Labour will reform unfair dismissal & redundancy law so that workers won’t be dismissed for failing to agree a worse contract.
By Justin Madders MP. Labour’sÂ Shadow Minister (Business and Industrial Strategy) & Shadow Minister (Future of Work).
What has happened to the P & O workers has been a national outrage and if anything sums up the weakness of UK employment law, it is the admission made by P&O Ferries chief executive Peter Hebblethwaite to Parliamentâs Transport Select Committee that they knew they were breaking the law by instantly sacking 800 staff, but decided to go ahead anyway.
The experience of the P&O workers is possibly the most blatant example in recent years of how some employers just donât believe that workers deserve respect and protection in the workplace. Sadly there are countless other examples up and down the country where unscrupulous employers have exploited existing weak laws, or ignored them altogether, to leave millions of workers in insecure work or with worse terms and conditions than they had previously enjoyed.
Of course, many businesses have had a tough time during the pandemic but P&O have benefitted from millions of pounds from the taxpayer during that period and it appears to them that the threats made by Ministers of unlimited fines are hollow ones and they have made the cynical calculation that the companyâs bottom line will still be better off by completely ignoring the law.
The entire purpose of the furlough scheme was about keeping people in work during that period. So to cast aside so many loyal employees just as life returns to normal, and replace them with cut price overseas workers being paid well below the minimum wage, is a slap in the face to both British workers and British taxpayers.
For too long the Tories have allowed the rights of working people in this country to be watered down and for insecurity at work to become the norm.
It is no coincidence that it was British workers who took the brunt of the decision from P&O, not workers in their other operating countries.
The sad truth is that people in this country are easier and cheaper to sack than many of our European neighbours and it is time that was changed.
That is why the Labour Party has proposed our own New Deal for Working People which will bring in real protections for workers within the first 100 days of a Labour Government.
This programme will raise pay, improve job security and banish bullying tactics like fire and rehire from our workplaces. Stronger workplace protections are fundamental to why we are here, we are the party of working people, the clue is in our name, the Labour party.
Our green paper on employment rights, which has been produced in conjunction with the trade union movement, has a comprehensive proposal to end the scandal of fire and rehire.
Firstly, we will improve information and consultation procedures so that employers are made to consult and reach agreement about contractual changes with the workforce.
Secondly, we will reform unfair dismissal and redundancy law so that workers wont be dismissed for failing to agree a worse contract. And finally we will ensure that notice and ballot requirements for trade unions will not inhibit them taking defensive action where fire and rehire tactics are being threatened by an employer.
As we go into the next election the Labour Party will present to the British people a comprehensive set of reforms to the workplace that will ensure job security and employment rights are placed once more on a firm footing.
BBC Report: P&O Ferries Forced To Reverse Attempted Pay Cuts
The RMT Union has received reports of agency workers at Dover being asked to sign contracts replacing their old ones with reduced payment.
The union reported P&O Ferries to the Maritime and Coastguard Agency, which ensured the new workers retained their original wages.
The company has been asked for comment but has so far not responded.
P&O Ferries sacked almost 800 employees last month and brought in cheaper agency workers on some of its boats, in a move it said would ensure the future of the business.
However, the National Union of Rail, Maritime and Transport Workers (RMT) said the firm was now “trying to bring in an exploitative model, with the lowest possible standards they can get away with”.
RMT said that a seafarer on the Spirit of Britain ferry at Dover had initially contacted the union begging for help in a dispute over pay.
In an email seen by the BBC the worker wrote: “They don’t care about our rights. They try to give us less money. We are desperate.”
Transport Secretary Grant Shapps said it was “good P&O have reversed [the] further attempt at a pay cut”, but added that “they must go much further and pay the minimum wage like all UK businesses”.
“We will legislate to force them, but they could win back some much needed credibility by acting now,” he said.Â The Spirit of Britain resumed cross channel services this weekend
On Friday, the Spirit of Britain was cleared to resume sailing after inspections by the Maritime and Coastguard Agency. It had been held at the port since 12 April due to a number of unspecified deficiencies, according to the regulator.
It is P&O’s first Dover to Calais ferry to recommence operations, with services set to resume on Tuesday morning.
The seafarer who contacted the RMT told the union that they were being forced to work without contracts, after old ones had expired. The worker claimed documents had also been lost by P&O.
The worker wrote in their email to the union: “This is my sixth day working without a contract, please help us!”
On Friday, the RMT went aboard the Spirit of Britain to speak with seafarers after being previously refused access.
National secretary Darren Proctor, who was on the visit, said P&O Ferries initially did not want to let them on, instead offering the use of a meeting room in the port. The RMT declined, quoting the ISPS Code, which is a comprehensive set of measures designed to strengthen the security of ships and port facilities.
Once on board, the union’s representatives were chaperoned to a new lounge on the ferry for pets, where the RMT inspectors were able to speak directly to newly employed workers.
The RMT said it had spoken to a number of workers from around the world who have joined the ferry’s crew who shared similar complaints.
Mr Proctor said P&O Ferries had “brought people in on a month contract, some on two-month contracts” and then told them that they have to accept lower pay rates if they want to stay on.
“Others are coming in on four-month contracts on lower pay. P&O is undermining safety and creating a lowest possible denominator in ferry standards,” he said.
The union complained to the Maritime and Coastguard Authority (MCA) who took action and affected seafarers’ contracts were amended with their original wages reinstated.
RMT said that P&O was “desperate to keep these new crew on board because they’ve been on board for four weeks now and these crews were beginning to have familiarity with the vessels. They need familiarity to get them sailing again.”
Tim Morris, chief of trade association UK Major Ports Group, said P&O Ferries’ newest move was “clearly not great news for the reputation for maritime in the UK”.
He told the BBC’s Today programme the ports industry was “disappointed and surprised as everyone else on what has gone on”.
“It’s not how we operate in the ports sector,” he said. “We hire locally, we pay well, we have well established industrial relations.”
Mr Morris said there was a law that stopped port operators “picking and choosing who we let into our ports outside of some very narrow safety constraints”.
“Whilst we’re as disappointed and surprised as everybody else, there needs to be a change in the law before employment conditions can be linked to port access,” he added.
Last month, P&O Ferries boss Peter Hebblethwaite admitted to MPs that the decision to sack 800 workers last month without notice broke the law.
He said there was “absolutely no doubt” that under UK employment law the firm was required to consult unions before making the mass cuts.
However, he said no union would have accepted the plan and it was easier to compensate workers “in full” instead.
The P&O boss also said he would make the same decision again if he had to.
Mr Shapps has said he wanted to see British ports refusing access to ferry companies “who don’t pay a fair wage”.
He said the government would consult on the changes needed to make it a legal requirement, but urged ports to take action “as soon as practical”.
However, British ports have described the new pay plans for the ferry industry as “unworkable”.
“The ports industry is genuinely sympathetic towards the situation of the impacted seafarers, however we would suggest that ports are not the competent authorities to enforce rules on employee salaries or working conditions in the shipping industry,” said Richard Ballantyne of the British Ports Association.
By Mark Dickinson
Â The 17th March is a day that will live in infamy in the history of the British maritime industry. This is the date on which 800 loyal and dedicated British seafarers were discarded by P&O Ferries without any regard for them, their families and their communities. A once renowned company saw its reputation shattered in the space of a three-minute zoom call.
This was bad, but worse was yet to come. At an appearance before the joint transport and business Select Committee P&O Ferries CEO Peter Hebblethwaite brazenly admitted that he had broken the law, and he would âmake this decision againâ, because he knew no union could ever accept what his company was proposing.Â Thatâs one thing he did get right!
It cannot be understated how shocking this statement was. P&O Ferries didnât just hold its entire UK seafaring workforce with contempt, but the rule of law of this country.This strikes at the heart of the issue. P&O Ferries broke the law by not consulting with Nautilus International and the RMT, but the sanctions appear to be limited â sufficiently weak that P&O Ferries simply calculated the cost it would have to pay for refusing to consultÂ and for unfair dismissal cases and factored that into redundancy offers. Thus, a very dangerous precedent has been set: if you are big enough, with deep enough pockets, you can pay your way out of complying with the law.
This needs to change. Government needs to urgently look at providing a statutory right to an injunction to compel consultation and lifting the cap on protective awards and ensure no company can buy its way out of consultation with unions, otherwise the law isnât worth the paper itâs written on.
Peter Hebblethwaite, by his own admission, broke the law, but there was no immediate legal mechanism that we could have reasonably used to have stopped him. If my union, even potentially, broke the terms of the Trade Union Labour Relations and Consolidation Act 1992 in arranging industrial action, I am pretty confident an injunction would be swiftly granted and damages and compensation for any losses awarded.
This begs the question: Why are trade unions held to a higher standard than corporations? It is clear from the P&O Ferries example that there needs to be a provision that allows for trade unions to apply for immediate injunctive relief to reverse the actions of an employer if they have failed to consult.Â Lifting caps on protective awards and providing for unlimited fines for companies and their directors would also help to ensure that those minded to try and buy their way out of a tribunal case would think twice before doing so.
There are glaring gaps in UK employment law, including the practice of fire and rehire. Some have suggested that fire and rehire isnât relevant in the P&O Ferries situation – this is wrong. Professor Alan Bogg, labour law expert at University of Bristol, described it as âfire and rehire on steroidsâ. Over 90 maritime professionals who were dismissed were offered re-employment with P&O Ferries through a foreign crewing agency. They were offered employment with the Malta based incoming crewing agency, International Ferry Management (IFM), and that should have been on the basis of the TUPE Regulations.
The government has stated its intention to introduce a statutory code of practice which must be followed in carrying out dismissals, with a 25% uplift in compensation for failure to do so, but this makes little difference when, as mentioned, companies can simply buy their way out of a tribunal process. Fire and rehire must be outlawed, no dilutions or equivocations.
The Insolvency Service has announced it will pursue both criminal and civil investigations into P&O Ferries. This is a move we urged the Secretary of State to take in the letter we wrote to him in the immediate aftermath of P&O Ferriesâ decision. Those responsible must be held to account. However, this cannot be the sum-total of government action. Substantive action must be taken to close the major gaps in employment law that the companyâs actions exposed.Â Soon after dismissing the 800 seafarers, P&O Ferries announced its intention to replace the crew with seafarers from abroad, employed through IFM that was established in February 2022. These new crews would not only be paid less than the UK National Minimum Wage they will smash the established rates for our members and those of the RMT.
This narrow issue has been the main focus of government action and is included in the Transport Secretary Grant Shappsâ nine-point plan to âProtect our Seafarersâ. This plan centred on extending the national minimum wage to cover seafarers and creating minimum wage corridors between the UK and international partners. This is a welcome move, Nautilus has long called for such measures to underpin and support the employment of UK seafarers as part of our âBuild Back Fairerâ manifesto. However, this outrageous action by P&O Ferries goes much further than just minimum wage coverage.
Nautilus International, working with the RMT and industry partners, has developed our âFair Ferries Strategy.â The central aim of this strategy is to introduce an industry wide Fair Ferries Framework Agreement that would require collective bargaining agreements to be concluded with ferry operators on domestic and international routes to and from the UK ports.Â These agreements would not represent the minimum wages or conditions but reflect UK norms and be at levels which would encourage the employment of local seafarers.
To enforce this agreement we have urged the government to ensure that Maritime & Coastguard Agency (MCA) has the powers to ensure ferry operators comply with the agreement. We believe this balanced but ambitious strategy, if implemented, would create a fair and sustainable future for the ferry industry in the UK. Effectively stopping operators, like P&O Ferries, from treating British seafarers as expendable while ensuring a competitive environment for businesses to flourish. A common and decent baseline for ferry operators.
This would create a true âlevel playing fieldâ that encouraged a race to the top rather than a continuation of this destructive competition that drives a race to the bottom in employment and safety standards. Given the strategic importance of our ferry services to an island nation that I believe is a goal worth fighting for.
The outpouring of public support for the 800 sacked seafarers has been enormous with demonstrations taking place across the UK. It is clear this issue has united the country. I am rarely left speechless, but I found myself lost for words as I watched the fans of my football club, Liverpool FC, raise a banner in the historic Kop that declared âSeafarers are not a bank balance: United we standâ.Â A hugely symbolic act of solidarity from a city imbued with the struggle for workerâs rights.Â If the government are listening, they will hear the indignation across the country with a unified call for action. P&O Ferries must be held accountable for its actions on that fateful St Patrickâs day and this can never be allowed to happen again. This can only happen if government close the loopholes in employment law and work with us and industry to create a fair and sustainable ferry industry fit for the future.
Mark Dickinson is General Secretary of Nautilus International, the union for Merchant Navy officers and professionals
By Barry Gardiner MP
Loyal workers all over Britain were left wondering after P&O sacked 800 staff by Zoom, “could I be next?”
So often we think âThat could never happen to meââŚuntil it does!
When I first started campaigning to stop the disgraceful tactic of Fire and Rehire over a year ago people didnât understand there was a problem. They could not believe it wasnât already against the law. After all these workers had a contract. That must mean something. Well now we know the shameful truth: The law in our country protects bosses not workers.
That is why I drafted my Stop Fire and Rehire Bill. It put good practice into law and penalised bad employers like P&O who failed to consult and negotiate with their workforce.Â It would have stopped P&O in their tracks and allowed workers to secure an injunction to reverse these sackings because of the companyâs failure to consult and open up its books. But as union members know only too well, that Bill was blocked by the government.
When the P&O scandal broke, ministers were keen to sound tough. They said they were outraged and demanded that P&O give seafarers their jobs back. But after the deadline passed and many workers had been bullied into signing the compensation package (and the Non-Disclosure Agreement that went with it!) the governmentâs limp response was to announce a new Code of Conduct that would âguide companiesâ about how to behave! Did they not realise that if companies like P&O are prepared to break the law then the chances of them obeying a non-binding code of practice are zero.
The point is this. It is cheaper for the company to act illegally because the penalty for breaking the law is less than the cost of operating within it. Because of this, even decent companies who do not want to treat their workers badly are undercut by the cowboys who do. It is a downward spiral. That is why we need primary legislation to set a fair baseline from which companies cannot grind down workers wages, terms and conditions in a race to the bottom.
One of the key elements of my Bill and of any future Labour legislation on employment rights is to level up the playing field between the employers and the Unions. By issuing the Section 188 and threatening workers up front before any negotiation or consultation has happened, the Union is often unable to fight back immediately. The existing anti-trade-union legislation demands that the Union notify, then ballot and then notify once again before any strike action can be taken. This often takes 4 weeks or more. In the meantime, workers have been called in one by one by management and put under enormous pressure. âHow are you going to pay your rent?â âHow are you going to feed your kids?â âYou need to sign, because we have hundreds of people lining up to replace you if you donât.â
The hapless Employment Minister, Paul Scully, was quick to insist that P&O was not an example of Fire and Rehire. Heâs right. It is worse. The idea that an employer simply sacks you because he can pay someone even less to do your job is disgusting. The law needs to insist that, rather like the TUPE regulations, anyone brought in by management to replace fired workers must be paid the pre-existing rate for the job.
So the next time you hear Tory ministers saying how disgraceful P&O have been and how appalled they are that loyal workers have been treated with such contempt, ask them why they filibustered to block the very Bill that would have prevented it. Insecurity in the workplace is not an accident. It is government policy. We need new employment laws now. I am proud to be a trade unionist and a member of Unite and I am in a union that always has and always will fight for fairness for working people.
By Granville Williams, Media North
Right-wing outrage at P&O Ferries highlights the contradictions at the heart of Tory policies towards workers’ and trade union rights
There was remarkable unanimity on the front pages of national newspapers on Friday 18th March. With the exception of The Times every one of them led on the shock news that DP World, a global logistics group based in Dubai, had the day before abruptly fired 800 seafarers working on P&O Ferries.
The papers all strongly condemned DP Worldâs action.
On the previous morning, it had been clear that there was going to be bad news. An abrupt statement was issued by the company that all UK sailings had been suspended pending a âmajor announcementâ. Only cargo and passengers on Dover-Calais crossings were told to turn up, as they would be accommodated on alternative services.
Later that day, P&O workers were informed by a three-minute Zoom announcement from P&Oâs Andy Goode that, âvessels will be primarily crewed by a third-party crew provider âŚ Your final day of employment is todayâ.
Agreements on 48-hour week working, payments for overtime and other conditions, will be torn up under the new contracts.
DP World had a well-planned covert operation in place to have all P&O Ferries in ports in order to sack 800 crew, including officers, with immediate effect while agency workers were positioned to take over the running of the ships after a short training period. The global group also had security staff on stand-by to move onto the ships once the announcement was made.
The Financial Times disclosed that International Ferry Management, a Malta-based group first registered on 11 February, was appointed to act as the crew management company to replace sacked P&O workers. The same report also states that Peter Hebblewaite, the chief executive of P&O Ferries, has written to its remaining employees saying the new arrangements would reduce costs by 50 percent.
Department of Transport officials had been told about the companyâs plans on Wednesday but did not tell anyone, citing âcommercial sensitivityâ.
The company badly miscalculated if it thought this operation would run smoothly. Sheffield MP Louise Haigh, the shadow secretary of state for transport, made a strong intervention in parliament on Thursday afternoon.
For Boris Johnson and Conservative MPs this outrageous behaviour by a global logistics group poses uncomfortable questions. Firstly, the actions by DP World fit partly into the tactic of âhire and rehireâ used widely by UK companies. Nautilus, the union along with the RMT involved in the dispute, said some of its members had been approached by agencies to return and work for P&O on cheaper agency contracts. Interestingly, back in October last year, Conservative MPs voted against a bill that would have banned this practice.
Secondly, Boris Johnson was in the Middle East to plead for more oil to replace that from Russia. On Wednesday, the day Ministry of Transport officials were told about P&O plans, Johnson had just left meetings in the United Arab Emirates. Sheikh Mohammed bin Rashid Al Maktoum is the emir of Dubai and billionaire head of the state that owns and controls P&O. In a strong leader, The Guardian points out:
âMr Johnson was forewarned about the companyâs plans a day before they were enacted â just as he left meetings in the United Arab Emirates. Itâs not a stretch to think that he was told while there. After all, Sheikh Mohammed is the UAEâs prime minister. Mr Johnson was seeking help to ease rocketing oil prices. It would be a tawdry deal if he traded away workersâ livelihoods for a few barrels of oil.â
DP World and the unacceptable face of capitalism
The media are also now focusing in forensic detail on the company that owns P&O Ferries and itâs not a pretty picture. Back in 1973 the prime minister, Edward Heath, used the phrase âthe unacceptable face of capitalismâ to describe Tiny Rowlands and Lonrho. We are seeing it writ large again here with DP World. The company has hired New Century Media, a PR firm that has also advised oligarchs and Kremlin allies, to clean up its image.
The company owes ÂŁ146m to the Merchant Navy Ratings pension fund that pays the P&O Ferries staff pension, whilst it has just spent ÂŁ147m sponsoring golfâs European tour. The UK government wants to privatise and deregulate but itâs ironic really that two of the eight container ports that Rishi Sunak has designated âfreeportsâ â Southampton and London Gateway â end up in the hands of the state-ownedÂ DP World.
P&O Ferries received ÂŁ10m in furlough money and was also paid ÂŁ4.4m through a government emergency scheme to keep freight flowing during lockdowns in 2020.
These are not the first job cuts at P&O Ferries since DP World bought the business. In an early response to the pandemic, it made some 1,100 employees redundant, which at the time represented just over a fifth of the workforce.
The P&O sackings on Thursday came in the same month that the parent company announced bumper profits of $896m (ÂŁ751m) in 2021, up from $846m in 2020.
Low-tax, low-regulation, union-free economy
The RMT union is traditionally a pet hate for the bloc of Tory-supporting national newspapers, and the unanimity in national newspapers shown on Friday didnât take long to break. After a demonstration in Dover when ConservativeÂ MP Natalie Elphicke was heckled the Daily Telegraph led the attack on the RMT.
The wave of support amongst politicians for the sacked P&O workers also highlights yet again the contradictions at the heart of Tory policies towards workersâ and trade union rights.
For the European Research Group the post-Brexit vision for the UK is a low-tax, low regulation, union-free economy able to compete globally. Inevitably, it will mean a race to the bottom for working conditions. This directly clashes with Johnsonâs bluster about levelling up, and promoting a high-wage, high-skill economy. But we know who Johnson will listen to as he desperately seeks the support post Partygate of this hard-right group of Tory MPs.
Really though itâs a no-brainer. The actions by DP World showed utter contempt for workersâ rights, employment law and the UK government by presenting it with a fait accompli. The prime minister could show he really does back Britain by using all means possible to get the P&O workers reinstated â fines on the company, enforcing repayment of the funds they have received, cancelling the freeport contracts at Southampton and London Gateway.
Donât hold your breath though. A report cites an industry expert: âThe government will be all bluster but thereâs a limited amount they can do without full-scale intervention.â
Granville Williams is the editor of âItâs the Media, Stupid! The Media, the 2019 Election and the Aftermathâ (2020) and edits MediaNorth which campaigns for strong regional media and strongly supports alternative media, both print and online.
P&O FERRIES AND THE MILITARISATION OF INDUSTRIAL DISPUTES
By Andy Green
The mass sackings of 800 workers by P&O Ferries is rightly to be condemned, but we should not believe that the action taken by P&O Ferries is unprecedented or unique, it is not.
Employment Tribunals see a steady stream of similar cases, failure to consult is by any definition ânormalâ. So many employers ignore the requirement to consult and are prepared to pay for the privilege, accepting that they should have consulted with their workers and simply paying out to compensate each worker for the consultation period that they so blatantly ignored.
The penalties for ignoring the requirement to consult are often for the employer to simply pay the employee a sum to cover the consultation period. An employer will have to pay wages throughout the consultation period anyway, so why bother to play by the rules? In fact, an employer will readily pay extra over and above to the employee just to prevent the inconvenience of an Employment Tribunal. What has made the headlines this time is the sheer scale of the actions taken by P&O Ferries, no more.
No investigation launched by any government body into the behaviour of P&O Ferries will likely result in any positive change for workers. Boris and his âbuild back betterâ campaign, promises to release employers from burdensome regulation. Changing any regulation that supports employment rights and collective bargaining will be quietly killed as soon as it is convenient to do so.
What appears to have gone relatively unnoticed, is the use of private security contractors, Interforce, former military personnel and police officers who have been contracted by P&O Ferries to act as the employerâs âmuscleâ against their own employees.
What is more, the âsecurityâ personnel were legally able to enter these workplaces, and to restrain and handcuff employees if necessary. Let me say that again, the employerâs security personnel were able to handcuff employees if required.
Not only was the plan developed to sack these 800 loyal workers secretly concocted but involved the planned use of private security staff to put employees in chains!
What kind of society would blindly accept this as ânormalâ? Former military personnel ready to restrain and handcuff workers who have been illegally sacked. Where is the outrage?
Interforce have made a press statement denying claims that balaclavas and handcuffs were used, but the email sent out to staff clearly shows that they were instructed to bring their handcuffs with them. The intention was to use them if these security personnel felt the need to do so.
What can be right about any worker who chooses to exercise their right to object to being unfairly sacked, and for their employer to hire former military personnel to restrain and handcuff them for doing so?
Where was the Governmentâs outrage regarding this act, its indignation at an employerâs self-appointed right to restrain employees if it deems it necessary?
This Government is not content with burning employment rights and culling collective bargaining, it is helping to normalise the shackling of the workers themselves.
Andy Green is the Unite convenor at Tilbury Docks, the Unite Executive Council member for Docks & Waterways and Secretary of the Campaign for Trade Union Freedom
By Steve Cottingham, Employment Rights Lawyer
Â The outbreak of Covid and the subsequent lockdowns and restrictions emboldened some employers to use the long â established process now known as Fire and Rehire to attack their workersâ terms and conditions of employment. Last month, P&O Ferries took matters further by firing about 800 employees from their ferries without rehiring them. P&O Ferries gave no prior notice to their employees, dismissal was conveyed by a video message, and the company refused to consult with the trade unions representing their employees. It appears that P&O Ferries intend to replace those sacked with workers from other countries, supplied by agencies, on inferior pay and conditions of employment.
Prof Keith Ewing, Lord John Hendy QC and others have, quite rightly, identified the various ways in which P&O Ferries have breached UK employment law. Each individual employee could have claimed for unfair dismissal and/or redundancy (provided they had worked for P&O Ferries for at least two years continuously); notice pay (provided they had worked for P&O Ferries for at least four weeks); as well as compensation for any outstanding annual leave entitlements. It has been suggested that claims for race discrimination are a possibility as the only P&O Ferriesâ employees to be dismissed appear to have been British. Any trade unions recognised by P&O Ferries can claim Protective Awards for the companyâs refusal to follow the statutory information and consultation procedure covering mass dismissals. Compensation for failing to inform and consult will be based on the numbers of union members involved.
When news of these dismissal came to light, P&O Ferries initially appeared to argue that they had not breached UK employment law by dismissing nearly 800 employees by video message and refusing to discuss those dismissals with their trade unions. Perhaps P&O Ferries were encouraged by UK employment law which contains exceptions for seafarers or maybe the company thought that they could rely upon the fact that their vessels were registered in overseas jurisdictions like Bermuda and Cyprus. By the time that he appeared before a committee of MPs in late March, the P&O Ferriesâ CEO admitted that the company had broken the law but went on to say that he would do so again if the circumstances arose.
Trade unions, politicians and many others have expressed outrage at P&O Ferriesâ actions, their subsequent admission that they had broken the law and their refusal to reconsider and reinstate their British workforce. The Prime Minister initially said that the government would be taking action against P&O Ferries, citing section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA). By the end of March, the Transport Secretary rowed back on this statement by announcing that the UK Government was not in a position to take legal action against P&O Ferries. The government has called for P&O Ferries to reconsider the dismissals. Government politicians have called for the P&O Ferriesâ CEO to resign. Both calls have gone unheeded by the company. Latest reports suggest that the Insolvency Service will be investigating potential breaches of both criminal and civil law by P&O Ferries.
P&O Ferries pressed on with the dismissals by offering settlement agreements, which routinely include non-disclosure clauses, to each of the dismissed employees. By the end of March, the company were claiming that all but one of the dismissed employees had already signed off their agreements. Settlement agreements in these circumstances force the employee to sign away their right to any form of legal claim against, or compensation from, P&O Ferries in return for a lump sum payment. (In no way is it suggested that P&O Ferriesâ employees are wrong to sign such agreements. Faced with the loss of their employment, rising utility bills and increasing inflation, most will have felt that they had no choice but to accept the terms on offer).
While there has been widespread condemnation of P&O Ferriesâ actions, this obscures the more basic point. It is too easy for employers to dismiss British workers. As long ago as 1997, Tony Blair claimed that Britain had the most restrictive trade union laws in the western world. Little has changed since then. A combination of anti-trade union laws, weak employment legislation and inadequate compensation has allowed employers to effectively buy out jobs and buy off terms and conditions which hinder their ability to optimise profit.
The UK governmentâs response has been to propose some changes to the law. These contain some positives like a proposed European corridor with a European minimum wage for seafarers; power for British ports to refuse access to ships not paying minimum wage and powers to carry out rigorous safety checks on vessels. There is still no prohibition against fire and rehire although a Code of Practice is promised. A Code of Practice does not usually have the full force of law â it remains to be seen how such a Code will be applied.All of this will be too late to reverse the dismal situation at P&O Ferries. By the time any Code of Practice has taken effect, the 800 jobs will have gone forever. P&O Ferries have claimed that there will be a minimum payment of ÂŁ15,000 per employee with some receiving more. The Guardian quotes a figure of ÂŁ36.5 million being paid by the company to buy out terms and conditions which the company deems to be to be unprofitable.Any employee who refused the P&O Ferries offer and wanted to take legal action against P&O Ferries would have had to wait months for their case to be heard in the Employment Tribunal system. Compensation for unfair dismissal, redundancy and protective awards are capped by law. Employment Tribunals have the power to award reinstatement in unfair dismissal cases, but rarely do so. Any workers who chose to stand on their rights would have found that the outcome, almost certainly compensation only, would not have fully compensated them for the loss of their job, the pay and conditions and the future that they have lost.
The P&O Ferries dismissals are the result of a lightly regulated employment market. The outrage at P&O Ferriesâ actions should give rise to changes in employment law.
Time is important in cases like these. P&O Ferries imposed a deadline of 31 March for employees to accept their terms. It appears that most, if not all, employees have accepted the money on offer. This means that the prospect of the employees or their trade unions taking legal action against P&O Ferries has receded.
Workers faced with an employer who tries to dismiss them without consultation should have the right, usually via their trade union, to apply for an injunction to prevent dismissals from going ahead. British courts, but not Employment Tribunals, have the power to issue injunctions but rarely do so in employment cases. (The High Court recently awarded an injunction against Tesco who were proposing to fire and rehire some USDAW members but this is the exception rather than the rule). A statutory power to grant an injunction to prevent an employer from dismissing employees should also include a provision that any settlement agreement signed by an affected employee will be null and void while the injunction remains in place.
The law concerning information and consultation on multiple dismissals was designed to protect jobs. Injunctions would prevent employers from simply buying out employeesâ rights.
British Employment Tribunals have the power to order reinstatement or reengagement when they find a dismissal unfair. This power is used in less than 1% of successful unfair dismissal claims. A simple change of wording, requiring Tribunals to consider reinstatement as the primary remedy would make employers wary about dismissing employees, especially in multiple dismissal cases.
Compensation for unfair dismissal, redundancy and protective awards is subject to a statutory cap. Removal of this cap would deter some employers from dismissing employees and buying off their rights under settlement agreements. Uncapped compensation for unfair dismissal, perhaps along the lines of personal injury claims in this country, would ensure that unfairly dismissed employees are genuinely compensated for loss of employment; loss of pay and pension; as well as loss of future prospects.
The anti-trade union laws were designed to prevent trade unions from taking prompt industrial action in just such circumstances as those that arose at P&O Ferries. The current notice and balloting restrictions mean that the unions would not have been able to start industrial action against the P&O Ferries sackings for at least a month after they took effect. In the interim, P&O Ferries, under no such restriction, have been free to offer settlement agreements to the dismissed employees.
The anti-trade union laws outlaw so-called secondary industrial action too. This prevents British workers from taking action in solidarity with their sisters and brothers at P&O Ferries. Dock workers in Rotterdam have taken action in support of the P&O Ferriesâ workers, but British workers are prevented, by law, from doing so.
For many years the Campaign for Trade Union Freedom has warned about the effects of the antiâtrade union laws. The P&O Ferries sackings portray those consequences writ large. A combination of legal restrictions on trade unions, weak employment laws and a government reluctant to intervene has allowed P&O Ferries to ignore their legal obligations. Unless the restrictions on trade unions are lifted and employment laws are strengthened, other employers will continue to take advantage.
Steve Cottingham is an employment law solicitor and has previously worked at the leading trade union law firms. He is a member of the Institute of Employment Rights Executive Committee
âFire and Replaceâ NOT âFire and Rehireâ:Â Â What is to be done?
By Professor Keith Ewing, professor of public law and Kings College, London and President of the Campaign For Trade Union Freedom
Grant Shappsâ nine-point plan in response to the P&O affair has been widely criticised as falling well short of what is required to deal not only with the ongoing dispute, but also with its legacy to ensure that this does not happen again. Yet despite the feigned surprise and faux outrage of the political classes, P&O is not a one off problem, any more than were the other recent corporate scandals.Â It is a consequence of the systemic weaknesses of British labour law, which need to be addressed.Â Â Â So what needs to be done?
First, the Shappsâ plan does nothing to deal with the problem of information and consultation.Â The announcement by the Insolvency Service that a criminal investigation is underway into the recent redundancies at P&O makes it premature to propose that the criminal law needs to be modified.Â Â Letâs wait and see.Â And letâs wait and see if the law needs to change on directorsâ personal liability.Â Â What is clear, however, is that the duty to inform and consult employee representatives needs to change.
It is now widely accepted across the political spectrum that employers should be stopped from making redundancies until consultation duties have been complied with.Â There are obvious reasons for such a restriction.Â There is also an obvious solution:Â Â it should be open to employee representatives, as well as a government agency (as some have proposed), to apply to the High Court for an injunction to restrain redundancy dismissals until such time as consultation has taken place.
It should also be open in the alternative for employee representatives to apply to the CAC for an order to restrain such dismissals:Â the High Court is not an accessible forum for those without means. Â A CAC cease and desist order could be registered in the High Court; failure to comply with the CAC order would be punishable as a contempt of court in the normal way.Â Â There is also a case for giving government the power to stop dismissals from taking place where the employer has failed to provide sufficient justification.
Secondly, the proposal to extend the statutory minimum wage to British ferries, while welcome, does not address the problem exposed by the P&O affair.Â Nor is it enough if the governmentâs aim is to ensure that British seafarers are to receive âfair payâ:Â the âminimum wageâ is not by any stretch a âfair wageâ.Â The Achilles heel here is the global supply of workers available to work at substandard rates in substandard conditions, enabling employers to import workers to do jobs that cannot be exported.
The aim should be to insist not on the âminimum wageâ, but on the âprevailing wageâ.Â The practice of âfire and replaceâ will be stopped only if the employer is required to pay the replacement workers the same as those workers they have replaced.Â Â This may require an overhaul of the TUPE regulations if necessary (now possible that we have have left the EU); better still, it would require a return to sectoral collective bargaining in the ferry (and in other sectors) to set minimum wage rates for the industry as a whole.
In other words, the problem of âfire and replaceâ will be resolved only if we remove the opportunity and incentive for employers to use it.Â Â This can only be done by ensuring that the identity of the employer is irrelevant for pay purposes:Â regardless of whether a worker is directly employed by an employer or supplied to the employer by an employment agency or labour supply company, there is a rate for the job determined in negotiations with a trade union that applies to everyone.Â Â All should be paid the same rate for the same job.
Thirdly, the governmentâs plan to privatise enforcement of the minimum wage by the British Portsâ Association appears from media reports to have been rejected by port industry representatives.Â In that case, there is surely an additional option:Â Â restore the power of trade unions to enforce labour standards.Â This could be done quite easily by repealing what was openly acknowledged at the time as anti-ITF legislation when it was introduced by the Conservative government in 1982.
The legislation in question removes legal protection from ITF enforcement action, by denying protection for disputes between trade unions (such as the ITF) and employers (such as P&O).Â There would also have to be tweaks to the notice and balloting rules.Â This would then enable the ITF to boycott any offending vessel.Â Along with appropriate changes to the law of secondary action (changes in any event mandated by international law), other port workers would be empowered to support the ITF until the dispute was resolved.
In the recent past, it is conceivable that any such action could have been blocked by the European Court of Justiceâs decision in the VikingÂ case, on the ground that such action violated the EU principle of freedom of movement.Â Â Â But now that we are âfreeâ from EU law, there is an opportunity for the government to cut loose from these restraints.Â Â It is bizarre that Rotterdam dockers are currently permitted to take action against P&O which British workers are not.
Fourthly, there is the question of âfire and rehireâ, dealing with which is necessary if employers discouraged from using âfire and replaceâ, impose inferior conditions on existing staff instead.Â Â But it is not clear how the governmentâs proposal to ensure âfair, transparent and meaningful consultations on proposed changes to employment termsâ will help. Â We already have requirements for âfair, transparent and meaningful consultationsâ arising under both collective redundancy law and unfair dismissal law in relation to redundancy.
The âfire and rehireâ problem is a different problem and needs a different solution.Â Â In fact, there are two problems.Â So while there is already an obligation under collective redundancy law to consult about âfire and rehireâ, the first problem is that the consultation occurs too late to be effective.Â Â Consultation needs to take place before the employer formulates proposals to vary contractual terms, to explore other ways to deal with any economic difficulties faced by the business.Â Cue Barry Gardinerâs private memberâs bill.
The other problem also addressed by Barry Gardinerâs Bill is the fact that an employee fired for refusing to accept unilaterally imposed terms will be regarded as having been fairly dismissed.Â The governmentâs proposal thus misses the point.Â What is needed is a change to the legislation (and the case law thereunder) that currently enables employers to dismiss workers without redress.Â Â Legislation is needed to make clear that it is not a fair dismissal where an employee is fired for refusing to accept a unilateral variation of contract.
Finally, it is all the more remarkable that we should be discussing these problems this year, the year of the 50th anniversary of unfair dismissal law being introduced.Â Yet here we are faced with another example of the lawâs futility, in the case of P&O not âfire and rehireâ as in my view it is wrongly characterised, but âfire and replaceâ.Â The latter is perhaps the most extreme symptom so far of unconstrained employer power, which has been evident in multiple bad practices for many years, encouraged by a legal regime which is ultimately the responsibility of governmentsÂ which only radical steps will reverse.
Criminal and Civil Investigations Launched Into P&O Sackings
Edited from The Guardian
Criminal and civil investigations have been launched into the conduct of P&O Ferries after the operator summarily sacked nearly 800 crew without notice or consultation.
The Insolvency Service said it had âinitiated both formal criminal and civil investigationsâ into the circumstances of the redundancies, after making inquiries at the request of the government.
The move was confirmed in a letter to the business secretary, Kwasi Kwarteng, who tweeted that he and the transport secretary, Grant Shapps, would âcontinue to follow this matter closely as the investigations progressâ.
The announcement comes after Transport minister Grant Shapps appeared to admit court action would not be taken by the government, backtracking on an earlier statement by Boris Johnson.
The move will be welcomed by MPs on all sides who had urged the government not to let P&O escape without sanction for choosing to break the law.
The P&O Ferries chief executive, Peter Hebblethwaite, admitted last week in an extraordinary House Of Commons hearing that there was âabsolutely no doubt we were required to consult with the unions âŚ We chose not to do that.â
The firm laid off 786 crew on British contracts issued out of Jersey, telling them that they were being replaced by cheap agency workers with immediate effect, and imposing a deadline for them to accept a compensation payoff while forfeiting the right to legal action. All but one of the sacked crew had accepted by yesterdayâs deadline.
A spokesperson for the business department said on April 1st: âToday the Insolvency Service has confirmed it has commenced formal criminal and civil investigations into the circumstances surrounding the recent appalling behaviour of P&O Ferries, following the business secretary asking they undertake a thorough review.
âWe will not provide further comment while investigations are ongoing.â
The Insolvency Service reaches the point of launching an investigation when it considers there is sufficient good reason to do so and that it is in the public interest.
Pressure on the service to move ahead swiftly came soon after the parliamentary business and transport committee hearings, after it had given an original commitment to decide by 7th April.
P&O Ferries declined to comment.
The TUC general secretary, Frances OâGrady, said the probe must not âshy away from serious sanctions and big financial penaltiesâ.Â She added: âP&O must not be allowed to get away with its scandalous and unlawful treatment of staff. Firms who behave like corporate gangsters deserve far more than a slap on the wrist.â
Mick Lynch, the RMT union general secretary, said: âThis is long overdue but now gives clear grounds to detain P&Oâs ships while the criminal and civil investigations are completed, and justice is delivered for our members in face of this corporate hostility.â
Analysis: P&O Ferries, Consulting Workers and the Right to Strike
By Adrian Weir
Someone in my social media feed recently posted that the P&O Ferries scandal showed how vital it was that workers were in a union. That of course is true in any working environment but what P&O Ferries has shown us is that not only do workers need unions, at the same time workersâ unions need power.
Power may come from a number of sources, including the mobilisation of members. Power also derives from strong rights at work not only for individuals but critically for unions. The P&O Ferries case has so graphically shown that unions in Britain do not have the legal right to immediately defend their members. Nor do they have the right to take action to support workers who may not be their members involved in a dispute with an employer with which the union has no relationship.
It has long been recognised that although Britain was a founding signatory of the UNâs International Labour Organisation Conventions 87 and 98 on the right to organise, to bargain and arguably to strike the problem, and it is a big one, is Â that, as the TUC has found on numerous trips to Geneva to plead the case against the UK Government for Convention breaches since 1980, there is no effective enforcement mechanism against governments that create a legal framework that allows for example, P&O Ferries, to act as it chooses.
Prof Keith Ewing has elsewhere set out many other international legal instruments that the Government or P&O Ferries may be in breach of not least the obligation on a government to ensure that its civil service protects the human rights of workers.
On 22nd November last year Secretary of State for Transport Grant Shapps MP in Dubai met Sultan Ahmed Bin Sulayem, CEO of P&O Ferriesâ parent company DP World. At the meeting Sulayem said: âIn respect of our ferry business, thereâs a new low-cost competitor from Irish Ferries. This poses challenges in respect of P&Oâs operations. We kept ferries operating during the height of the pandemic to support movement of people and goods.â
The official minute does suggest that P&O Ferries owners did advise the Government in advance of the 800 sackings but as the Department of Transport appears to have done nothing it would seem that the UK Government is in another breach but with no remedy for those dismissed.
More concretely, although protected in the international instruments and in UK labour law it is the failure to inform and consult with the recognised unions, RMT and Nautilus, over the proposed redundancies that has caused such a backlash for P&O Ferries.
The failure of UK law to protect workers was explicitly spelt out by P&O Ferries CEO Peter Hebblethwaite when he appeared before the joint meeting of the Business, Energy, Innovation & Skills and Transport Select Committees in Parliament.
When pressed by Andy McDonald MP Hebblethwaite said: âThere is absolutely no doubt that we were required to consult with the unions. We chose not to do that.â He went on: âIt was our assessment that the change was of such magnitude that no union could possibly accept our proposal.â How right he was.
Hebblethwaite went on to say: âbecause we chose not to consult âŚ we are [compensating] and will compensate everyone in full for that.â It is reported that each of the 800 may be in line for an average of ÂŁ15,000 compensation (presumably after signing a settlement agreement). So there we have it, a major company wanting to change its business model can just factor in these costs, pay them, in this case apparently ÂŁ12 million, and essentially get away with it.
Hebblethwaite subsequently appeared before a similar committee at the Scottish Parliament where his grip on reality seemed to be slipping away. After admitting breaking the law over failure to consult RMT and Nautilus he said: âwe are very clear that we have not done anything illegalâ and commenting on what he hopes will be the future with crews supplied by agencies and no collective agreement he said âI absolutely respect unions and we will continue to work with the unions we have representing our workers.â
The initial sackings and Hebblethwaiteâs appearances before parliamentary committees has provoked even the UK Government into doing more than handwringing. On 29th March it announced a new statutory code âto prevent unscrupulous employers using fire and rehire tactics.â Let it not be forgotten that last Autumn this is the Government that talked out Barry Gardiner MPâs private membersâ Bill that attempted to do just that.
This initiative must clearly rank as a major damp squib even for a Government that has damp squibs as its stock in trade. Cutting through the Ministerâs bluster in the BEIS press release we find out that among a number of limited measures whatâs promised is that a court or Employment Tribunal may award, if it believes that the new code has not been followed, a 25% increase in the compensation payable to workers.
As deadline day for signing up to the companyâs offer has passed and with the overwhelming majority of those dismissed understandably accepting, Nautilus has correctly observed that P&O Ferries âhas got away with it.â
It could be assumed that in the P&O Ferries case the new Code would mean all the employer would have to factor in as transitional costs in the move to the new business model would be ÂŁ16 million instead of ÂŁ12 million today. As John Hendy QC remarked on Twitter: âThis wonât do.â
What would do however, is a major reform of labour law that would reinstate a right to strike in Britain. We need not just a right to strike in the direct employment relationship but additionally a right to take sympathetic strike action in support of workers that may have little or no connection with the first group proposing to take action.
With ro-ro ferries there clearly is not a need for a large number of dockers to handle these vessels and their cargo but there will be mooring gangs who secure the ships as they come alongside â it would seem that these workers are critical and if called on to strike in support of dismissed crews would have great impact in limiting the operation of services.
Other maritime workers essential for the operation of the ferries are shore based workers in the ports â staff who check in cars and commercial vehicles as they arrive at the port; others who marshal cars and lorries on the quayside prior to embarkation; and, those who drive the tractor units towing lorry trailers on and off the ferry. Again these workers seem critical and if mobilised to strike would bring ferries to a standstill.
We have the bizarre situation where dock workers in Rotterdam have taken strike action to support the 800, action that in the UK would be unlawful. It was not balloted, no notice given to the employer, not connected with their own employer, concerned with matters overseas â if in the UK the grounds for an employersâ injunction in the British courts are endless.
Such a necessary reform would, as John Hendy has argued, guarantee âthe legal space, protected from injunctions and damages claims, in which to organise industrial action.â
Adrian Weir is Asst Secretary of the Campaign for Trade Union Freedom
Some of the proposals are welcome, without a doubt. The proposal for European ferry corridors with a European minimum wage for seafarers and the proposal for the Maritime and Coastguard Agency to apply rigorous checks on safety are, of course, to be commended.
An amendment to the Harbours Act to enable British ports to refuse access to ships not paying the minimum wage is excellent â but how that will work in freeports in which P&Oâs owners DP World have a share is not clear.
Some of the proposals in the statement are far too weak. The requirement for ferries to pay the UK national minimum wage, for example. That will mean a savage wage cut for some seafarers and will have the effect of excluding the unions from wage negotiations. On the other hand, it will prevent ferry companies undercutting each other on wages and it will prevent them paying ÂŁ1.84 per hour as some sought to do.
Another weak measure is the proposal for a statutory Code of Practice on âfire and rehire.â That is a problem that cannot be addressed without legislation and just weeks ago the government voted down Barry Gardiner MPâs Bill on the subject. The proposed code is no substitute.
But it is the measures which the minister is not proposing that could have been the most significant.
In the first place, it is to be noted that the proposals so far do not involve the seafarers and their unions. Indeed, the unions seem to have been written out of the script.
The most important single step that could be taken would be to lift the blanket ban on secondary action to allow the workers and their unions to ask other workers who share the universal contempt for what P&O has done to boycott the ships until the seafarers are reinstated â just as the dockers in Rotterdam have done (and are allowed to do under Dutch law).
Secondly, the statement does not propose the solution which is so obviously needed in the ferry industry: a collective agreement for the sector negotiated between all the employers and the unions to set minimum wages, terms and conditions so that one ferry company cannot undercut another by reducing labour costs.
This step, âfair pay agreementsâ as Labourâs New Deal for Workers calls it, is common throughout Europe and has just been adopted in New Zealand.
Thirdly, if Shapps had adopted Gardinerâs Bill it would have allowed workers to obtain a court injunction to compel consultation to take place. In fact, none of Shappsâs proposals allow the workers to obtain injunctions to prevent behaviour such as that of P&O.
The statement also fails to remove the cap on compensation for failure to consult or for unfair dismissal in these circumstances, an obvious measure to discourage such behaviour in the future.
It does nothing to address the discriminatory nature of dismissals of British crew, or to protect against the gagging agreements (NDAs) which the seafarers had to sign to get anything. It says nothing about the apparent loophole which permitted P&O to escape the fine which would have been payable for failure to give advance notice to the authorities had the ships been registered in the UK.
What we need is the restoration of the freedom of unions to defend their members and 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. This is 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.
We need the restoration of the freedom of unions to defend their members â Lord John Hendy QC on P&O
âWe 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. â
On 17th 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 ÂŁ5.50 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 â 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 âprotective awardsâ (compensation for non-consultation). Such options would help. But they wonât 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 Gardinerâs 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 â as the dockers in Rotterdam have done â 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
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.
Politicians might also want to look in the mirror and ask themselves about their own responsibility for the P&O scandal.
By Professor Keith Ewing, professor of public law and Kings College, London and President of the Campaign For Trade Union Freedom
Conservative and Labour politicians at Westminster have been queuing up in Parliament and in front of mics to express their outrage at P&O Ferries for the âdismissal by zoomâ of 800 seafarers. Some seem genuinely bewildered about how such things can happen, and others have gone so far as to suggest the need for emergency legislation, though to do what is unclear.
But as well as point the finger at the employer, some of these politicians might also want to look in the mirror and ask themselves about their own responsibility for the companyâs announcement. This is yet another example of why labour law is important and the folly of those who trust business to do the âright thingâ. It is what happens when global companies are unconstrained by law, and free to treat their workers like commodities.
So what is the legal position?
First, based on an EU Directive employers are required by law to inform and consult employee representatives of impending redundancies, to help avoid or mitigate the redundancy, or to soften the blow when it happens. Initially under Labour the consultation was to begin in some instances 90 days before the dismissals, but has since been reduced by successive Conservative and Coalition governments to 45 days.
The legislation provides that in âspecial circumstancesâ, the employer may be excused from the obligation to inform and consult to the full extent required by the law. But this defence has been narrowly applied by the courts and may not be available to P&O, as the circumstances have been explained in the press. That being the case, the remedy for failing to consult is a financial one, by way of what is called a âprotective awardâ.
An application for a protective award may be made by a union to an employment tribunal on behalf of all the affected employees. The tribunal has the power to make an award to these employees for the âprotected periodâ, which may not exceed 90 days. The protective award is based on actual salary, and is to be assessed on a punitive basis, especially in cases where there has been a blatant failure to inform and consult.
Nevertheless, for a big company, this is presumably small change. If it is a profit making company (and that seems to be contested in the case of P&O, though apparently not the global group of which it is a part) the cost is likely also to be tax deductible, along with the fees of the lawyers and others on whose advice they are acting. In other words, the cost of non-compliance in these cases is a burden on the taxpayer.
Crucially, there is no power on the part of employment tribunals or any other judicial body to order the company to stop the dismissals until information and consultation obligations have been complied with. Nor â as there also should be â is there a power to hold directors personally to account with criminal penalties in the event of a companyâs failure to comply with the statutory duties to inform and consult employee representatives.
Secondly, and also based on obligations originally arising under EU law (capable since Brexit of being removed or diluted further on the whim of the government), employers have a duty to notify the government of impending redundancies, so that the government can take social measures to prepare for the consequences of mass dismissals in any particular locality, and set in train arrangements for people looking for new jobs.
As in the case of notice to employee representatives, the notice should be given when the employer is proposing to dismiss and should be given before the first dismissal notices are issued. At this stage it remains unclear what information has been supplied by the company to ministers. However, if the vessels to which the redundancies relate are registered overseas, there may be no duty to inform the British government at all.
But even if the duty to inform the government does apply and has not been complied with, ministers do not have the power to require the employer to desist until such time as the information and consultation procedures have been exhausted. Conversely, if the duty has been complied with, ministers have no power to veto the employerâs decision to dismiss and replace the workforce.
The penalty for failure to notify the government is a fine in the magistratesâ court. This may now be unlimited, but it it is for the Secretary of State or someone nominated by him to decide whether to prosecute. It will be recalled that the Information Commissioner imposed a ÂŁ20 million penalty on British Airways for a data breach in 2020. Workersâ jobs are surely worth at least as much as their data.
One point worth highlighting is that unlike the failure to consult employee representatives, the failure to notify the government raises the possibility of personal criminal liability for any âdirector, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacityâ. It remains unclear whether this applies in the P&O dispute, though the penalty is potentially formidable if it is the same as for companies.
But the fact that provision is made for the criminal law to be used in this way signals the importance of the obligation to give proper notice, even though it applies only where any failure of the company âis proved to have been committed with the consent or connivance of, or to be attributable to neglect on the part ofâ the officers in question. Much more significant for the future would be strict personal liability in egregious cases.
In the meantime, however, an employer who dismisses summarily may also have to pay wages in lieu of notice (up to maximum of 12 weeks depending on length of service); pay redundancy payments to those with sufficient length of service (two years or more); and perhaps also face unfair dismissal proceedings from the employees who have been dismissed without due process.
But given that in this case the company has said that it is prepared to settle on terms in excess of the statutory minimum requirements, these obligations are not likely to be a problem and the costs are presumably already âpriced inâ. For whatever the cost of getting rid of staff in this way, it needs also to be recalled that there is a significant prize for those who are able to get away with doing so.
Press reports suggest that in the P&O case the replacement crew will be supplied by overseas employment agencies.
One way or another, there is unlikely to be protection for these workers under the Agency Workers Regulations. More importantly, if they are overseas nationals who are not ordinarily resident in the United Kingdom, they may not be entitled to the national minimum wage (though employers may choose to comply voluntarily).
Welcome to Britannia Unchained. Welcome to the world of corporate social âresponsibilityâ. And welcome to the ugly consequences of globalisation, free markets, and dysfunctional labour laws.
K D Ewing
Institute of Employment Rights
26 March 2022
This is a corrected version of an article which first appeared in the Morning Star on 19th March 2022, amended as fresh information continues to be made available.
P&O Ferries, Business and Human Rights
By Professor Keith Ewing, professor of public law and Kings College, London and President of the Campaign For Trade Union Freedom
Today the House of Commons Select Committee on Business, Energy, Innovation and Skills begins an inquiry into the P&O Ferries scandal, jointly with the Select Committee on Transport.Â Â This should provide an opportunity for corporate executives to account publicly for their decisions and their alleged failure to comply with various legal standards, most notably the failure to inform and consult the trade unions of their decision to dismiss workers for reasons of redundancy.
But it will also provide an opportunity for the Committees to hear from both the government and the company about other matters, not least the implementation and application of the human rights principles by which companies are supposed to be bound.Â The P&O announcement raises big questions once again about the effectiveness of a wide variety of so-called soft law instruments as a means of ensuring that global corporations behave in a socially responsible way.
Pre-eminent amongst these instruments are the UN Guiding Principles on Business and Human Rights (UNGPs) approved in 2011 (the so-called Ruggie principles after their author).Â These seek to impose obligations on governments to protect against human rights abuses; on corporations to respect internationally recognised human rights; and on States to âensure as part of their duty to protect against business-related human rights abuseâ that those affected have access to an effective remedy.
The principles require national governments to develop an action plan to promote their implementation, which the British government proudly claims to be the first to have done.Â This can be found on the BEIS website, with the governmentâs implementation document claiming implausibly that âthe promotion of business, and the respect for human rights, go hand in handâ.Â Not only that:Â âThe âgolden threadâ of safeguards in society that are good for human rights â democratic freedoms, the rule of law, good governance, transparency, property rights and civil society â also provide fertile conditions for private sector led growthâ.
The question that then arises is what is meant by human rights for this purpose?Â To which human rights do these obligations apply?Â The position could not be clearer or more expansive.Â According to the UNGPs, they apply to the âinternational bill of rightsâ (meaning the UN Declaration of Human Rights, as well as the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), as well as the ILO Declaration on Fundamental Principles at Work. Â Â It is not necessary to go into these in great detail here; they are easily accessible on the web.
So what are the obligations on the part of the government to comply with principles which have now been endorsed by the G7 as part of the currency of globalisation?Â Â First they have a duty to âprevent, investigate, punish and redressâ human rights abuses.Â Secondly, they should set out âan expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operationsâ.Â Â And thirdly, they should enforce laws that are aimed at or have the effect of requiring business enterprises to respect human rightsâ.Â Special obligations arise specifically in relation to those businesses which are supported by the State or have contracts with the State.
One other obligation worth highlighting in light of press reports that the Department of Transport was notified by P&O in advance of the announcement, yet did nothing to stop it.Â This is the principle that states should ensure that government departments that shape business practices are made aware of and observe the Stateâs human rights obligations when fulfilling their mandates.Â This means the government should provide relevant information, training and support, raising questions about the training and support of the Department of Transport officials, whose responsibility when circulating details of P&Oâs decision was arguably to raise a red flag not flash a green light.
So far as the company itself is concerned, the Guiding Principles impose multiple human rights obligations.Â They must avoid causing adverse human rights impacts in their activities, and address such impacts when they occur.Â In order to do so, they must take a number of prescribed steps, the first of which is to have in place policies and processes, whereby they (i) commit to meet their responsibility to respect human rights, (ii) undertake due diligence to prevent and account for human rights impacts; and (iii) have processes to enable the remediation of any adverse human rights impacts they cause.
It is reported in the press that P&Oâs parent company is the Dubai based multinational DP World, which does in fact post a human rights statement, by which it ârespects and supports the human rightsâ of its employees, its extended supply chain and the broader community around it.Â Â According to the policy, the company is guided by the UN Declaration of Human Rights, the ILO Declaration on Fundamental Principles and Rights at Work, the UN Guiding Principles referred to above, as well as others.Â Â In relation to labour rights, the Statement specifically addresses freedom of association, to the extent that it refers to collective bargaining, the company committing to âthe laws and labour practices of each countryâ.
The latter presumably would include the right of recognized trade unions in Great Britain to be informed and consulted about collective redundancies, as required by TULRCA 1992, s 188.Â Â There is also a commitment to responsible procurement with ârigorous selection criteria for our suppliersâ who are expected âto respect basic human rightsâ. Â Â Â This may be relevant in the case of the wages paid to agency workers who may be recruited to work on the vessels.Â The ICESCR includes the right of everyone to just and favourable conditions of work, including remuneration which provides as a minimum fair wages and a decent living for workers and their families.
But apart from the duty to have a human rights policy, there is also a duty under the UNGPs to ensure that the policy is effective, though DP World has in any event made clear that it is guided by these principles.Â Â This means that it should be approved at the most senior level of the company, and stipulate the companyâs human rights expectations of its personnel, business partners and other parties directly linked to its products or services.Â Â Beyond that, GP Global is required to âcarry out human rights due diligenceâ to âidentify, prevent, mitigate, and account forâ how they address adverse human rights impacts, whether through their own activities directly or as a result of their business relationships.
The Guidelines refer to an expectation of there being a human rights process conducted by companies, which draws on external experts, and involves âmeaningful consultation with potentially affected groupsâ.Â Â In addition to a number of other obligations, businesses are required to cooperate in the remediation of any adverse human rights impacts, the guiding principles recognizing that âeven with the best policies and practices, a business enterprise may cause or contributeâ to an adverse impact âthat it has not foreseen or been able to preventâ.Â Â There are obviously a number of questions here which P&O Ferries and its parent company could be invited to address in light of the adverse publicity that their conduct has attracted.
But in the meantime, the UNGPs are not the whole of it.Â Large companies are also governed by the OECD Guidelines for Multinational Enterprises, which cover a wide range of issues.Â They include a labour chapter which covers much of the same ground as the ILO Declaration on Fundamental Principles and Rights at Work (obligations in respect of forced labour, child labour, discrimination, and freedom of association).Â The ILO Declaration is referred to in the Commentary to the text of the OECD Guidelines, though the nevertheless go further than the ILO Declaration.
First, so far as collective bargaining is concerned, the OECD Guidelines require employers to âprovide information to workersâ representatives which is needed for meaningful negotiations on conditions of employmentâ.Â Â The Guidelines also require the employer to âprovide information to workers and their representatives which enables them to obtain a true and fair view of the performance of the entity or, where appropriate, the enterprise as a wholeâ.Â Again, this is something which P&O and their parent company will want to address in order to allay concerns about the circumstances surrounding their dismissal and replacement of 800 employees.
More specifically, however, the OECD Guidelines address the question of mass dismissals for reasons of redundancy, providing that enterprises âshouldâ when
considering changes in their operations which would have major employment effects, in particular in the case of the closure of an entity involving collective lay-offs or dismissals, provide reasonable notice of such changes to representatives of the workers in their employment and their organisations, and, where appropriate, to the relevant governmental authorities, and co-operate with the worker representatives and appropriate governmental authorities so as to mitigate to the maximum extent practicable adverse effects.
It is also indicated that âit would be appropriate if management were able to give such notice prior to the final decision being takenâ.According to the commentary accompanying the guidelines this measure is drawn from obligations in the national laws of OECD member states (presumably including British law), while the guidelines themselves make clear that the obligation on companies is set within a framework of âapplicable international standardsâ.Â The consequence of that for redundancy dismissals is that it draws attention to ILO Convention 158 (the Termination of Employment Convention) which provides as a minimum fair wages and a decent living for workers and their families.
When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall:
(a) provide the workers’ representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;
(b) give, in accordance with national law and practice, the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimise the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment.
There is thus no shortage of international standards which make clear that companies are required to inform and consult, in addition to any obligation arising under domestic law.Â Â The point is reinforced still further by the ILO Declaration on Multinational Enterprises to which the OECD Guidelines also refer, the former making clear that
In considering changes in operations (including those resulting from mergers, takeovers or transfers of production) which would have major employment effects, multinational enterprises should provide reasonable notice of such changes to the appropriate government authorities and representatives of the workers in their employment and their organizations so that the implications may be examined jointly in order to mitigate adverse effects to the greatest possible extent. This is particularly important in the case of the closure of an entity involving collective lay-offs or dismissals.
Notably the ILO Tripartite Declaration also provides that âwages, benefits and conditions of work offered by multinational enterprises across their operations should be not less favourable to the workers than those offered by comparable employers in the host countryâ.
The UN Guiding Principles on Business and Human Rights, the OECD Guidelines on Multinational Enterprises, and the ILO Tripartite Declaration on Multinational Enterprises thus include provisions highly relevant to both the mass dismissal of employees and their replacement by agency workers under a service contract.Â Â Â The obvious question of course is what human rights are in the frame here, to which the answer might focus on those relating to collective bargaining associated rights (in relation to those dismissed), and minimum wage obligations (in relation to the replacement workers).Â This is in addition to the express obligations in the OECD Guidelines and the ILO Tripartite Declaration (specifically requiring redundancy consultation).
There are thus a number of questions for the government, the companies involved, and the trade unions.Â Â For the government,
- Has it done enough to âprevent, investigate, punish and redressâ human rights abuses as required by the UNGPs?
- Has it made clear to business enterprises their expectation that businesses should comply with human rights obligations, and if so how has this been done?
- Has it done enough to âenforce laws that are aimed at or have the effect of requiring business enterprises to respect human rightsâ?
- What information, training and support has been given within government departments to raise awareness of the governmentâs human rights obligations in this field?
- What procedures are in place to enable officials to raise concerns about adverse human rights impacts of businesses, and what is the process for raising these concerns?
It is thus not to be overlooked that the primary responsibility for ensuring human rights obligations are complied with lies with the government.Â But there are questions also for the companies in this case,
- Are they satisfied that the P&O Ferries decision is compatible with DP Worldâs Human Rights Statement? If so, why?
- What steps were taken by the companies to test the proposal to dismiss with the companyâs human rights obligations, before the decision was made? Can this be substantiated by evidence?
- What steps were taken by the companies to ensure that the requirement of staff to leave their vessels was compatible with the human rights of the individuals in question?
- What diligence was undertaken by the companies in relation to the suppliers of agency labour to assess whether wage levels were compatible with human rights requirements?
- Was the failure to consult trade unions before the decisions were announced compatible with the OECD Guidelines and the ILO Tripartite Declaration?
There are different questions of course for the trade unions, which are more basic:Â how can these obligations be enforced?Â Â There is unlikely to be a human rights remedy, unless some of the foregoing can be shoe-horned into the Human Rights Act 1998, as violating Convention rights.Â Here it is not the obvious labour law issue that may be the most fruitful line of attack, but a collateral issue that no one has expected, perhaps around the European Convention on Human Rights, article 8 for claims from workers about the manner of their removal from ships.Â There is also a limited opportunity to bring complaints in extra-legal forums, though the OECD Guidelines do provide an opportunity for complaints to be made to a National Contact Point, a procedure which has been helpful in the past.
Ultimately, however, this is a political matter, and it is in the political arena that the battle will have to be fought.Â The question for trade unions is how effectively they can weaponise the instruments considered above to pressurise the government and the company, though the opportunities will pass very soon.Â In terms of active, persistent and global campaigning against corporations that are believed to undermine human rights obligations owed to workers, trade unions and others, British trade unions have much to learn from their counterparts in the United States and Canada, which are tied up in legal knots just as tightly as are British trade unions, but which have adapted to operate outside traditional labour law boundaries.
If not now, then when is it time for new strategic thinking and a new strategic response on the part of the British labour movement?
K. D. EwingÂ 23rd March 2022
CTUF Backs RMT & Nautilus International In P&O (DP World) Dispute
â¨The CampaignÂ for Trade Union Freedom backs RMT and Nautilus International in their dispute with P&O (DP World)
Members and supporters of the Campaign for Trade Union Freedom will have seen the news that P&O has disgracefully sacked hundreds of UK seafarers with no notice or consultation.
The mass sackings of workers have received widespread condemnation from The TUC, UK and international unions, the Labour Party, the legal profession and some employers.
There has been massive coverage in the media yesterday and today of the events and reports that âhandcuff compliantâ security guards, aka as thugs, have been engagedÂ to clear the vessels of officers and ratings who are occupying the ships in response to the sackings.
Tory ministers have appeared on the media saying that they are âappalledâ and the sackings are âunacceptableâ â however, they are also saying that the decision is a âcommercial decisionâ.
P&O say they are facing financial difficulties yet the Dubai-based DP World, paid shareholders a ÂŁ240 million dividend at the end of 2020 and P&O reported an 11% jump in revenue last year.
The 2022 European Golf Tour was renamed the DP World tourâ with the company contributing ÂŁ147 million to the prize money.
Whatâs more P&O furloughed more than 1,400 employees during the pandemic to the tune of ÂŁ10million.
So, after UK taxpayers subsidised the business to keep it alive, P&O has now axed the jobs of 800 people in the face of the deepest cost-of-living crisis in generations.ĂÂ The actions o DP World and P&O are pure greed.
The protest is at 4pm today (Friday) atĂÂ DP World, 16 Palace Street, London, SW1E 5JQ
If you are able, please attend this demonstration. Nearest tube/bus/train â Victoria.
RMT, the union for ratings, is staging anÂ emergency demonstration against the sackingsÂ at the office of P&O parent company DP World in Westminster this afternoon.
The protest is at 4pm today (Friday) at DP World, 16 Palace Street, London, SW1E 5JQ
If you are able, please attend this demonstration. Nearest tube/bus/train â Victoria.