Labour Research November 2021


Attacked for standing up for their members

Trade union reps are under increasing attack from employers, according to a motion carried by this year’s TUC Congress.

A motion put forward by the Unite general and RMT transport unions at September’s Congress made clear that local reps are on the frontline, defending workers’ rights, conditions and safety. And throughout the Covid pandemic, they have played a key role supporting workers.

For many workers, they are the first and main point of contact with the union. However, the motion also said that “it is exactly because reps are so important and successful to sustaining the unions that they are under increasing attack from employers. This can range to various forms of victimisation and outright dismissal on spurious grounds.”

RMT transport union general secretary Mick Lynch told Labour Research his union has seen an increase in the victimisation of union reps over the course of the coronavirus pandemic, with reps under pressure to “keep the show on the road and not to question management”.

Unsafe workplaces

Several RMT reps who have taken up safety cases, or who have a history of representing members, have been dismissed on the basis of their activities as reps, he added.

For example, the union has been campaigning for the reinstatement of Southampton bus branch secretary Declan Clune. He was dismissed in February 2021 for bringing bus operator Bluestar into disrepute after he reported concerns to Network Rail about a bridge being struck by vehicles.

A company spokesperson told a local newspaper there was no evidence the bus came into contact with the bridge.

Network Rail dismissed Route Council representative John Kennedy for an alleged signalling maintenance testing handbook irregularity while working on a track circuit. In a letter to members, Lynch set out the union’s view that: “It is our firm belief that the decision to dismiss him in these circumstances is unfair, overly harsh and that his 20 years of trade union activism have been a significant factor in the decision to dismiss him.”

Area representative and West Coast South branch secretary Tim Breed was suspended for 10 months from April 2020 and disciplined over what the union described as “trumped up charges”. He faced misconduct charges after acting on Covid safety. Following representations at the appeal stage, the length of the disciplinary sanction was shortened but not removed.

His RMT branch claimed he was victimised “due to his work as an outspoken RMT representative of long standing”.

Several NEU teachers’ union reps have also faced disciplinary action or redundancy after taking a stand on behalf of their members during the pandemic.

A fringe meeting organised by the Defend Victimised Reps campaign (see box) at the union’s annual conference in April 2021 heard that in some cases this followed the use of section 44 of the Employment Rights Act 1996 (ERA 96) in response to Covid safety concerns.

This legal provision has come to prominence during the pandemic (see Labour Research, February 2021, page 23), with several groups of workers refusing to go into workplaces where they believed they were at risk of Covid infection.

Defend Victimised Reps campaign

Defend Victimised Reps is a group of union representatives, and former representatives, who say “we have all been victimised”. In January 2021, they formed a support group to stand in solidarity with each other.

“The Covid 19 pandemic has played a major role in victimisation and has been weaponised to create ‘divide and conquer’ amongst union activity nationally,” says the group.

It aims to build a national campaign to bring all union victimisation “to the forefront of union protection”; embed and strengthen a multi-union approach and ethos that “an injury to one is an injury to all; and help and provide support networks to anyone who is being victimised.

The group’s website provides case studies of reps, including Kirstie Paton, Louise Lewis and Ian Forsyth (see main text) and other NEU education union reps; RMT rail union reps Declan Clune and Gary Carney; and London bus driver and Unite union rep Moe Manir.

It includes links to further information, petitions and appeals for funding to help them fight their cases.

Legal protection for reps and members

Section 44 protects workers from “detriment” — or unfair action by the employer — where “in circumstances of danger which they reasonably believed to be serious and imminent”, they left work, refused to return to work, or took steps to protect themselves or others.

It also provides employees (but not “workers”) appointed as safety reps with extra statutory protection from victimisation or dismissal for carrying out safety rep functions.

Section 100(1)(d) of the ERA 96 provides protection for employees who have been dismissed as a result of taking such action.

The UNISON public service union’s advice and guidance for reps, Victimisation on union grounds, points out that being a rep is an extremely positive, productive and rewarding role.

Cases of victimisation on union grounds “are extremely rare and the majority of trade union members and reps will never be a victim of unfair treatment for their participation in union activities and training”, it says.

The guide also sets out reps’ rights and legal protections. As well as the protections under the ERA 96, Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) protects workers from being subjected to detriment related to taking part in trade union activities.

Under Section 152 of TULRCA, it is also automatically unfair to dismiss an employee for the sole or main reason of their taking part in trade union activities at an appropriate time.

There is no qualifying period of employment required before the employee can bring a claim. Protection under sections 146 and 152 is available whether or not the union is recognised in the workplace.

The Labour Research Department’s Law at Work 2021 booklet explains that employers sometimes argue that a union member was disciplined not because they were carrying out union activities, but rather because of the way they went about it.

However, courts have ruled that the manner in which the activities are carried out is irrelevant when it comes to deciding whether they are trade union activities, unless they are carried out dishonestly, in bad faith, or for a different purpose.

While disciplinary action against union reps can be dealt with under the employer’s normal disciplinary procedures, guidance from the Acas industrial relations service acknowledges that “action against a trade union representative can be construed as an attack on the union if not handled carefully”.

The Acas Code of Practice says that in some circumstances it is advisable to discuss the case at an early stage with a union official, after obtaining the employee’s consent.

Employment tribunals provide inadequate redress

Employers have denied union allegations of victimisation. For example, a source from the United Learning multi-academy trust (see below) told the South London Press that trade union representatives are held to the same standards of behaviour as all other staff. But legal redress for reps who do experience victimisation is through the employment tribunal (ET) system. This is after the event with compensation awards generally not high.

In 2019-20, according to Ministry of Justice figures, the highest award in an unfair dismissal claim was £118,842. The mean, or average, unfair dismissal award was just £6,646. And while reinstatement and re-engagement orders were meant to be the primary remedy when the ET system was first devised, in practice less than one per cent of claimants are reinstated or re-engaged. Most get only financial compensation.

Campaign to strengthen reps' legal protections

The RMT is calling for the law to be enhanced so “reps have the right to stand up and make representations on behalf of their members” without fear that they will be “targeted and victimised if they put their head above the parapet”, Lynch said. It is also calling on the Labour Party to back stronger legal protections for reps.

“Where a safety rep or industrial rep takes up a case, they should have legal protection,” he added. “Declan Clune was disciplined for taking a safety concern to his employer and the authorities. There is no legal protection to stop this under the current legislation.”

Industrial action to support reps

Unions are also calling for the repeal of anti-trade union laws that make it difficult for members to take industrial action in support of reps.

As a result of the Trade Union Act 2016, for example, industrial action is not lawful unless at least 50% of those entitled to vote in the ballot do so, and a majority of those voting vote in favour of the action.

In “important public services” an even higher ballot threshold applies. Industrial action is not lawful unless at least 50% of those entitled to vote in the ballot do so and at least 40% of those entitled to vote in the ballot vote in favour of the action.

Despite these legal restrictions, union branches have used strike action — in combination with community support in some cases — to support reps taking disciplinary action. For example, the July-August 2021 issue of the NEU journal, Educate, highlights three recent successful campaigns.

Teachers at The John Roan School in Greenwich, part of the United Learning group of schools, took strike action in support of their NEU rep, Kirstie Paton.

A teacher of 20 years at the school, she faced dismissal at a disciplinary hearing after raising concerns on social media about the improper use of lateral flow tests at the school. NEU members made clear there would be further strikes if the employer went ahead with its threat to dismiss her, and Greenwich NEU called a protest in support of her outside her disciplinary hearing.

In May 2021, it announced that: “To all our members and supporters who have worked collectively to defend trade unionism, we have some very good news. Kirstie has received the outcome of her hearing — United Learning have decided not to dismiss her.

“This is a huge victory for Kirstie and for our union and the wider team of union activists, parents, students and the local community members, who stood with Kirstie.”

There was more good news that month when, after a seven-month campaign, including four days’ strike action and protests outside the school, North Huddersfield Trust School NEU rep Louise Lewis had her suspension lifted. Nearly 2,200 people signed a petition on the action network website sponsored by NEU Kirklees. This explained that Lewis had been a senior member of staff at the school for seven years, the NEU rep for four years and was “strictly following trade union advice to try and secure whole school and individual risk assessments for all staff as well as for herself”.

The petition also said the union believed her suspension, on the same day as a Health and Safety Executive inspection, was “a direct result of Louise undertaking her trade union duties” and “a deliberate attempt to marginalise the NEU union voice”.

Educate also reported that after 22 days of strikes by staff at Leaways School in Hackney over pay and conditions and the victimisation of their NEU rep Iain Forsyth, the Kedleston Group which runs the school agreed to union recognition and Forsyth’s reinstatement.

Members also won on their terms and conditions, with an improved sick pay policy, the introduction of pay progression, and pay scales that mirror national agreements, the union reported.

“As a staff we are so pleased with the progress we’ve made and the support from the NEU,” Forsyth told the journal.

“We have witnessed first-hand the power of sticking together as colleagues.”

Calling for changes to employment law, one victimised rep told Labour Research: “Where reps speak out in the public interest, they should not face detriment.

“But ultimately this is a collective battle. If employers are successful in picking off people who are prepared to stand up to them, we will be left with a toxic culture in workplaces.”

Co-ordinating action

The Unite and RMT Congress motion called on the TUC general council to hold an event on attacks on reps to ensure that “we coordinate information, campaigning and other responses, including coordinated industrial action” and to name and shame bad employers, creating and maintaining a searchable database — accessible to all affiliates — of employers who attack reps, industrial disputes and strikes, by employer, union and location.

The RMT has welcomed rank and file campaigns set up to support reps, like Defend Victimised Reps. Lynch said: “Reps are the face and voice of the union and where they feel targeted, the whole movement needs to step up.”