Delegates meet in Brighton for Unite’s Rules Conference this week. The new Unite Rank & File leaflet covers the need for resistance to the jobs massacre and to link it to tackling the climate emergency, defending migrants’ rights, sexual harassment and bullying within Unite, some of the proposed rule changes, and the need for solidarity with the indefinite strike at Colloids for the reinstatement of George Gore.
The release of the Intergovernmental Panel on Climate Change report last autumn was a game changer in laying bare how serious the climate crisis is and how little time we have to turn things around. In the wake of Extinction Rebellion and the massive global school strikes, a call has now been made for a global general strike on the week of the 20th September.
Lecturers’ union UCU and bakers’ union BFAWU have already announced their support. We believe its time for Unite to play a leading role in the campaign to stop runaway climate change. As the country’s largest union we should throw our weight behind this campaign and build for the biggest possible strike against the climate crisis in September. The Unite executive meets shortly and we hope they will issue a statement supporting members who want to join the global strike. Striking isn’t easy and every workplace needs support to take the maximum action they can – whatever that is.
Earlier this year, the UNITE Executive Council voted to significantly increase strike pay (Dispute Benefit). All members now engaged in strike action will receive Dispute Benefit of £50 per day from day one, an increase from £35 previously.
This is unrivalled in the trade union movement. It sends a strong message to those companies intent on exploiting their workforce, that UNITE members will be financially as well as industrially supported and should provide even more confidence and encouragement to members needing to take such action to achieve their objective.
The agenda for Rules Conference is now out. Delegates and other interested members can access it here:
Though not a subject of hot debate amongst most members, Unite’s rulebook has a big influence over how the union operates, including how decisions are taken, who takes them, and when. The rulebook shapes the democracy and participation which are vital to union strength. In 2019 a Rules Conference, which only happens every four years, gives you an opportunity to change the rules and strengthen our union. The conference is 24-28 June, but the deadline for proposals is 1 March.
Every Unite branch and constitutional committee (so that includes sector committees, equality committees, area activists and regional committees and retired members’ committees) can submit one rule amendment on this form by 1 March 2019 so you need to get proposals drafted and in to your branch or committee soon. Branches don’t send delegates to Rules Conference, they come from constitutional committees, who may elect them at the same meeting where rule amendments are decided. Conference itself takes place 24-28 June in Brighton.
Unite Rank & File campaigns to reform and reinvigorate Unite’s democratic structures to promote a bottom-up culture where members participate, challenge discrimination and are in control. Some ideas for rule amendments are in the report from our recent national meeting.
If you are thinking of putting in a rule amendment, or standing as a delegate to Rules Conference, why not get in touch so activists can work together?
On Saturday 24 November 2018 supporters of Unite Rank & File from around the country met in London to discuss our work so far and make plans.
Meetings in Glasgow, Manchester, London and Birmingham in May 2017 had agreed a volunteer team to get Unite Rank & File up and running. We launched on 31 October 2017 with this web site, a Facebook page and Twitter account. On a shoestring of human and financial resources the group has, in just over a year:
- Produced a leaflet for Unite Sector Conferences November 2017 highlighting solidarity with disputes at Mears/Manchester Working Limited, Arriva North West, Fujitsu and Capita
- Encouraged motions and amendments to Policy conference 2018, explaining a process left opaque by Unite
- Organised solidarity with Mears / MWL outsourced housing maintenance workers, who won 20% pay rises
- Encouraged people to stand for workplace and branch positions, explaining a process left opaque by Unite
- Opposed the NHS pay deal (a deal which, in the RCN, led to no confidence in the leadership)
- Argued against Unite seeking immunity for discrimination by lay officials against members and employees
- Highlighted officer collusion in blacklisting and the failure to act on evidence
- Produced a leaflet for Unite Policy Conference in July 2018 which: opposed popular and state racism, including the FLA and Windrush; championed migrant rights and free movement; built solidarity with Wigan NHS and TGI Fridays; backed diversification and renewable energy; opposed climate change; opposed partnership; pushed for sectors to have fewer more focussed officers; argued for activists to be able to communicate with members (against EC pretence that GDPR prevented this); backed direct action training and strike funds; backed dignity at work, opposed sexual harassment and domestic abuse; backed trans rights; supported equality processes for recruitment to Unite jobs – including stand down officers; challenged low pay for young workers; demanded action on disability and sickness policies; supported work on mental health and workload; sought opposition to cuts and privatisation from local authorities; supported a shorter working week
- Inside the conference, Unite Rank & File supporters played a key role in debates on free movement; opposing Tommy Robinson and the (D)FLA; overturning the EC on lay member communication; pushing improvements to Unite policy on defence diversification
- Defended free speech on Palestine and opposed use of the IHRA definition of antisemitism
- Promoted solidarity and publicised wins with numerous disputes and campaigns including Cammel Laird, Vauxhall Ellesmere Port, Street Crane Chapel En Le Frith, for trans rights, archaeologists in Ireland, NHS pay in Northern Ireland, against Universal Credit, Prysmian Cables, TGI Fridays, anti-racist demonstrations, climate change, Google, fracking, Appledore shipyard, Glen Dimplex Northern Ireland, saving libraries, Fast Food Shutdown, Luton airport, Kent NHS, period dignity, cladding on tower blocks, York NHS, Communisis, Hillingdon Dave Guilfoyle victimisation, free speech on Palestine, East Midlands buses, Total north sea oil, Birmingham home care, blacklisting, Wigan NHS, NHS, Ryanair, East Dunbartonshire Council, Gaza, Fujitsu, Bentley Crewe, First Bus Aberdeen, Bromley libraries, Mariner north sea oil, Leeds NHS, Hinkley C, Workers’ Memorial Day, Sutton tankers, reinstate Ian Allinson, Cummins Stamford, First Bus Manchester, Sellafield, Crossrail electricians, Glasgow Life / Emirates, Hanafi / Tower Transit, Mears Manchester, Canute Haulage Suffolk, harassment in hospitality, Birmingham bins, BiFab occupation, anti Trident replacement, Arriva bus Liverpool, bus pay and safety, employment rights, Swansea Bay tidal lagoon, National Grid US lockout, union rights, abortion rights in Northern Ireland, HE pay campaign, Deeside Clugston, working time, BA Mixed Fleet, Manchester airport, Bank of England, benefit sanctions, Chivas, Barts hospital, BSL interpreters
While an impressive start, the initial focus had been on getting central organisation and online presence up and running so there had been a lack of email bulletins and leaflets, local and sectoral organisation, too few reports from pickets and protests, and most of the people who support Unite Rank & File still haven’t actually signed up. In addition, we are still too widely seen as linked to a General Secretary candidacy, despite our launch statement and subsequent actions making clear that is not what we are about.
The future of Unite Rank & File
A genuine rank and file movement can only be built through workers struggle against their employers but we can contribute towards this process by, for example, pulling together people who see the need for such a movement, encouraging solidarity, publicising victories, encouraging resistance and pushing Unite to do more, putting activists in touch with each other, sharing information and ideas, challenging the “in partnership with management” approach, campaigning to reform and reinvigorate Unite’s democratic structures to promote a bottom-up culture where members participate, challenge discrimination and are in control, and championing radical policies even when Unite fudges on them.
We’d welcome more people involved in contributing to this web site and other publications. As well as more solidarity appeals and reports (videos are great!) there was discussion about the difficulty of finding relevant information on the Unite web site, and the way information rarely reaches out beyond those on constitutional committees. We want to gradually make this site a “go-to” place for activists by reporting or signposting relevant information. If you are on a constitutional committee, you could consider after each meeting sending in a few key pieces of information or news that activists more generally might value?
There was a lot of anger over the approach Unite had taken at Labour conference. While the left and most constituency Labour Parties had wanted to debate open selection (sitting MPs not being automatically reselected as candidates), Unite had voted to prevent this, despite it being our policy. Unite had also supported a mechanism for leadership elections which still gives MPs an effective veto over candidates but increases the ability of unions to block candidates.
Unite has a tendency to fudge key issues, for example it’s support for Palestinian rights while backing the use of the IHRA definition of antisemitism in the Labour Party, which will curtails non-racist free speech on Palestine. People felt that this example, like the ones on diversification and workers’ rights to live and work where we like, meant there was an important role for Unite Rank & File in speaking out clearly for left policies.
Unite’s industrial approach varies widely, but there were concerns about a focus on short-term “jobs at any price” rather than diversification, concession bargaining, and a willingness to trade union recognition for industrial peace. The need for diversification to good sustainable jobs was highlighted by the threats to jobs at Appledore shipyard, Cammell Laird, Rosyth and Vauxhall Ellesmere Port. Failure to take the initiative on diversification will leave hundreds of thousands of members vulnerable if action to tackle climate change happens on employers’ terms rather than based on our demands for a “just transition” to a low carbon or no carbon economy which can mean many new good jobs.
Members remain concerned about blacklisting and the lack of progress in tackling union officer collusion in it, particularly with the influx of officers from the former UCATT. In construction this is leading some members to “dual card” being members of other unions including the IWGB.
Some key barriers to democracy and accountability were discussed. Members have to get through many layers of Unite’s structure to get things decided or done – and it is often unclear what route through the structure to take. The timescales are very slow, especially if some of the meetings at different layers are inquorate or officers mislay paperwork or information which can cause three months’ delay each time. Community members are still excluded from most of the union’s structures, including having delegates to the Rules Conference which will decide whether to address this. Some workplace-based activists are afraid of losing control of the union to community activists, but it was pointed out that Unite already has facilities to ensure representation is proportionate to membership, so no section of members can dominate. For Rules Conference 2019 Unite Rank & File will encourage rule amendments to increase democracy, participation and accountability.
Concern was raised that the national Equalities Conferences due early in 2019 have been postponed a year.
Rules Conference 2019
We want to discuss ideas for rule change motions now. The timetable for branches and committees to submit motions is expected to be announced around the end of the year.
Ideas discussed were:
- Stop full time officers dealing with employers over the heads of lay representatives outside specific circumstances set out in a protocol
- Define routes for remits to be sent through the structure
- Address lack of democratic rights for community and retired members
- Enable equality committees to vote annually on whether to fill vacancies with activists who haven’t yet been elected as reps or branch officers, to provide a route for people who face barriers to getting elected to build up their knowledge and experience
- Help officer accountability by stopping the buck being passed between regions and sectors
- Any proposal to close a branch should be voted on by its members
- Ban union employees (other than candidates) campaigning in internal Unite elections
- Change General Secretary elections from First Past The Post to Single Transferable Vote to encourage more candidates and more diverse candidates and help ensure debates are on the issues affecting members not speculation about splitting the vote
- Accountability of officers at TUC and Labour Party conferences
- Extend equality proportionality to Labour Party Liaison Committeees
Equal Pay, the Gender Pay Gap and the Glasgow council strike
The inspiring strike by 8000 UNISON members had seen solidarity action by around 600 (mainly GMB) refuse workers. An NEU teacher had been suspended for refusing to cross a picket line but was now back at work following a campaign.
The Glasgow council strike was the biggest equal pay strike for many years and had done a lot to raise the profile of the issue. The solidarity action was important in proving this can be done – despite the anti-union legislation. The strike also helped inspire the tens of thousands of Scottish teachers who marched, and a four-day unofficial postal strike in Hamilton.
The strike came in the context of the #MeToo movement, the campaign for abortion rights in Ireland, the walkouts at Google over sexual harassment and discrimination, and the big role of sexual harassment in hospitality in stoking the fast food strikes.
Though many employers are treating the publication of the Gender Pay Gap data as a “tick in the box”, it provides valuable information about employers which can be used in campaigning and bargaining. In some cases, reps are finding out that their employers have been misleading them about pay. Gender Pay Gaps are often about job segregation, not just unequal pay for similar work or work of equal value.
There was frustration that a lot of union communication about equality is about committee composition or meetings. We want to do more to promote efforts to fight discrimination and oppression.
Last year’s Unite Policy Conference had seen Motion 65 on International Women’s Day remitted to the EC on the basis of assurances that the EC would act on it. The motion resolved:
- To call a 2.5 hour strike on the 8th of March 2019 symbolising the two and a half times more social reproductive labour women undertake than men highlighted in the International Labour Organisation report.
- The demands of the strike will be extended access to free childcare, the reversal of all austerity cuts to women’s services and the creation of a National Care Service which is free at the point of delivery, has equal standing to the NHS and is funded from progressive taxation at the national level to avoid the entrenchment of regional inequalities.
- To call a national demonstration working alongside women’s charities and campaigns.
- For the EC to contact the TUC and other unions encouraging wider participation in the strike.
- For National Officers, Equalities Officers and all union structures and committees to promote and encourage active participation in the strike and demonstration.
In recent years there has been a small revival in strike activity on International Women’s Day. Inspired by Polish women’s strike against plans to criminalise abortion and miscarriage on 3 October 2016 and an international wave of protests, the International Women’s Strike now involves more than fifty countries. In most countries there is insufficient organisation to strike paid employment, though more than five million struck in Spain last year.
We agreed to push Unite for action over Motion 65. Even if we can’t deliver strikes in most workplaces, there will be plenty with live issues of sexual harassment and discrimination that could be balloted and provide a focal point to force attention and action on these key issues – just as the Glasgow strikers did.
Disputes and campaigns
- The Street Crane strike in Derbyshire which we had been publicising had just won.
- Action is currently suspended for negotiations at Prysmian Cables.
- Action against job cuts and casualisation is ongoing at Cammell Laird (Facebook page, petition, strike fund).
- There will be a national summit for safe, secure homes for all in London on 8 December.
Keep an eye on our Facebook page in particular for updates about disputes and campaigns.
We decided we will ask supporters to make a regular financial contribution of at least £2 (£1 unwaged) per month, more if you can afford it. This will both provide more stable finances for our activities and provide clarity for democratic processes. We elected a treasurer who will oversee setting up a suitable bank account. Unite Rank & File’s committee (see below) will appoint two auditors who are not committee members.
We elected an editor and four assistant editors who will oversee our web site, social media, email newsletters and leaflets on a day to day basis.
We elected two co-chairs (one female) and want up to two coordinators (at least one female) for each region, sector, equality strand, young members, community members and retired members. These will encourage people to sign up to Unite Rank & File in their bit of the union; feed in ideas, appeals for support, reports etc; circulate Unite Rank & File materials; and get people together where appropriate.
We elected people into some of these coordinator positions, plus an overall solidarity coordinator.
Unite Rank & File’s committee will comprise the various officers and coordinators, and it was charged with co-opting additional coordinators where needed.
Please sign up to Unite Rank & File if you haven’t already, like our Facebook page (and choose the “see first” option under “Following”), follow us on Twitter, and send in appeals for support, reports and your ideas.
Unite has good policy on Palestine, including support for Boycott, Divestment and Sanctions (BDS). It was a setback to see the Unite delegates going along with (and Len McCluskey welcoming) the the Labour NEC statement:
“We recommend that we adopt the IHRA in full with all examples. This does not in any way undermine the freedom of expression on Israel or the rights of Palestinians. We re-invite the organisations to re-engage in consultation on the Code of Conduct.”
The IHRA definition and its examples are intended to undermine freedom of expression on Israel and the rights of Palestinians by smearing the movement in support of Palestinians, and in particular the BDS movement, as antisemitic (more information here and here).
Hundreds of Unite activists had signed an open letter opposing the adoption of the most problematic IHRA examples in just three weeks. Those, like Len McCluskey, who argued that Labour should adopt the IHRA examples were wrong for two reasons. They were wrong to imagine that this would curtail the smears against the Labour leadership and all those who support the Palestinian cause; and they were wrong to think such an opportunistic approach justifies supporting a tool that is being used to strengthen these smears. This can only do long-term damage to the fight against the oppression of Palestinians. Giving in to bullies doesn’t work. Rather than giving in to those who want to silence criticism of Israel, we must speak out in defence of Palestinians and of free speech on the oppression they are resisting.
- Activists to sign and circulate a new statement being used across all trade unions: https://goo.gl/forms/vKVaHdnDi4jdVId12
- Unite branches to send motions in through their Areas and Regions, to the Executive Council, demanding that our union stands firm in support of Palestinian freedom and does not give an inch to those who would claim that doing so is antisemitic. A model motion you can adapt is below.
- Those in the Unite delegation to Labour Party conference to argue for the delegation to oppose adoption of the problematic IHRA examples
Model motion: Free Speech on Palestine
… branch is proud of Unite’s strong stance in support of the Palestinian struggle, including the movement for Boycott, Divestment and Sanctions (BDS) against Israel.
Within the movement in support of Palestine there is a wide range of legitimate views held by Jews and non-Jews, including:
- That the foundation of a state based on the exclusion of much of the existing population on grounds of race or religion is a racist endeavour
- That Israel is a colonial settler state founded on the oppression and exclusion of the majority of the existing population, and that no people has the right to “self determination” on this basis, no matter how appalling their own suffering
- That a state which allows Jews who have never lived there a “right of return” but does not extend the same right to non-Jewish Palestinian residents who were expelled or left is inherently racist
- That Israel’s systematically discriminatory policies, including its recently passed “nation state” law make it an “apartheid state” and its claims to be a democratic nation empty
- That aspects of the behaviour of the Israeli state are comparable with aspects of Nazi policy, particularly in the earlier years of Nazi rule
- That it is legitimate to focus solidarity on oppressed people who resist, even if others are suffering just as much
While not everybody holds these views, and this branch acknowledges that all these views can be held by racists, or can be expressed in racist, insensitive or unhelpful ways, these views are not in themselves racist or antisemitic.
This branch believes that there is a consistent attempt to unjustly smear supporters of Palestine as antisemitic in order to weaken the movement for Palestinian freedom. This branch notes that the IHRA working definition of antisemitism and examples have already been used (e.g. by Barnet Council and University of Central Lancashire) to falsely claim that legitimate views or debate on Palestine and Israel are antisemitic.
This branch resolves to oppose any definition of antisemitism which suggests that legitimate views or debate on Palestine and Israel are antisemitic, which not only undermines the fight for Palestinian freedom, but undermines the fight against genuine antisemitism.
This branch resolves to send this motion to the Executive Council via the Regional Committee and/or Area Activists Committee as required.
This weekend delegates from across the UK, Ireland and Gibraltar will gather in Brighton for Unite’s 5th Policy Conference. The final agenda suggests there should be some lively and important debates.
Unite Rank and File has produced a leaflet highlighting some of the key issues. If you’re at conference, please help distribute it.
And if you haven’t yet signed up for Unite Rank & File, please do.
Though Unite has been playing an increasingly positive role in challenging blacklisting, particularly in construction, more progress is needed to investigate the allegations that union officers colluded to put members on the blacklist and root out any responsible.
The problem of employers blacklisting workers who organise or who speak up about issues, including Health & Safety, has been growing in prominence for a number of years, thanks in particular to the work of the Blacklist Support Group (Facebook, blog).
Despite the exposure of one blacklist of several thousand workers, run by the Consulting Association, which mainly targeted electricians, nobody believes the practice has ended.
In recent years Unite has been playing an increasingly positive role in challenging the blacklist. The union has been more supportive and cooperative with the Blacklist Support Group. At present the union is taking action in the High Court against both key individuals involved in blacklisting, and some of the big companies that used the blacklist. Compensation isn’t enough for justice – the struggle continues to bring the practice into the open and stop it.
Blacklisting workers, so they can’t get employment, is a crime and a human rights abuse that ruins lives, breaks up families, and has led to suicides.
The Metropolitan Police has admitted that police officers are likely to have passed personal information to a covert blacklisting operation, and that police throughout the UK had contact with organisations including the Economic League, a previous major blacklister. It has also been confirmed that undercover police infiltrated unions to gather information.
But one issue that simply hasn’t been adequately addressed is the allegations that some union (Unite and former UCATT) officers colluded with employers to blacklist members.
In 2016 the Blacklist Support Group, the national Construction Rank And File, and a number of construction activists published an open letter which included:
“It is now in the public domain that officials in both unions were recorded as the source of information on Economic League and Consulting Association blacklist files. Some of those named, remain senior officials in UNITE and UCATT to this day. Every union activist in construction knows who the named officials are, as does every major employer.”
“We the undersigned call upon the new UNITE construction section to engage an independent legal expert to carry out a thorough investigation of the allegations relating to union collusion in blacklisting, with a remit drawn up in conjunction with the blacklisted workers. If the implicated officials are completely innocent, then this is their opportunity to clear their name once and for all. But if the independent investigation concludes that there is a case to answer, then the union should take the appropriate disciplinary action. We are not looking for a witch-hunt, we simply want answers into possible union collusion in order to avoid repeating mistakes of the past.”
During the recent General Secretary election, Len McCluskey was among those who backed the call for an inquiry, though he claimed that “While new evidence has unfolded in the High Court proceedings it is not the case that this evidence points towards present or previous union officials”. This is an extraordinary claim, given that a number of members’ Consulting Association files blacklisting members name union officers as the source of information about them. Some of these officers are named in the carefully researched book “Blacklisted: The Secret War between Big Business and Union Activists”.
In August 2017 Len McCluskey announced that he had appointed a barrister “to examine allegations that union officials colluded with a covert blacklisting operation financed by major firms to prevent certain workers from being employed” by scrutinising “documents that were disclosed in a high court lawsuit that led to construction firms apologising and paying compensation amounting to around £75m to 771 blacklisted workers.”
The remit of the inquiry was a worry. It wasn’t drawn up in conjunction with blacklisted workers and doesn’t seem to involve talking to the members who believe they have evidence of officer collusion.
Since then, things have gone awfully quiet. Members don’t even know which barrister is conducting the inquiry, and haven’t been asked for input.
Brian Higgins is one of the blacklisted workers who signed the open letter and whose blacklist file names two union officers as sources of information, one of whom is still serving. This does not prove that the officers knew how the information they provided about members would be used, but as the Blacklisted book puts it “The blacklist was an open secret in the building industry”. Brian has been repeatedly writing to chase progress on the inquiry. The following are extracts from that correspondence:
Len McCluskey to Brian Higgins, 23 November 2017:
“The barrister we are using has been advised to produce a report for me which will remain confidential whilst litigation is proceeding. I will, of course, share the outcome of that report with the Executive members from Construction, including Roy, as well as the Construction NISC at the appropriate time and any actions that are needed will be taken.”
Len McCluskey to Brian Higgins, 6 December 2017:
“I have responded to the calls for us to consider all documents that have been disclosed in the High Court litigation to see if there is any evidence of officer collusion in Blacklisting. As such I have given instructions that a Counsel from Doughty Street Chambers be instructed to review all of the disclosure documents from the litigation and this will look at the specific issue as to whether there is any evidence of officer collusion.”
Len McCluskey said he is not aware of evidence regarding the serving officer Brian named, and asks to be sent any evidence to forward to the barrister.
“if there is any evidence of any officer of Unite being involved in blacklisting then I will not hesitate to take action“
8 December 2017 Brian Higgins sends Len McCluskey copies of pages from his Consulting Association blacklisting file which name officers (including one still serving) as having provided information.
11 December 2017 Len McCluskey replies:
“I will pass this information over to the Counsel who is preparing the report that I have continually referred to and I will await that report before taking any action in line with the commitment I have given to the Executive Council and to the NISC”
This is very different from the promise of taking action without hesitation made before Brian sent the evidence.
Brian Higgins to Len McCluskey 30 May 2018:
“Nearly ten months have passed since this fanfare of publicity and you appointed an anonymous counsel to conduct this inquiry. Yet as far as I’m aware not one blacklisted union member has been contacted by anyone from Doughty Chambers and you have never sent out one letter by post or email updating us on whatever stage your inquiry has reached. Neither has there been any mention of your inquiry into union collusion in any of the union’s general publications for members in general or the one for construction members in particular.”
It’s well past time that the inquiry into officer collusion got some more impetus, actively seeking evidence from the members involved, and explaining to members what the process will be. And if Len McCluskey intends to take no action, even when evidence is supplied, until after the barrister’s report is made after the end of litigation, he needs to explain that rather than claiming he won’t hesitate to take action.
Many activists believe they are still being represented by officers who knowing colluded with employers to prevent members getting employment on the basis of their union activity. Brian and some others believe “there is a cover up going on”. Brian says he “was extremely upset and deeply offended and almost physically sick” when an officer was “promoted … in spite of senior construction officials knowing he was named in my file when this promotion took place”. Whether the evidence proves these beliefs to be true or not, a situation where members believe their evidence is not being acted upon is untenable and unsustainable.
There’s great potential for membership growth in construction. Cleaning out the shameful problems of the past can only help. Failing to do so would make the prospects of democratic site organisation in construction bleak.
The fight against discrimination and for equality is a core part of what any decent union activist does. So it might come as a surprise to many who haven’t been following the case that Unite went to the Court of Appeal (and may go to the Supreme Court) making an argument that would reduce members’ protection from discrimination.
The case centres on Sally Nailard, who was a Regional Officer employed by the union. She was subject to what her Regional Secretary acknowledged was
“a sickening and orchestrated campaign of harassment … [including] bullying and even sexual harassment”
by two branch officers. The courts supported Sally Nailard’s view that the union
“failed to deal with it firmly or decisively”.
In an organisation with over a million members, thousands of lay activists and hundreds of employees there will, from time to time, be cases where people behave wrongly. While the union can and should take steps to minimise this, for example through education and clear policy statements, this cannot prevent cases arising entirely when our union exists within a society riddled with power inequalities, prejudice and discrimination. What everyone should be entitled to expect is that our union responds supportively and effectively when such incidents occur.
When someone has been treated as badly as Unite and the courts accept that Sally Nailard was, you would expect the union to do what it can to make amends to the individual and try to learn lessons to reduce the risk of recurrence. An absolutely compelling reason would be needed to drag the survivor of bullying and harassment through a gruelling series of appeals. Yet that is what has happened.
In the appeal, Unite wasn’t contesting that Sally Nailard had been treated very badly by two branch officers, or that they had responded inadequately to her complaint. The appeal unsuccessfully sought to use a legal technicality to deny liability under the Equality Act 2010.
We all understand that an employer has liability for discrimination carried out by its employees. The law has jargon for when someone who is not an employee can act on behalf of another person or organisation, with the power to change their legal relationship with third parties, without being an employee. The “agent” acts on behalf of the “principal”. The law treats lay reps and branch officers as “agents” acting on behalf of the union (the “principal”). Lay reps can enter into agreements with employers that have legal standing.
This view of lay reps as agents of the union is not new law, being well established in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union . But it certainly isn’t how union activists see the relationship – we see ourselves as acting on behalf of, and accountable to, members, not on behalf of the union as a top-down legal entity.
Section 109 of the Equality Act 2010 makes clear that principals are liable for discrimination by their agents in broadly the same way that employers are liable for discrimination by their employees.
The waters in the case were slightly muddied by Unite highlighting an anomaly in the Equality Act which does not provide “principals” with the same defence as “employers” that they “took all reasonable steps to prevent” the discriminatory Act. However, this is far less significant than it appears. A “learned friend” explains that the courts don’t in practice allow this defence for employers either, because if it was given its literal meaning the effect would be that no large employer with an HR function and policies would ever be found liable for discrimination – an outcome so unjust that even our courts wouldn’t accept it.
But even if this inconsistency in the legislation had been material, it still wouldn’t justify the appeal, which was primarily on the obscure point of whether the liability of the union for discrimination carried out by lay officials should protect employees, other activists, and members; or be restricted to only protect third parties such as employers!
This blog from Devereaux Chambers explains their view of the judgement:
“The Court of Appeal undoubtedly came to the correct conclusion on this issue: the logical extension of Unite’s argument is that a union would not be liable if its lay officials discriminated against its members they may be representing. However, a union would certainly be liable for such conduct under s.57 EqA if the lay officials had been its employees. Parliament cannot have intended such a different result, particularly as most trade union members deal primarily with lay officials, rather than employed officials.”
It can’t be right that Unite continues to seek a blanket immunity for lay officials who discriminate against Unite members, activists and employees, denying them protection available to employer representatives or reps from other unions.
It is well known that there have been significant issues in relation to treatment of female Unite officers, and that the report into this showed that a large proportion of their experiences of sexism was from lay members rather than union employees.
Unite should not drag Sally Nailard, who the union accepts was treated appallingly, through yet another appeal in an attempt to deny Unite members, activists and employees legal protection from discrimination by lay officials. Unite should apologise, try to agree a resolution with Sally Nailard and step up equality education for all activists. Not only would this help us reduce the incidence of sexual harassment within the union, it would help our activists support the huge number of women members who suffer sexual harassment in their workplaces.