“We need legislation guaranteeing unions the legal space, protected from injunctions & damages claims, in which to organise industrial action. That is the only legal way to rebalance power at the workplace& give workers the leverage to resist tactics like those of P&O. “
Lord John Hendy QC
By Lord John Hendy QC
On 17 March 2022 P&O Ferries (Jersey) Ltd sacked officers and crew of their ferries operating from and to the UK in order to replace them with agency crew from India and elsewhere to work at an average rate of £5.50 per hour.
The sackings were carried out by a pre-recorded video message and hand delivered letters of instant dismissal. Those on board the vessels were escorted off by hired security and their cabins emptied. There was no prior consultation with the seafarers unions. No prior notice was given to the UK authorities or those of the countries in which the ships were registered.
The law was broken. The Chief Executive admitted in Parliament that it had a statutory duty to consult the unions but decided not to.
The company has also admitted that it broke UK law by failing to give prior notice of the dismissals to the authorities of the countries in which its ships are registered (none have British flags). Failing to give such notice to the UK authorities for dismissals in the UK or from British registered vessels is a criminal offence but the company claims it is not criminal to fail to give notice in respect of foreign registered ships to their authorities.
Given the manner of dismissal, the law on unfair dismissal would also seem to be broken.
The company has not admitted that it broke the Equality Act by selecting largely UK seafarers for the sack – which looks suspiciously like discrimination on grounds of nationality.
The seafarers were given offers of compensation exceeding what the company calculated an employment tribunal might have awarded. Each worker was given a 14 day ultimatum to accept the offer and sign non-disclosure agreements. Unsurprisingly, the overwhelming majority accepted the offers rather than risk getting less in a tribunal (which might take a year). The company anticipates recouping these costs from the poverty wages it will pay the new crews.
This sorry saga shows that UK law is wholly inadequate to protect workers against such sackings and flouting of the law, conduct which has been condemned in the strongest terms by the whole country. Even the government, having stalled on its promised Employment Bill for the last four years, has now pledged to come forward with a package of measures to prevent such behaviour in the future. At the time of writing, what this package will contain is not known, save that it will be too late for the seafarers whose 14 days will run out.
There has been talk of applying the national minimum wage to ferries. But that would mean a savage wage cut for many and it would mean wages would be set by government instead of by collective bargaining. The government also might amend the law by increasing the maximum ‘protective awards’ (compensation for non-consultation). Such options would help. But they won’t deter employers who have calculated the cost of breaking the law and are prepared to pay it in the expectation of future profit.
The government could do a U-turn and adopt MP Barry Gardiner’s Fire and Rehire Bill. That would allow the unions to seek an injunction to prevent dismissals without consultation.
But all these measures miss the real problem here, namely that forty-two years of anti-union legislation have neutered the capacity of unions to defend their members.
Of those restrictions, the single most significant reform would be to restore the right to organise solidarity action. If dockers, tugboat crew, pilots, cleaners, ship repairers, refuse disposal teams, refuelling workers, and lorry drivers could be called upon to take solidarity action and refuse to service the ship – as the dockers in Rotterdam have done – this dispute would be quickly ended (and without applications to the courts). These workers and their unions share the common outrage at what has happened. But, in this country, unions are legally prohibited from organising industrial action by workers who are not the direct employees of those in dispute.
The removal of this one prohibition would enable the solution which is so obviously needed in the ferry industry: union pressure to secure a collective agreement for the sector so that one ferry company cannot undercut another by reducing wages, terms and conditions.
We need the restoration of the freedom of unions to defend their members. We need legislation guaranteeing unions the legal space, protected from injunctions and damages claims, in which to organise industrial action. That is the only legal way to rebalance power at the workplace and give workers the leverage to resist tactics like those of P&O. The only way to fight back against the all-out attack on the incomes and conditions of the working class which is now being waged.
- Lord John Hendy QC is Chair of the Institute of Employment Rights, Vice President of the Campaign for Trade Union Freedom, and President of the International Centre for Trade Union Rights.
- You can follow him on Twitter at https://twitter.com/JohnHendyQC
