solidarity across the union
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.
You can read the Court of Appeal judgement here, and some legal commentary on it here.
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 [1973]. 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.