dismissal without notice, dismissal by ambush.
Unlike many other European countries, the raft of anti-union legislation which began in 1980 (and continued last week with a new levy on trade unions) has also abolished virtually all the mechanisms which would have given some teeth to collective agreements, particularly at industry-wide level.
No doubt the unions’ legal teams will push every legal button they can. But what we really need is the restoration of the freedom of unions to defend their members.
That means the legislation guaranteeing the legal space, protected from injunctions and damages claims, in which to organise industrial action.
That is the only legal way to rebalance power at the workplace and give workers the leverage to resist tactics like those of P&O and to fight back against the all-out attack on the wages and conditions of the working class which is now being waged.
■ Lord John Hendy QC is chair of the Institute of Employment Rights, vice-president of the Campaign for Trade Union Freedom and president of the International Centre for Trade Union Rights.