Over a year ago, as the government waxed lyrical about ‘herd immunity’ and procrastinated over imposing a lockdown, I was contacted by bus drivers who were fearful for their lives and those of their families.
As the pandemic progressed, I heard stories from those who had lost colleagues to this deadly virus but, as key workers, felt a moral duty to keep driving. They transported the essential to where they were needed, and did it with minimal health and safety protection and a constant exposure to risk. Indeed, the Office for National Statistics recently described bus drivers as one of the occupational groups with raised rates of Covid-19 deaths.
Now, imagine being one of those drivers – after the fear and sacrifice of the last twelve months, you receive a knock at your front door and a man hands you an envelope. Some of your neighbours are watching on from their windows: ‘Wonder if it’s bailiffs? Debt collectors? Plain clothes police officers?’
The sheer embarrassment swirls around and in that moment you want the floor to open and swallow you up. Tentatively, you open the letter and inside is a scenario probably worse than all three: your employer is writing to inform you that they are tearing up your terms and conditions at work – and, if you don’t accept it, you’re fired.
Over a Barrel
Most people would think that this behaviour is morally reprehensible. They would believe that stories like this belong in the pages of a Dickensian novel, but sadly they are all too contemporary. This is working in modern Britain – and it happened to bus drivers at Go North West in Greater Manchester.
Of course, it is true to say that many businesses are facing difficult times, and we face one of the worst recessions we have seen in our lifetimes – but sadly, some employers are unscrupulously using the pandemic as an excuse to drive down terms and conditions through the use of ‘fire and rehire’ practices.
According to research by the TUC, one in 10 workers have been told to reapply for their jobs on worse terms since the first lockdown. As John Hendy and Keith Ewing from the Institute of Employment Rights wrote starkly last year, ‘workers have become commodified; and in a health pandemic they have become vulnerable and disposable commodities.’
In the case of Go North West, the dispute surrounds proposals by the company to reduce costs. Go North West says that the business is losing £1.8 million a year, a deficit they attribute to outdated and inefficient working practices. Without tearing up terms and conditions, they say, the business, and its operation of services from Queens Road, would be unviable.
Unite the Union disagrees. It points out that the ‘fire and rehire’ project, called ‘RESET 2020’, involves a 10 percent cut in the number of bus drivers, workers being forced to work longer hours for no additional pay (resulting in drivers being £2,500 a year worse off), and the tearing up of the existing sick pay policy.
Before they pushed ahead with their plans, Unite had been attempting to negotiate with the company about the savings required. They even presented a range of financial proposals and offered comprises such as a revised sick pay scheme and extending unpaid time during meal breaks for a period of two years. They also offered to pay for an independent evaluation of the employer’s projections.
But as has sadly been the case throughout this pandemic, the company pushed ahead with the plan to fire and rehire anyway. Go North West abandoned those talks and pursued RESET 2020 with the offer of a one-off payment of £5,000 per driver.
This was, in effect, a bung offered to desperate workers in fear for their jobs and under financial pressure. Attempts like it—to bribe workers into accepting a lump-sum today, amidst the pandemic, for worse conditions in the long term—are shockingly commonplace.
It was little wonder, in such a period of economic uncertainty and rising unemployment, that the majority of the workforce felt they had no option but to accept the worse terms and conditions. Losing their jobs would have meant almost certain financial hardship for their families.
The company might well refer to this practice as drivers ‘volunteering for change’ – but ‘duress’ is the term I think most people would use. Understandably, the workforce then voted strongly in favour of industrial action which began on 28 February, and remains ongoing.
Meanwhile, the website of the Go-Ahead Group, Go North West’s parent company, has hailed its ‘resilient performance against a challenging backdrop’ in the latest financial results. This is typical of many unscrupulous companies during the pandemic – putting on the ‘poor mouth’ in their public relations to justify attacking workers, but expressing confidence to the moneyed classes.
Indeed, Unite the Union points out that Go-Ahead Group’s most recent accounts reveal it earned £1 billion from its bus division, with an operating profit of £121 million. The company then paid dividends to shareholders worth £102.80 per share – quite a distance from the desperation it presents to its workforce.
Understandably, drivers are somewhat perplexed. They have been asked to dramatically reduce their own terms and conditions for the sake of the company’s financial health, yet shareholders are being rewarded for its profitability.
There is no driver I have met who would not make compromises if they felt the company was in peril. Indeed, they have already offered to make them – but have described feeling as though they were met with an ‘all or nothing’ approach from the company. ACAS talks are now underway as workers stand on picket lines. We can only hope that this position changes soon.
The legal position surrounding all of this is very sad indeed. Fire and rehire should not be legal, but it is, and the Tory government has done nothing to prevent it. In reality, the law offers very little protection against this new virus sweeping across our workplaces.
Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 offers minimal protection, only consultation, and only in trade union-represented workplaces. It requires employers to consult in situations where it is proposing to dismiss and re-engage employees in order to rehire them on worse terms and conditions. Where 100 or more employees are involved, the consultation period has to be at least 90 days.
Under this legislation an employer need only show that a reorganisation gives a discernible advantage. They are not required to explain what other avenues were explored before starting the process of consultation on dismissal and reengagement, and don’t have to prove that the change to employees’ terms was necessary for the survival of the organisation. It is a consultation in the flimsiest sense – where bosses effectively notify you of what they intend to do.
More broadly, with or without the application of section 188, if an employee refuses to accept a new contract they can simply be fired. It is then up to them to bring a claim for unfair dismissal – but the law concerning unfair dismissal allows employers to justify dismissals under extremely broad terms. Again, there is no tangible burden of proof on the employer. Worse still, insecure workers are at the most risk – an employee must have two years of continuous employment to be able to make a claim to the tribunal at all.
How to Outlaw Fire and Rehire
Tackling these legal deficiencies would be incredibly simple. So simple, in fact, that the constant refusal by the government to address the issue suggests that they hold a deep ideological belief that the workforce should be flexible, insecure, and expendable – and that fire and rehire is a legitimate tool to this end.
All the government would need to do is amend the Employment Rights Act to provide that it would be unfair to dismiss someone in order to achieve a reduction in their pay, benefits, or conditions of employment. Alongside this, it could amend it to make it ‘unfair’ to dismiss an employee for economic or organisational reasons that are not necessary to secure the survival of the business – with a defined a burden of proof that an employer must provide.
Several countries across the world, including Spain and Ireland, have already taken action on fire and rehire. We urgently need to see our government take a similar approach.
In the meantime, the workers at Go North West stand on the picket every day. The constant beeps of support from passing traffic cheers them up, and the donations to their strike fund from local nurses and key workers gives them a morale boost. But what they really need is their employer to come forward with the level of gratitude that these workers are owed.
They kept our country going at a time of crisis, risking their own lives to ensure that others could get to work protecting ours. Do we really want to be the kind of country which throws people like that to the wolves as soon as the crisis begins to subside?