It seems that the government wil implement Adrian Beecroft’s recommendations in some form (see previous post) and remove or reduce the right to claim unfair dismissal. Conservatives are keen on the idea and, according to the FT, want to do a deal with the Lib Dems over immigration checks to get the measure through.
It may surprise anyone who isn’t an employment lawyer or a labour history geek to learn that it was the Conservatives who first introduced unfair dismissal, as part of their Industrial Relations Act in 1971. This isn’t as strange as it sounds. The Conservatives have a good record on employment law. Among other measures, they passed the Contracts of Employment Act, which has been called “the first modern employment protection statute”, the Workmen’s Compensation Act in 1897 and their fair share of Factory Acts.
In the 1970s, the question which perplexed politicians on both sides was how to pacify Britain’s antagonistic industrial relations and reduce the number of strikes. Using the law was a major feature of the Conservatives’ approach. Introducing employment protection would, it was believed, encourage employees to pursue their grievances in court rather than through industrial action.
By and large, the Conservatives stuck with this view. While the Thatcher government introduced legislation to curb collective action and the activities of trade unions, apart from an increase in the unfair dismissal threshold, it hardly touched individual employment rights.
There was a good reason for this. As one of my lecturers said in the mid 1980s, just after the miners’ strike:
The next decade will see a shift in emphasis in labour law from the collective to the individual. We will see the individualisation of industrial relations. Workers will fight their employers in the courts, not on the picket lines.
He was right. When I first studied these subjects, they were called Industrial Relations and Labour Law. By the time I studied them again at postgraduate level, only a couple of years later, they were called Employee Relations and Employment Law. It was a sign of how quickly the zeitgeist had shifted. By 1990, the miners strike, Grunwick and Red Robbo seemed like ancient history.
This ACAS research notes the dramatic decline in industrial disputes and the corresponding rise in the number of employment tribunal claims. It cautions against seeing one as a substitute for the other, noting that the sources of the disputes are often quite different. Trade union law and employment protection alone do not account for the reduction in industrial disputes. As I’ve said before, while it is still the received wisdom in some quarters to praise or blame Margaret Thatcher for breaking the trade unions, union membership has declined throughout the OECD since the 1980s. The old industries that bred trade unionism have gone and unions have struggled to organise in the new ones
Nevertheless, individual employment rights have almost certainly played some part in reducing the number of industrial disputes. These days, most unions respond to workplace conflict by supporting their members through the internal and legal processes. Outside London Underground, strikes to demand the reinstatement of dismissed workers are almost unknown.
So now that employment protection legislation has done its job, is it safe for the government to get rid of it? Or will the removal of employment protection see a jump in union membership as frightened employees try to protect themselves?
As Mrs Markleham said here, too much water has gone under the bridge to see a return to 1960s levels of union membership. We live in a post-union society where the fear of mortgage default and repossession is likely to blunt the militancy of any would-be strikers. That said, it would be surprising if some workers, having been deprived of their employment rights, did not seek the protection of a trade union. Much of this will depend on the behaviour of employers. If, the day after the measure becomes law, there is a mass dismissal of all the ‘dead wood’ and ‘slackers’, it might be enough to throw a formerly compliant workforce into the arms of a trade union.
As the government seems determined to bring in the Beecroft recommendations, we shall find out soon enough.