Not Saussure

March 5, 2007

How dare they use the courts?

Filed under: Law, Politics — notsaussure @ 10:56 pm

Much concern from Chris Mullin MP about how some workers are using the courts to enforce their right to pay they’ve been unlawfully denied and others are similarly using them to prevent their employers cutting their pay. The odd thing is, he’s a Labour MP, who I’d have thought — but I’m obviously hopelessly behind the times — were supposed to be in favour of workers’ rights and so on.

The former minister warned that “no win, no fee” lawyers were unpicking agreements negotiated between councils and unions to implement equal pay for men and women.He hit out at “ruthless and parasitic” lawyers who were leaving town halls with crippling compensation bills.

As a result, he said, councils in England and Wales were now faced with the prospect of reducing frontline services and cutting jobs.

The Sunderland South MP said councils and unions had been putting in place agreements to establish the new pay regime.

However, he said lawyers had been challenging deals to ensure that low-paid male workers such as binmen did not lose up to 25 per cent of their pay overnight.

As a result, councils were now facing a bill for £3 billion in back pay to women workers such as school dinner ladies and cleaners.

Actually, a close reading of that suggests that the unions have actually connived at getting their members’ pay cut, which really suggests I’m not up to date with the role of the unions in the modern world. I thought it was they, not the ‘ruthless and parasitic lawyers,’ who were supposed to protect their members’ interests, but maybe not.

There used to be the old joke about the hopeless negotiator who says, ‘Bad lads; I’ve had to agree to a pay cut, but the good news is I managed to get it updated,’ but it seems that’s not a joke any more.

This isn’t an area of law about which I know very much, but there seem to be several court rulings involved. One is certainly the case of Bernadette Cadman, whose dispute was about increments for length of service, which she argued disadvantage women who take career breaks to start families. As far as I can make out from the EOC comments on the case, this very recent ruling (late last year) means that, in general, annual increments are justified on the grounds that the more experienced you are in the better you do it, it’s open to legal challenge in individual cases ‘by women who can provide evidence that casts serious doubt that longer service does actually lead to better performance‘ in their specific job.

This seems to have got both the employers and the unions upset because it means they can’t safely negotiate collective settlements because there’s always the possibility that individual women (or groups of women) in particular jobs and departments might turn up with a lawyer to provide evidence that casts serious doubt on whether longer service in their particular job in their particular department at their particular grade makes a deal of difference in performance.

The Times has a useful article about this; as the piece says,

Lawyers argue that the biggest impact is likely to be in the public sector, where differences in pay linked to length of service are more common than in private companies. Pay linked to service could also become an issue in low-skilled and semi-skilled jobs, where arguably a job can be mastered within months.“You have to question how long it takes for someone to become skilled at flipping burgers or working in a call centre. After six months can you get any better? And should you be paid more for your length of experience?” queried one employment lawyer.

There are plenty of other elements to this mess — local councils who should have acted on other, previous rulings in this area before now; unions who’re more interested in cutting a deal with the employers than in protecting individual members’ rights, and so on.

Mr Mullin has certainly missed the point — deliberately, I suspect — by blaming no-win, no-fee lawyers — everyone’s favourite bogey-persons — for this. He reckons

It is compensation culture gone barmy and it is going to lead to ruin.

While I agree contingency fee lawyers — an innovation for which we have to thank Mr Blair, of course; they were introduced in 2000, and made considerably easier to negotiate in 2005 — are frequently a menace when it comes to speculative personal injury compensation claims, this is more of case of their seeking to apply court rulings, which have clarified a previously unclear legal question, on behalf of their clients.

It’s the sort of thing you’d have expected, in the old days, the unions’ legal departments do be doing on behalf of their members and their unwillingness so to do would lead me, if I belonged to a union, to question what I was paying a subscription for.

However, Mr Mullin does, in one respect, hark back to the old days; he told the BBC

the only solution was to enshrine the agreements between councils and unions in law so that they could not be challenged in the courts.

That’s it — what does the law of the land matter? It’s the unions’ agreement that counts.

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  1. There’s a strong whiff of paternalism about this story. It seems that mere lowly workers should leave it to their betters to decide what’s good for them. As you say, astonishing that a Labour MP can come out with this stuff.

    Comment by archrights — March 6, 2007 @ 10:43 am

  2. I can see the councils’ and unions’ problem — they’ve been trying to agree on a comparability exercise, putting into effect the 10-year-old ruling that jobs done primarily by women should be paid the same as jobs requiring equivalent skills that are done primarily by men. That’s where giving the men a pay cut seems to have come from, though how anyone thought they’d get away with that I do not know; people were bound to be upset.

    Then along comes the Cadman ruling, very near the deadline for settling the comparability exercise, which calls into question the whole basis of the councils’ pay structures.

    I’d be tearing my hair out if I were a council or union negotiator, too, and I’d be extremely worried if I were trying to draw up the council’s budget, because this is going to be very expensive for them.

    But the fact of the matter is that the courts have said that councils — and other employers — have been acting illegally, though in good faith, and that their employees are entitled to have this put right.

    Ultimately, I think, government and the taxpayer are going to have to bite the bullet, since it seems to me that the Cadman ruling means local government in particular –which is very much run from Whitehall anyway, which gives councils statutory responsibilities and tells them how much they’re allowed to spend discharging them, and help them out while they try to resolve this latest problem.

    As I say, I can see everyone’s problem, but the sight of a Labour MP <Neil Kinnock mode> A Labour MP < / mode > complaining that women are using the courts to obtain redress for sexual discrimination in the workplace has left me gasping. When private companies complain they’re finding various anti-discrimination measures brought in by the government expensive and difficult to implement, they get little sympathy from the government, after all.

    Comment by notsaussure — March 6, 2007 @ 11:42 am

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