Day Twenty of Closing Speech for the defence

Monday, 18th Nov 96 - Day 302 of the Trial


Before Mr Morris began the week by continuing with the Employment issue, Ms Steel raised a couple of legal points. The first was the question of whether McDonald's were still pursuing their claim that the defendants were the authors or editors of the alledged libelous factsheet, or whether they were simply claiming the defendants had distributed it.

The other refered to a reference by the Plaintiffs to the effect that they were entitled to use parts of the notes of the hired McDonald's spies (who infiltrated London Greenpeace) other than those already raised either in examination-in-chief or in cross-examination, to assist them in their closing speech. She asked if they were intending on using previously unused material, that they those bits be disclosed in advance so that the defendants could address them in their own closing speeches.

Hanging on to the legal advangtage of being last to present his closing speech, Mr Rampton answered, "My Lord, I cannot respond to that last one yet in detail and would not propose to do so in any event, unless your Lordship order me to, because I don't believe it is right that I should dish out in advance parts of my closing speech. However the first two questions, can I answer."

He continued, "So far as Ms. Steel is concerned, I think I made it clear at some stage possibly during her cross-examination that we would accept that she did not have a hand in the production of the original leaflet because the chronology does not work, so far as Mr. Morris is concerned, the position is entirely different, because of course he did not give evidence which means that his Haringey affidavit remains an admission to the effect that he did."

Mr Morris angryly countered, "If that is true I am going to sue Lord Justice Neill too, for saying I took part in the writing of the fact sheet as he did in his ruling."

[Explanatory note: The 'Haringey Affidavit' was written by a solicitor on behalf of Mr Morris in order to excuse him from the requirement to attend another unrelated trial on the grounds that all his time was being taken up with the proceedings bought by McDonald's. Mr Morris signed the affidavit but failed to notice that the solicitor had written that he and Ms Steel were being sued over a leaflet they had written, instead of, a leaflet they are alledged to have distributed. This is a common mistake made frequently by the media when reporting the case, and a mistake that Lord Justice Neill (one of the country's most senior judges) had also made, in passing, in his ruling for the defence at a successful pre-trial Court Of Appeal hearing. 3 weeks after signing the affidavit Morris ordered his solicitor to amend it. However, McDonald's somehow obtained the signed 'Haringey' affidavit and have tried to use it to claim that Mr Morris has 'admitted' to being the author of the factsheet. Both defendants swore affidavits countering the 'Haringey' one and McDonald's use of it.Mr Morris now says that if it is to be held against him, then he shall sue Lord Justice Neill.]

Mr Rampton answered Ms Steel's final question, " is quite possible that I shall want to refer on parts of the agents' notes, which I cannot at the moment say which they would be, which were not specifically referred to either in evidence-in-chief or in cross-examination." He went on to explain that since the defendants had refered to the notes extensively in cross examination of the infiltrators, he was now legally entitled to use the entire notes, even those bits not previous used in evidence.

Justice Bell requested that Mr Rampton to provide him with the specific sections he intended to use as soon as possible. Mr Rampton mumbled a response, "Yes, my Lord. I mean, that I will, I do understand and so far as I am able, I will do it as quickly as I possibly can."

Mr Rampton proceeded to inform the court that vast majority of his closing speech would be in typewritten form. He added that it would be very long, about five hundred pages, and that he would be in a position to hand in nearly three quarters of it by the end of the week. "Your Lordship will certainly get the first six factual topics which are nutrition, food poisoning, advertising, recycling of waste, rainforests". Temporarily losing his ability to count he continued, "is that six or five? Anyway, the only one which might tail a little bit after is employment partly because it is a big subject and partly because of the actual practical business involved of typing. I have not yet made a decision whether I am going to, with your Lordship's leave, actually do the remaining four topics (malice, publication, counterclaim and damages) in writing at all, partly because of pressure of time, but partly also for what I might call diplomatic reasons. But I hope if I decide not to do those in writing, your Lordship will forgive me, they are never going to be very long topics, anyway, any of them."

Justice Bell and the defendants looked far from impressed, perhaps because five weeks earlier when the defendants had been requesting more time, Mr Rampton had claimed to have finished his closing speeches, and the judge ruled that the defendants should've been ready by then. Now it appears that infact Mr Rampton has yet to do any of the sections not yet covered by the defendants' speeches and that perhaps he is using his advantage by waiting to hear what they have to say before he begins.

Mr Rampton added insult to injury by continuing ,"it may mean that it may not matter too much if the Defendants over run their closing speeches by a couple of days."

Ms Steel came back on what Mr. Rampton said about notes from the infiltrators. "I don't really think it becomes him to try and say it is our own fault for cross-examining the witnesses about other parts of the notes. After all, he selectively chose the points that suited him and if we had not cross-examined the spies on other parts, then all the contradictions and flaws in the evidence would not have been exposed. So it was hardly likely that we were just going to stick to what he had asked questions about. The second thing is that as a consequence of that, when we asked about whether the whole notes went in, and we were told that they did not go in, Mr. Rampton could have got up as an experienced advocate and said, well, if you cross-examine on this other part which I have not asked questions about, it will then go in as evidence. And I think that that would have been a dignified approach to take."

Ms Steel continued by repeating her request that Mr Rampton should provide the defendants with references specifying which parts of the agents notes he would be using. This she did with quite amazing restraint considering it was obvious that both defandents and possibly the judge were all aware that Mr Rampton appeared to have been cheating and telling untruths. Justice Bell said that he had requested that it be done and they would have to wait and see whether it happens. Ms Steel added that if they were not notified in advance then they should be given the right to come back on any submission made on the previously undisclosed material.


OPPOSING UNIONS - Mr Morris finally got to continue on the subject of employment. He referred to the defamatory meaning as claimed by the Plaintiffs, that 'McDonald's have adopted a policy of preventing unionisation by getting rid of pro-union workers', and thereby preventing unionisation. He pointed out the Crew Handbook policy of preventing any kind of collective activity or independent communication amongst workers making unionisation impossible.

Mr Nicholson had defined talking to a union about conditions in the stores as being 'gross misconduct leading to a summary sackable offence.'

Mr Morris said:

"So, if you are going to prevent unionisation, then you would do exactly what McDonald's has specified in their Crew Handbook. I can't see any other method of preventing unionisation that would be more effective and more successful as telling every single worker that they cannot do anything which would even remotely resemble any kind of union activity and you tell them that on the first day in their official handbook. Just in case they get the slightest idea on the subject. Of course, if people do carry out any of those things, they get disciplined and eventually sacked. Or indeed got rid of by some other method because their face does not fit."

LOW PAY - Mr Morris commented on McDonald's claimed next defamatory meaning, 'taking advantage of the absence of a minimum wage in Britain it pay what they like, helping thereby to depress wages in the catering trade'. He said that the court had heard how McDonald's starting wage had increased when forced to by a legally imposed minimum wage during the 1980s, then it had virtually frozen, since the wage councils were abolished in 1993. That he claimed was exactly the point being made in the fact sheet. He continued by reminding the court that they had heard how the catering trade confidentially share wage information and how, for example, Pizza Hut deliberately positioned themselves in the top 20% of industry wage levels. McDonald's wage levels were shown to be in the bottom 20% of the already low paid catering industry. Therefore, Mr Morris said, "What one company does it will affect how the others set their own wage levels."

Mr Morris continued with McDonald's claimed meanings, '..are only interested in recruiting cheap labour and to this end, exploit disadvantaged groups, women and black people especially.' He said that while McDonald's claim that they are providing jobs for school leavers and take them on regardless of sex or race, what they really mean is they are looking for cheap labour - rather than they are doing anybody a favour. He concluded ,"They try and give the impression that they just have some kind of boundless benevolent regard for the needs of school leavers, women and black people - when in fact what they are doing is taking advantage of those people who have got few or fewer job options."

Mr Morris moved on to the evidence of Mr. Beavers, McDonald's US Senior Vice President and on the Board of Directors, and the first Plaintiff's lead witness. He had admitted that McDonald's US workers started at the legal minimum wage of $3.35 per hour (now raised to $3.80). He had also agreed the company would not be allowed to pay less and that the vast majority of current workers were getting less than $4.35 per hour. He had added, "I do not consider it, three to four dollars, to be low pay, it is a fair wage for the work that is expected.". He had refused to reveal his own salary.

Mr Beavers had said that there were no hours guaranteed at McDonald's and that 80% of the jobs were part time. He had explained how the company would establish the labour percentage for each store, and the crew wages bill target as a percentage of the store sales, which he said was between about 15 and 19 percent in the USA.

Mr Beavers had also recognised that in the US it would be illegal not to pay overtime for over 40 hours per week worked and that it was a fair law. He had also accepted McDonald's only paid overtime because they were forced to, which Mr Morris said was quite a revealing admission. He said, "So even though it was fair, they were only doing it because otherwise it would be illegal."

Justice Bell latter commented:

"It appears that the only logical reason for having a policy not to work over 39 hours, is that it started with having to pay overtime if one worked more than that, or 40 hours in the United States. And the company did not want to do that, because it would cost them more money - although no one in the witness box was prepared to rationalise it."

UNIONS - Returning to the issue of unions, Mr Morris explained how Mr Beavers had agreed that in the early 70s, McDonald's had employed an official, John Cooke, with the responsibility 'to keep the unions out'. Mr Morris quoted John Cooke from the book 'Behind the Arches' in which he was said to have stated, "unions are inimical to what we stand for and how we operate. They pedal the line to their members that the boss will be forevermore against their interests." Mr Morris said that was true - companies and workers did have conflicting interests.

Mr Beavers had said he was aware of the fact that "John Cooke organised a flying squad of experienced store managers who were despatched to a restaurant the same day that word came in of an attempt by trade unionists to organise it." The book 'Behind the Arches' had also stated that 'of the 400 serious attempts [at unionisation] in the early '70s, none were usccessful' and Mr Beavers agreed that their failure was due to steps taken by McDonald's to prevent trade union organisation at a time when it was a problem for the company. Mr Morris concluded that the pattern was set for McDonald's global strategy against rights for their workers.

The defendants had questioned Mr Beavers about the use of lie detectors on staff and he admitted that during the '70s, himself and company managers around the country had used lie detectors on current or potential employees. He had also said that the practice had only ceased when it was obvious that the law was going to be passed making it illegal. He also had admitted that in some cases, refusal to take such a test would have led to dismissal.

Mr Morris concluded,

"..the McDonald's system that exists worldwide is a very unified system. The existence of the operations manual, which is in every store in the world, only confirms that. But also McDonald's highly standardised approach to their business was largely developed in the States, and therefore what happened, say up to the mid '70s or even late '70s, set a pattern for the whole world in terms of advertising; in terms of employment practices; the lack of quality of the food; everything else really. And it is our general submission that we are talking about a systemic approach by McDonald's. We are not talking about you know the odd store here doing something that no other store would do, some particular quirky way of doing a schedule or whatever. We are talking about standard practices, that obviously exist in all stores."

LOW PAY - Mr Morris spoke of Mr Beavers' admission about the $250,000 donation by Ray Krokc (McDonald's founder) to the controversial 1970's Presidential campaign of Richard Nixon which the defendants claim was part of a pattern of trying to influence politicians to establish a sub minimum wage around that time - so that McDonald's might be able to pay less to their workers who were already low paid. The donation came around the very time that McDonald's franchises were lobbying to prevent an increase in the minimum wage and to get the legislation (which had been dubbed 'The McDonald's Bill'), passed to be able to pay the sub minimum wage to some young workers.

Mr Beavers had agreed that McDonald's "depends for their profits on the labour of young people" which was a direct quote from the fact sheet. He also admitted that they positively recruit youth - the majority being under 21, and a very large percentage of US workers being from ethnic minorities.

Pennsylvania authorities cited 466 vilolations of child labour laws at eight McDonald's stores run by a franchisee, but the owner manager had not been sacked. The defendants accused the corporation of double standards, especially when comparing this with crew members who faced summary dismissal for single, trivial and often unjust 'offences' against company rules.

There was then a long and complicated exchange about illegalities regarding pay in the UK and the conclusion that McDonald's had for many years, until changes in the law, been underpaying workers by quite considerable amounts owed to them for overtime. Tens of thousands of people who had worked at McDonald's may yet be able to claim back pay. He drew the court's attention to the company 'Clock Card Files' computer print outs from the Bath and Doncaster stores which showed that EVERY DAY a majority of workers at those stores had, over a period, been failing to get their break entitlement as set out in law and/or in McDonald's employment contract - the Crew Handbook. There was also discussion about the reasons for the two week interval between payments to hourly paid workers. It was pointed out that such a practise had the effect of averaging out the hours worked in that fortnight making it difficult to effectively monitor weekly hours, and hence hide breaches of policy and illegalities - laws and regulations are based on weekly calculations.

HEALTH AND SAFETY AT WORK - Mr Morris then talked about the death of Mark Hopkins, a floor manager at a store in Manchester, UK, who was killed by an electric shock from a piece of faulty equipment in October 1992. Shortly before his death a McDonald's memo went to all stores in the northwest region, saying, "there have been several recent incidents in our restaurants where members of staff have received severe shocks from faulty items of electrical equipment." Mr Morris pointed out that it seems that faulty equipment was not only a general problem, but also that it was known to be a general problem, in that region at least. Mr Morris claimed that the evidence had clearly shown the McDonald's was responsible for Mark Hopkins death. Manchester Council's Environmental Health Dept had issued a prohibition notice on the store for failing to have a 'Residual Current Device' in a kitchen area, an offence. McDonald's then hurriedly installed such devices nationally. Mr Morris reminded the court that the company's own confidential investigation (which had not been given to the coroner or the inquest jury) had catalogued a number of company failures and problems and had made the damming conclusion that "safety is not seen as being important at store level. Their Safety Officer had accepted the findings when in the witness box."

Mr Morris continued by referring to a confidential Health and Safety Executive report from 1992 which had made 23 recommendations for improvements. One of its conclusions was that 'the application of McDonald's 'hustle' policy in many restaurants was in effect putting the service of the customer before the safety of employees'. Mr Beavers had accepted that 'hustle' emanated from the McDonald's USA and was in effect at McDonald's worldwide.

Mr Morris added,

"..the thing about 'hustle' as opposed to other aspects of safety, is that first of all it is worldwide as a culture - secondly, it is something that could affect every operation that is being done in a restaurant. It is a fundamental unsafe policy and do not forget we are talking about a positive policy to use hustle, not just the lack of education or something of staff in safety techniques. We are talking about a positive incitement to be unsafe."

Mr Morris reminded the court about the time Ms Steel had referred to the crew training program that contained a set of questions. One of them had asked, 'when do you use hustle?' and the answer that all crew members were supposed to reply was, 'All the time'. Mr Morris said that considering the electrical equipment and the hot surfaces, it was an extremely irresponsible policy.

THE EXPERT VIEW - Mr Morris then proceeded to the evidence of Mr Pearson on the subject of legal protection for dismisal. Mr Pearson, a former member of the Wages Council, an ex-TGWU Union official and currently a researcher on employment conditions, had said that the main concentrations of low paid workers are in the service industries: shops, hotel and catering. He said, "The law does not permit anyone with, less than two years' continuous service to claim for unfair dismissal. Unless it is for racial or sexual discrimination and in theory for trade union discrimination" Up till recently, the 80% of McDonald's staff who were part timers would have had to work for 5 years to invoke their legal rights. Mr Pearson was later to explain that it was extremely difficult to prosecute for unfair dismissal on the grounds of trade union discrimination. Mr Morris claimed that because of the very high turnover at McDonald's, very few staff were there long enough to qualify for legal protection.

Mr. Pearson had made expert visits to 2 McDonald's London stores on behalf of the defence. He had visited one one in Hackney and one in Islington. He had said that the visits were of limited value due to the constraints imposed by McDonald's. He had been accompanied by a solicitor on behalf of McDonald's and an area supervisor and not granted permission to discuss with crew any of the issues in contention. He was also apparently refused access to time schedules and clock cards, which the defence claimed would have shown further breaches of policy and law as had been found in other stores. He had told the court that he had only been allowed to observe the kitchen area for 2-3 minutes! Mr Morris claimed the whole exercise indicated McDonald's paranoia and fear of letting their workers talk to an independent source about their views and experiences, and their reluctance allow any independant examination of their conditions of work.

Mr Pearson he gone onto talk about staff turnover and he said that the 60 percent labour turnover figure which was quoted in the fact sheet was double the industry average for the restaurant sector. Mr Morris reminded the court at this stage that evidence had shown that the figure on the factsheet had been underestimated and was infact about three times greater at the relevant time, therefore making McDonald's staff turnover about five or six times the industry average for the restaurant sector.

Mr Pearson had talked about McDonald's pay in comparison to other occupations. He had told the court that the catering jobs (of waiting, bar staff and so forth) appear among the lowest 10 occupations by pay, and that there are 9.8 million low paid workers in the UK. Mr Morris reminded the court of other evidence showing that McDonald's basic rates are at or below the bottom 20% of the catering market rates.

Mr Morris added that from the evidence, there was only one job category for males or females of any equivalent type to McDonald's which came out slightly less than McDonald's own pay, and that was for women working in bars. However he reminded that court it would not take into account tips which would be guaranteed to bring up the wages for people who were doing bar work. Ms Steel, who works part time in a bar in London, said that she could confirm that.

Mr Morris then proceeded to talk about the flexible employment contracts that McDonald's had started to develop in the early to mid '80s. He said this was a practice which they had helped to pioneer and had been adopted by many other companies and industries. He said that the effect of flexible hours was a bad thing in general - it gave power to the managers and took away workers guarantees of a set number of hours. He acknowledged that when flexible hours was an option, not a management tool, it could enhance workers rights... but that it was not the case with McDonald's.

Mr Morris finished with Mr Pearsons comments about performance related pay - another practice pioneered by McDonald's in the fast-food sector. Mr Morris said that it was a fraud, with only insignificant increases being infrequently available assuming a very high performance 'score' was achieved. He said that in practice, the 'so-called' performance related pay did virtually nothing to raise McDonald's low pay.

[The Court Adjourned]

Note:Due to the unavailability of the official court transcripts at this time, this report has not been checked for accuracy against the transcripts but was complied from extensive notes taken during the day by volunteers.
See also: The report for the previous day
The report for the following day
and, for summaries of all the key evidence given during the trial;
Trial News 1, Trial News 2, and Trial News 3