Dave Penman: Why trade unions have launched a judicial review on civil service pay

The lack of consultation over civil service pay has meant that trade unions have had to turn to the law to get the government to the table. It shouldn’t be this way, says the head of the FDA

Royal Courts of Justice Photo: PA

By Dave Penman

20 Sep 2018

The Royal Courts of Justice are an austere environment to celebrate a “first”. At the ripe old age of 51, it’s my first time in the inside of a court as a protagonist.

A big chunk of our membership are lawyers and so the sight of a bewigged and gowned QC with mountains of paper tumbling from lever-arched files may be commonplace. For me, having grown up on Rumpole of the Bailey (go on millennials, Google it) it was all a bit intimidating, which I’m guessing is partly the idea


As we entered court 18 I found myself bowing, Theresa May style, and almost tugging my (sadly imaginary) forelock. I tripped and stumbled my way up a pew and was grateful that the all-powerful judge was not already sitting or I would no doubt have been the subject of a legal joke or two by their learned friends.

It’s easy to forget at times that legal cases are not about the law, they’re about people and usually not at the best of times. We were the third case to be heard that day and so we sat through legal arguments on a couple before us. I couldn’t quite understand what one of the cases was about and by the remarks from the judge I don’t think she could either. Another case was, I think, a challenge to deportation and my heart sank as I tried to piece together the back story from the arcane legal arguments.

Despite it all looking a bit like a Not the Nine O’clock News sketch, the judge was impressive. All those lever-arched files had been read and she was on top of her brief. I would not have wanted to appear before her unprepared. Luckily we weren’t.

We were there to seek expedition on our judicial review application, challenging the government over its lack of consultation on this year’s civil service pay guidance. Our contention is that the consultation was a shambles and should be started afresh. This obviously has implications for civil service employers, many of whom are forging ahead with undue haste to implement the new 1.5% pay cap.

This is not simply a technical point we’re making. It’s evident that in almost every other part of the public sector, there is far more meaningful engagement with the unions on workforce issues, including pay. It’s no coincidence therefore that across the public sector, the unlocking of the pay cap has had real meaning, with the civil service sitting squarely at the bottom of the pay league. Meaningful consultation and better outcomes are linked, so we want the government to start the process again.

We want to talk detail as well as numbers. Few employers have shown an appetite for using the flexibilities that are sketchily outlined in the pay guidance and would help unlock higher pay rises. Understanding how this could work – and having an opportunity to engage with employers to convince them to explore these options – should hardly be a pie in the sky ask for unions in a sector of more than 400,000 employees, yet that’s what it feels like.

In their initial response to the judicial review, the government essentially said that it doesn’t matter if the consultation was a shambles, if promised meetings fell through and the final guidance was issued with only hours notice. That it doesn’t matter because it was never a consultation anyway. That it wasn’t prepared to listen to our arguments or consider changing any aspect of it, and we can’t challenge a consultation that never existed. Nice. Six weeks after we wrote to the chief secretary to the Treasury asking for a meeting on the guidance, she finally responded on 30 August saying (I paraphrase) “I know it’s taken ages but, you know, recess, and I wasn’t going to meet you anyway cause of the whole court thing”. Double nice.

“In almost every other part of the public sector, there is far more meaningful engagement with the unions on workforce issues, including pay”

Courts shouldn’t have to deal with this stuff. It shouldn’t get to a point where this is what we have to resort to, simply to get meaningful dialogue over an issue as significant as pay for the civil service, but yet here we are. Like every bit of the civil service, the courts have had massive cuts in resources. Our expedited case – yes the judge granted it – can’t be heard till 4 October and that was only because the judge pulled out all the stops, recognising the complexities if successful.

So we’re left taking up the valuable time of a court, rather than talking like adults. This is what any sensible employer would be doing, but it’s not an option here. So while employers impose the new pay cap, we prepare for our literal day in court, and someone further down the ladder has to wait longer for their case to be heard. Well played government.

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