Reviewed by: Graham Clayton
Author: John Bowers, Michael Duggan, and David Reade
Publisher: Oxford University Press
Recently I met a friend and former colleague. Pleased to see him, I greeted him with the usual enquiry about the state of his wellbeing. 'Well,' he answered, 'I guess I’ve just been through the most stressful period of my life.'
I knew immediately what he meant. He’s the man who has the responsibility within the country’s largest teachers’ union for managing the paperwork for industrial action ballots. Despite a few threats, he’d just got through a national day of action without any legal proceedings against the union. I’d been with him in similar situations in the past.
The union concerned had been involved in a trade dispute with a secretary of state but appeared to be obliged to give statutory notices to every employer of every union member involved in a ballot. Added to this were the complications that teachers are directed in their work by school governing bodies who are not actually their employers but are to be treated as if they were, and the not inconsiderable difficulty of ensuring that the only union members balloted by the union were those who would actually be involved in a one day strike action.
The complexity of my friend’s task was frankly horrendous and he’d been living by the hour with the possibility that one slip could end up with a very, very embarrassing injunction that would wreck the whole expensive effort. I knew there had been some threats and some posturing - though most of it might well have ended with the realisation that a crucial letter was still sitting unopened on someone’s desk.
Whatever the reasons, these incidents had done nothing to alleviate my friend’s high-tension working days.
That’s why I have so much praise for the prosaically but informatively titled The Law of Industrial Action and Trade Union Recognition, a rewritten second edition of the 1987 classic The Modern Law of Strikes. For me, well, this is my kind of book.
The behaviour of trade unions and the industrial action in which they become involved is political hot news. Unions and their actions provoke strong opinion about which people chatter, argue and fall out - rather more so than anything employers may have done that set a dispute off in the first place. The regulation by law of relations between employers and employees, or ‘workers’ as they are emotively still known, is an immense challenge to lawyers who like to think of their discipline as pure and untouched by political division and conflict.
Unions who fall victim to the demands of this regulation have no reluctance to claim political and judicial bias, nor is there any lack of critics demanding harsher regulation against what they see as the socially unacceptable disruptive practice of trade unions.
What is so refreshing about the work of John Bowers QC, Michael Duggan and David Reade QC is that they tackle their subject in the context of real experience without hesitation or uncertainty. They impliedly acknowledge that what they are writing about is controversial. They assert from the outset the accepted value of the freedom of employees to combine and to act in combination. In doing so they confront bigoted opinion, but they do not take sides.
They simply assert authority in both the legal and the conversational senses of the word. They introduce their work with the question 'what do the parties want from the law?', showing their commitment at the outset to discuss their subject in the context of real situations.
They also identify the lawyer as 'an essential member of the industrial relations team' in today’s industrial relations environment, and their work directs itself confidently to those team members. And what they write is expert, specialist, well-illustrated law firmly attached to political objectives and practical purpose.
With the benefit of the contribution of three chapters from Littleton Chambers barristers, Katherine Apps and James Wynne, the books runs to 299 pages across the whole spectrum of law governing industrial action concluding with some very helpful reflection on the impact of human rights and European Union law. It does not, however, tell the reader all there is to know.
The authors expect their readers to find their detailed law at source in reported judgments. That may not suit everyone, but for the reader who is prepared to use the work alongside the casebooks, the result is a highly readable flow of themes, ideas and analysis which has the happy effect of leaving readers with understanding as well as knowledge.
I have one minor grumble. Section 244(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 makes special provision for disputes between ‘workers’ and a Minister of the Crown. Half a million teachers are directly affected by this very curious and obscure provision almost every time they are involved in disputes beyond the confines of their own schools.
Millions more workers in the public sector are affected by it at some time. However it has never been judicially explained and no author, including messrs Bowers, Duggan and Reade, seems to want to tackle it. That’s very disappointing. I know a lot of people, including my stressed-out colleague who would be greatly comforted by some such authoritative reflections – a gentle hint for the third edition perhaps.
I cannot close with a complaint, however small. This is a work of authority and clarity. I recommend it highly to any lawyer who may find himself or herself on an industrial relations team when the parties to a trade dispute have turned aggressive and may they then have the satisfaction of relieving some of the stresses upon their team colleagues.
Graham Clayton is an education law consultant and formerly senior solicitor at the National Union of Teachers