On a battlefield it is called a strategic retreat – conceding ground to make it easier to defend what is left, to conserve an army’s strength, to regroup for an effective counter-attack. Sometimes it means giving up ground which has been won in an attack which has in fact left the attacker crucially exposed to the enemy. But in the long run it is worthwhile – as any soldier who spent time harried by German observation and bombardment in the Ypres salient in World War One would have agreed.
The same principle can apply in the battlefield of politics. In a recent attack, which turned out to be strategically something of a mistake, on working class conditions the Blair government announced an intention to charge people who apply to Employment Tribunals for compensation alleging unfair dismissal, discriminatory practice at work or whatever. The plan was to introduce a charge for an application and then another (in the low hundreds of pounds) for a hearing of the case. This was, the government assured us, a necessary reform “a new, modest charging regime . . . to reduce the cost burden to the taxpayer” was how a Downing Street press release described it. Perhaps it was assumed that all those workers who are misled into a belief that they are “taxpayers” would have been so beguiled by such smooth assurances that the proposals would have been able to slip past like troops silently infiltrating enemy positions.
If that were the case, what the government had overlooked was that there are too many “taxpayers” applying to the Tribunals – about 130,000 a year at present – to allow the charges to go through unnoticed. In fact the Tribunals get more and more attractive; over the past ten years applications have increased threefold. It was predictable that there would be an outcry of protest: “contrary to the principles of the Human Rights Act and the principle of free, fair and open access to justice” was how TGWU General Secretary Bill Morris put it. Some Labour MPs were so impressed by the fervour of the opposition that they daringly considered doing the equivalent of deserting from the front line – voting against the proposals.
TUC
Of course the Blair government is well accustomed to shrugging off protests about their anti-working class policies – like the 1916 generals in their chateaux who were able to ignore the casualty figures and the battered soldiers at Ypres. But on this occasion there were other considerations to be put into the balance. The TUC conference was due to begin a few days later, when Blair was expected to have to face a barrage of wrath on the issue and on others such as the financing of hospitals, schools, transport systems. In the overall cause of strengthening the government’s position it was decided to make a strategic retreat, giving way and not imposing the charges – of which more later. In the end, of course, the destruction of the World Trade Center overrode all other matters and Blair was allowed to escape unbothered by any criticism.
Employment Tribunals evolved from Industrial Tribunals, created by the Wilson government’s Industrial Training Act of 1964, which was greeted as a great step forward in the protection of workers’ rights. It was also seen as the dawn of an age of sanity in industrial relations when, instead of rushing into conflict in the form of a strike or a lock-out, both sides would thrash out their problems in civilised negotiation. This, we were told, was how they did it in other countries, where as a result productivity was higher and there was wider prosperity. It sounded suspiciously too good to be true and that was how it turned out.
The Tribunals’ scope was originally a lot less than it is today, restricted to cases relating to assessment to training levy, entitlement to redundancy pay (the Wilson government’s plans for a more “flexible” work force in an age of “technological expansion” envisaged a lot of “redundancies” in which workers would be uprooted from their jobs and their homes) and disputes over a failure to provide a written statement of conditions of employment. Since then the Tribunals have become more complex, expanding into disputes over “unfair” dismissal, equal pay, discrimination over gender, race and disability. In 1987 there were 29,000 claims referred to the Tribunals; ten years later there were 80,000 and in 2000 it topped 100,000.
Lawyers
Until the Blair government came up with their proposals there was no basic charge to any applicant but for the other side – the employers – it could be an expensive business. For them the average cost of defending a case demanding 27 hours of management time was £2,000. (The proposed charges were estimated to save the employers some £70 million). The employers also complained that the Tribunals’ set up they gave the applicants an advantage, a situation no self-respecting, profit hungry employer would tolerate without a struggle.
The informal style of the Tribunals encouraged applications; it also fostered the impression that applicants could put their case themselves, without a lawyer speaking for them – although this is something the growing complexity of employment laws may change. But employers – especially the larger companies and government agencies – are more likely to engage a lawyer, which for them could be cheaper than drawing up a case and presenting it themselves. Overall this puts a rather different perspective on the fantasy about irresponsible and disgruntled workers being allowed to obstruct the work of the Tribunals with frivolous applications which cost them nothing.
In hard reality the employment dice always have to be loaded against the workers. The employer/employee relationship cannot be between equals because it is the employer who controls a worker’s access to their only means of getting a living. If for any reason an employer does not wish to allow a worker the opportunity to be exploited they can simply deny it. This is what happens when trade falls off and goods cannot be sold or when there are more than the market can absorb so that it is not profitable to produce them. At such times the illusions of “fair” employment, of “unfair” dismissal, of workers’ “rights”, are exposed for what they are. If a sacked worker can persuade a Tribunal that they have been “unfairly” dismissed it is clearly in their immediate interests to make the experience as painless financially as they can. In that sense the Employment Tribunals have their uses. But in no way can they upset, or even affect, the basic reality of working class employment and all it means in terms of exploitation and poverty.
Retreat
This reality may also be asserted in the government’s response to the protests against imposing charges on applicants. The motivation for the charges was to save money for the employers by encouraging (or perhaps forcing) applicants to settle their dispute through ACAS arbitration. That motivation is still there, which probably means that the charges have been postponed rather than scrapped. This is a well-used tactic in such situations. To give a recent example, a few years ago the government provoked a huge outcry when they proposed to close down the coal mines. To widespread surprise protesters sprang out onto the streets from the unlikeliest places – like leafy Tory strongholds in the Home Counties. The response of the government, in the person of the minister Michael Heseltine, was to announce that the closures had been called off – and then, when the protests had died down and other crises were monopolising attention, to reinstate them. We all know what then happened to the coal mines – and to the miners who thought they had won their case.
That was an example of a strategic retreat and the government were able to plan it and execute it and in the process to deceive the protesters because as representatives of the employers they hold a superior position. That is a basic fact of life under capitalism with its class monopoly of the means of living. It is a reality unaffected by agencies like the Employment Tribunals which the ever-hopeful queue of applicants would do well to remember.
Ivan
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