Don’t join, Organise: On the limits of employment law

Following Boris Johnson’s burbling mess of an address yesterday there’s been a renewed interest in health and safety legislation, our right to stay away from dangerous working environments, and the importance of joining a union. All good stuff, but as any trade union activist will tell you, a law, or even a union card, is not always much protection without collective power.

Bosses don’t always fear the law

The main thrust of recent articles about Section 44, the right to refuse work which puts you in imminent danger, is that it can allow you to do just that, if you have a good case to say being at work will expose you to a disease which the government itself has repeatedly said is extraordinarily dangerous.

That right however has to be backed up by some sort of enforcement process, and what the law does in this case is give you the ability, if you can afford it, to sue bosses who are taking the piss at an Employment Tribunal. These are specialist courts set up, in theory, to arbitrate on workplace misdeeds, forcing compliance on bosses (and workers) mainly through fines.

The practical reality of the system however is nowhere near as clear cut. The threat of a tribunal doesn’t act as an impenetrable shield and shouldn’t be seen as such — you can’t just slap a copy of Section 44 down and expect the boss to fold like a teatowel.

It’s not uncommon for bosses to ignore health and safety law (or decide they know better than you what it means), and there’s endless examples of them deciding they would simply rather get rid of a “difficult” employee and take the financial hit at a tribunal than show weakness or hand unions a victory. You can win a tribunal and still lose your job, either then and there, or whenever the boss finds a more reasonable excuse later.

Given the chaos in the tribunal courts at the moment due to covid-19 (they’ve stopped in-person public hearings entirely, for example) they might not be wrong either in thinking they can play an already boss-leaning system to push their existing advantages further.

The costs of even going to tribunal are also a significant factor. Fees no longer have to be paid, thank goodness, but even low-complexity legal cases can have potential outlays, and navigating the system from scratch is a pain in the proverbial. Which leads us to…

The union lawyer is very busy

Most TUC union bureaucracies like to present themselves as a service, like insurance for your workplace. This is great for them, as it justifies the professional class of full timers. But it is generally not how trade unionism protects you at work and the importance of joining a union mentioned in our article yesterday isn’t about paying someone to sort your problems out for you.

To be frank, unions don’t tend to send their very expensive legal eagles round to help directly unless they reckon their case is already air tight. And while there are good fulltimers in the union structure who will do their best to help, in most instances they will not be with you when you’re standing up to your boss on the shop floor. The backup there comes from your coworkers, friends and family. It’s your collective organising power which is the key to actually being protected.

A boss can isolate an individual to make an example of, take the hit from an individual fine and then shake their fist at the rest of the staff to keep them in line.

What they can’t do is make an example of 20, 100, 1,000 people at once, spend the resources to fight every subsequent case at tribunal, pay off every fine, find a full batch of replacement staff at short notice and deal with the fuss caused by a large number of former employees ripping into them on every available media platform, picketing, flooding their social media, blockading the phone lines and emails with massed calls and queries etc.

In sum, if you think you’re joining a union so someone else can protect you via the mercies of the law, don’t bother. Instead join it to protect your colleagues, and with them, yourself. Don’t just rely on the letter of legislation mostly written by, and in large part for, bosses. Organise.