Monday 3rd March 2014 at 8:00am
Twenty years ago, one of the buzzwords of industrial sociology was the idea of “flexibility”. The workplaces of the digital future, optimists said, would contain large numbers of highly-skilled workers, well remunerated and able to work short hours. At the start of any week, they would choose the employers for whom they intended to work and the days they would work. Pessimists warned that if the employers had their way, they would choose workers from workplaces scattered across all the continents, engaged in insecure, low-paid work with no underlying rights.
The different hopes and fear of workers and employers shaped the press’ discovery in autumn of last year that there are between 250,000 (Office for National Statistics) and 5,500,000 (according to the trade union UNITE) workers on zero-hour contracts in the UK. Under these contracts, a worker remaining on the employer’s books is offered duties every week. In contrast to most workers, who have a fixed working week, there is no obligation to offer, or indeed pay, any minimum number of hours.
Zero-hour contracts may sound like self-employment but the worker is under the same degree of control and subordination a full-time employee. Unlike self-employed contractors, a zero-hours worker is subject to the employer’s disciplinary, conduct and absence procedures.
What this means in practice is that the “flexibility” of the arrangement goes only in one direction. According to ONS, 42% of all zero hour workers, are given less than 12 hour notice of their shifts. If a worker is contacted on a Sunday evening and asked “are you free to work on Monday and Thursday afternoons this week?”, and answers “No”, then there is a real risk the employer will never contact them again.
Because of the irregularity of their hours, zero hour workers rarely receive holiday or sickness pay, maternity rights or pensions.
One sector in which zero hours contracts are prevalent is social care, where the typical underlying relationships might be something like the following: a local authority provides care services to a shifting group of 200 or so elderly patients living in the community. It contracts out the care provision, which was once provided by council employees, to a private company. The identity of the patients will change from week to week, as their health gets worse or better, and new people require care. Using zero hours contracts enables the private company to pass on to their workers the insecurity structured into their relationship with the patients.
The Coalition government, noticing a large number of press stories about zero hour contracts, is now consulting about legislative change. The best thing would be to abolish these contracts altogether. A minimum reform would be to insist that a flexible contract (“your duties may change from week to week”) must pay a minimum number of paid hours, which might be as low as 8 per week (i.e. a full working day). This would at least give workers some protection from complete abuse, and the cost to employers would be modest (after all, what is the point of employing someone, with all the difficulty of putting them through your PAYE systems, etc, if you are not going to offer them as little as a single day’s work per week?)
Rather than do this, the Department for Business, Innovation and Skills (BIS) has limited its consultation to the issues of “exclusivity” and “transparency”.
By exclusivity, what is meant is that a contract might at present say “you are obliged to make yourself available to the employer 40 hours per week, while the employer is under no obligation to offer or pay you for any work at all”. Such clauses pay havoc with workers lives, their ability to get another job, their benefits entitlement, etc.
BIS’ own figures suggest that less than 10% of zero hours contacts have an exclusivity clause. This sounds reassuring but is misleading: the assumption of exclusivity is implicit in the zero-hour contract and there is no need to make it explicit. Most employers don’t formally dismiss a zero hours worker who does not make themselves available to work. An employer can achieve just as much without dismissal by no longer offering the employee work. There is no dismissal, so (in principle) the employee cannot sue. If the worker did persuade a Tribunal that they had been dismissed, their compensation might be nothing, as the employer would say “but there was no guarantee of work and the usual hours were a mere zero”.
BIS offers a range options for dealing with the problem of exclusivity ranging from an outright ban to positive encouragement and invites comments. Reading between the lines, it is most likely that they will do nothing to limit the terms but issue a Code of Practice as to how they might be interpreted.
That the Coalition is minded to propose such a Code is apparent from their second area of consultation, “transparency”. BIS notes that a large number of workers are unsure whether they are on a zero-hour contract or not, and proposes including within a Code of Practice a model zero-hour employment clause. It is hard to resist the feeling that the real purpose of this Consultation is to put zero hour contracts on a firmer foundation and to make them if anything more common in future.
(reprinted from Socialist Lawyer, March 2014)
Posted in Articles | No comments yet
Monday 24th February 2014 at 8:00am
Employment law requires, for its successful operation, its knowledge by hundreds of thousands of non-lawyers. Any large employer will have a personnel department, staffed by the company’s in-house legal experts. On the employee side, there may well an equal number of informal or formal employees’ representatives. A dispute may arise about (for example) whether the employer is entitled to offer its full-term employees just 4 weeks’ holiday per year. The answer will be initially in the employees’ contract, but if the employees are dissatisfied with the answer they find there, attention will generally turn next whether the contractual provision is lawful. To know the answer, you have to know what it says in “employment law”.
Many of us who in practice in this area forget all too easily how little opportunity any of these people have to refresh their knowledge of the law. No-one working in the personnel department will be a lawyer; all will be expected to keep up to date with employment law. Even if the employee representatives are trade union representatives (and, at present, only a minority of workplaces have a union rep) and belong to a recognised trade union with “facility time” (paid time off) for some of their duties; almost certainly, these days, the reps will not be given permission to attend training or refresher courses in the law. In a small company, of course, it is perfectly usual for there to be no-one, whether employer or employee, familiar even with simplest rules of employment law: such as whether a written contract is necessary, or whether wages may be lawfully deducted for poor performance…
As a non-lawyer, how are you supposed to be certain that an employer’s decision complies with the law? Many non-lawyers think the answer can be approximated by purchasing a good, detailed textbook published by an authoritative source. But if you spend any time among employment lawyers, you will see that few of us possess or (fewer still) read such a book. There are various reasons why not:
One, superficial, reason for our dislike of law books is our consciousness that employment law is always changing. What the books specialise in is summarising decisions which appeal courts make about how the law should be interpreted (“caselaw”). But the decisions of caselaw are constantly changing with the result that what is said in any one book is constantly of being out of date and therefore wrong.
Let me give a practical example of how this can happen. In 2013, the Employment Appeal Tribunal (EAT) was faced with a decision as to how to interpret parts of the Equality Act 2010 which prohibit an employer from punishing an employee who has been associated with a complaint (or in the technical language “victimisation”). What happens if the relationship has ended? Section 108 of the Act makes it unlawful for the employer to punish a former employee. But subsection 7 of sub-section 8 says that, “(7) … conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A”. On 5 March 2013, handing down the decision in Rowstock Ltd v Jessemey  UKEAT 0112/12, Mr Recorder QC sitting as a Judge in the EAT held that on the plain meaning of these words, Parliament had not given ex-employees protection against victimisation. Then on 1 May 2013, in Onu v Akwiwu  UKEAT 0022_12_0105the Honourable Justice Langstaff sitting as a Judge in the EAT held that on the plan meaning of the same words, Parliament had given ex-employees protection against victimisation.
Now imagine that you were a learned author of an annual textbook whose publication deadline was the first week of April (to coincide with the new tax year: this is not an uncommon date). Vigilant to report the law exactly as it is, you find yourself holding back the final page proofs of your book until the beginning of March. In 2013, you find that by holding back until March, you have had the good fortune to sneak in one last case. Confidently, you begin the relevant paragraph by saying, “An employee is not protected after their dismissal against victimisation” and cite as proof the decision in Rowstock. Within weeks, your text is ruined. You were accurate when you published it; since Onu the law (or, more accurately, its interpretation) has moved on.
If anyone reading this possesses their own law library I would advise them to try the modest experiment of reading all your books and looking for the dates on which they were published. If you can’t find a date, that is a small but telling imprecision on the author’s part and a sign that the book is worth less than you might hope. If you can find a date and it is more than a year, do remind yourself of how few weeks passed between Rowstock and Onu, and reflect how much chance there has been for the interpretation of the law, in whatever area most concerns you, to move on.
There is a second, much more profound reason, why lawyers distrust textbooks. When non-lawyers think about employment law, they tend to assume that the answer is found in decisions of the courts. So to give you an example, and, this is a query I have been asked in the last few weeks. “Does employment law protect a council employee who stands for local elected office, from dismissal or detriment, if they say something which could be taken to be prejudicial to their employer?” The scenario, if you think about it, is obviously one which is likely to occur. A person who wants to be elected to a council is likely to say that the previous councillors have acted badly in their post. If the candidate does not think that, then why is she standing? But anything robust she says is capable of being taken, by an unsympathetic manager, as prejudicial to the good name of the council for which she works. Yet even though we might expect this difference of interests to have generated case law, as far as I have been able to tell from a quick search, there never has been any such case.
So if this situation was to arise in real life, lawyers would be dealing with it from what we consider first principles. Section 98 Employment Rights Act 1996 only allows very few fair reasons for dismissal: conduct, capability, retirement, redundancy, some other substantial reason. An employee dismissed for what they said during an election campaign would say that their words do not come within this short list or that, if they did, they should not be treated as “misconduct” which is the only one into which the situation could be fitted. Alternatively, the employee might say that the reason for their treatment was their political opinions or belief, and that this was unlawful direct discrimination contrary to section 13 Equality Act 2010. In neither case, would there be much caselaw to go on, and a Tribunal would find itself focussing carefully on the plain, ordinary words of the relevant statutes.
Even in the case of post-employment detriment, while the effect of the decision in Onu was to reverse the decision in Rowstock, both of these cases were about the interpretation of statute. Case-law might shift the interpretation of language one way or another, but in the first and in the last resort all we have are the words of the main employment statutes – these, not case-law, determine whether claims in victory or defeat.
Posted in Articles | No comments yet
Monday 17th February 2014 at 8:00am
At the end of July 2013, the government introduced fees for Employment Tribunal cases. The fees were alien to employment law and set at a high level. Combined hearing and issuing fees of £390 (for a wages claim) or £1200 (unfair dismissal or discrimination) compare for example to just £465 or £670 for a hearing in the Court of Appeal (depending on whether permission was granted in advance or not). Or to give another comparison: the median award in 2012-2013 for an unfair dismissal and a race discrimination case were £4382 and £4381 respectively.
Given that roughly half of all dismissal cases and one in six race discrimination cases succeed at final hearings, and given that less than half of all losing employers pay in full within six months, the government’s barely-disguised intention was to dissuade workers (irrespective of the strengths of their claims) from bringing them, by the simple expedient of making it financially unrealistic for claims to reach the Tribunal. Workers are being penalised for bringing claims with the blunt intention of reducing the number of cases, and with disregard to the opportunities this provide for injustice.
Have the measures succeeded; since July have claims gone up or down?
Buried in the figures for July to September 2013 is just enough data to work out roughly what the impact of Tribunal fees has been. We can compare those figures to a year ago, to see what effect fees have had.
|Total claims accepted||47614 (J-S 2012)||38963 (J-S 2013)|
Obviously, I have only selected a few of the jurisdictions, but enough I hope to illustrate the trends. The number of cases of unfair dismissal, the bread and butter of the tribunal, has fallen by roughly two-fifths. Wages claims have also fallen, except more slowly (roughly a quarter). And race discrimination slower still (roughly a sixth: other discrimination claims are within the same bracket).
I’ve included the Working Time cases just to give a sense of the total picture – to explain why the overall fall in the number of ET claims (c20%) is slower than the fall in unfair dismissal (c40%, which is surprising when unfair dismissal takes up so much court time). In fact the working time cases (whose numbers have held up) are insignificant. Essentially it is a single “group” case brought by just one union involving many air line pilots which requires to be reissued periodically.
To pause and repeat, I am speaking here of July to September 2013. In July there were no fees, in August and September there were. The year-on-year comparison only shows two-thirds of the effect that should be apparent if we were to compare a fully post-quarter with a year ago.
So – as a very rough estimate – my prediction is that fees will result in an overall reduction of 50% or so of all Tribunal cases, with there being a sharper fall even that that in unfair dismissal (probably 60% or so), and a slower but still significant reduction in the number of discrimination cases (probably 1 in 4 when the dust settles).
The really interesting thing will be what happens when Claimants’ collective consciousness catches up with the enormity of fees.
It is possible that after a sharp “one off” reduction in the caseload, the numbers then increase again (this happened after the statutory disciplinary procedures were introduced a decade ago).
My own anxiety is that we will see the numbers continuing to fall, year on year, as the word gets out in many workplaces (especially in non-union workplaces where there is no-one else to pay the Claimant’s fee for them) that it is never worth claiming – the cost is now prohibitively expensive. The word may well go out that the Tribunal is simply no longer an option.
IE we could well see a dynamic akin to what happened in legal aid after the “scope” changes in April 2013, so that people who might have been eligible for legal aid simply assume that they are not, and that there is no legal aid available and don’t even taken their cases to solicitors. And that what government perhaps intended to be a “shallow” reduction in case numbers of say 30% or so, will turn out to have an even worse impact than we critics predicted.
Posted in Articles | No comments yet
Wednesday 3rd July 2013 at 6:00am
Some twelve months ago, I published a book “Struck Out” analysing the Employment Tribunal system that the Coalition government had inherited, and which has since been subject to dramatic change. My argument was, in brief, that the supposed flaws on which the press focussed (and which in turn have justified the changes we all know about) were in fact mythical. Rather than foisting employers with a proliferation of speculative claims, a majority of Tribunal claimants succeeded in proving that there had been unfair dismissal, or unlawful deductions of wages, etc. Rather than paying huge sums, the values of Tribunal victories were by any standard trivial. Workers who succeeded routinely leave the Tribunals with awards amounting to a tiny fraction of their actual loss. These flaws, I suggested, could be traced back to the policy discussions within the Donovan Commission, from which the Tribunal system draws its root. Or, they illustrated a tension in the earliest years of the Tribunal, between its relatively benign, statutory context, and the deeper common law traditions to which the Tribunal’s jurisprudence was quickly assimilated.
The Industrial Law Journal termed my proposals to increase the prevalence of reinstatement orders “controversial”, while otherwise welcoming the book. The book had a positive review in International Socialism, Labour Briefing, Tribune, Socialist Review, etc. The New Law Journal was a little more sceptical, suggesting that my desire for the deformalisation of the system was “deliberately provocative”: “times have changed and are not likely to change back.” On their analysis of the future direction of change, sadly, the NLJ reviewers were most certainly right.
The most analytical review appeared on a website Review 31, where I was criticised for blaming the system’s ills on certain default practices of the common law tradition (including a particular kind of contractual analysis, a deference to certain kinds of witness testimony, an unwillingness to order employers to carry out reinstatement…). The reviewer, Simon Berhman, replied: “the relative flexibility of the common law allows pressure more easily to be brought to bear from outside the law to achieve change, a process that is often much harder in countries where altering the constitution or the civil code is a laborious and lengthy process. It is at least arguable, therefore, that the common law offers a far less juridified set-up than that of civil law.” Behrman rejected any hint that the civil law tradition practised in Europe might be inherently more susceptible to workers’ rights: “While I hold no brief for the common law, the argument that rights enshrined in a constitution in themselves offer greater equality is a liberal fiction that in practice serves only to obscure the existing gross inequalities that exist in society.”
It certainly hadn’t been my intention to suggest that the legal system of (say) France or Germany or even constitutional South Africa were naturally more socialist than our precedent-based system. Rather, by focussing on the common law, my purpose was to try to get at something which I find missing in most legal analysis. In other words, an explanation for how it is that the law feels like it does, how it is that Judges can make bad decisions (and what is it, anyway, that makes a decision bad?). I wanted to explain how it is for example that a Claimant (a worker) who puts in their Claim form late can expect the most robust refusal of their Claim, whereas a Respondent (an employer) who engages with proceedings for the first time only months after they were required to will inevitably be allowed in to defend the case.
I was interested in other words in the subtle class privileges of the law, and I focussed on the common law (i.e. the deep patterns of judicial intervention) as this is the actual point, I believed, rather than anything asymmetrical about the statutory provisions, where the unequal treatment of workers and employers came in.
Of course, since 2010, the Coalition has been busy disturbing the formal symmetry of employment law, requiring one side only (impecunious workers) to pay fees, introducing one-sided privilege of employer’s dismissal conversations, etc. But these principles offend deep against the warp and weft of ordinary law. There is no need to persuade any reader of this magazine they are wrong.
The “big point” I was making was that subtle class privilege is a feature of litigation; or, to put it another way, that the problems are as often in Judges as they are in Parliament. There is no reason why this argument should be relevant only to employment lawyers. It is just as pressing when you ask a Judge to suspend an eviction, and the Judge refuses to do so because the family has been wasting its income on a satellite television subscription; or when care proceedings begin with social services’ reports of the parents’ chaotic and untidy homes…
This article was first published in the June 2013 edition of Socialist Lawyer magazine. The same issue also contains articles by Michael Mansfield, Anna Morris, Wendy Pettifer and many others. The magazine is sent to all members of the Haldane Society of Socialist Lawyers. Membership rates start at £20 per year.
Readers can buy Struck Out with a 30% discount and free UK P&P by entering the code ‘PLUSTRUCK’ at http://www.plutobooks.com/page/promo
Posted in Articles | No comments yet
Tuesday 30th April 2013 at 9:00am
The Coalition has now published the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, the secondary legislation under which fees will take effect.
Fees remain at the punitive levels on which the Government consulted: £390 for the issuing and hearing of a wages claim, or a claim for a redundancy payment, or for certain types of simple, but unusual hearings (eg applications for time off to care for a dependent); £1200 for the issuing and hearing of an unfair dismissal or discrimination claim, £1600 for an appeal.
The government has not taken this opportunity to clarify when fees will be introduced, which remains the vague, official deadline of “summer 2013″. Employment law advisers will know that there is a likely to be a rush by claimants to “beat the deadline”, whenever it is set. The government, presumably, seeks to frustrate any last-minute surge by keeping back the date for as long as possible.
There is nothing in these Regulations about when the hearing fee will be payable, or what the sanctions will be for non-payment (discretionary vs automatic strike-out); presumably the answer will appear in the new Tribunal rules, whenever they appear.
There is nothing in these Regulations about reinstating a claim wrongly struck out for non-payment.
And there is nothing in these Regulations about how to pay: at one point the impression was that all claims would be required to be started online by paying a fee, but the government no longer seems to be insisting on that. This is probably for the best Tribunals (unlike courts) do not have tills, counter staff, etc. Most lawyers, whoever they act for, are cautious about requiring claimants (many of whom are unrepresented, have only a hazy sense of Tribunal procedures, etc) to pay online. This just seems to be ripe with possibilities for injustice. Yet the alternative, of allowing payments at the Tribunal, would have its own problems…
Posted in Articles | No comments yet
Monday 29th April 2013 at 1:23pm
What is the point of employment law? Should you try to work out an answer to the question through the changes which the Coalition government has been making in 2012 and 2013, the first thing you would conclude is that the law exists to rewrite industrial relations to the benefit of employers at the expense of workers.
No “reform” illustrates this better than the changes which are being made to dismissal procedures, starting from this summer, to prevent a tribunal from enquiring about the conversations between employer and employee in the run-up to dismissal. Where an employer proposes that an employee should consent to their own dismissal, this will be deemed a “protected conversation”. If the negotiations break down and the employee maintains afterwards that the employer said something crucial to their dismissal that shines a bright light on the unfairness of all that followed and all that came before, the Tribunal will not be entitled to enquire what it was that the employer said. The proposal is in fact even worse than this makes it sound. The “protection” only operates in one direction. Should the employer want to rely on his own words later – for example, because he made a cash offer to the worker, which the worker failed to beat in subsequent litigation – this will not be protected. The employer can tell the Tribunal, and the Tribunal could perfectly easily take this into account when deciding for example who should pay the costs of the litigation.
Me for New Left Project. More here.
Posted in Articles | No comments yet
Thursday 25th April 2013 at 10:58am
At a time when employment law is changing, rapidly, for the worse, it is only right to report (critically) on a modest victory. For several weeks, the House of Lords and the House of Commons have been batting back and forwards between each other rival version of “employee shareholder” status, previously known as “employee ownership”, ie the scheme unveiled at last year’s Tory party conference by George Osborne, under which employees on joining a company would be required to assign various employment rights, including their right to claim unfair dismissal, in return for a small amount of shares in that company.
Yesterday (24 April), in order to bring to an end a series of defeats in the House of Lords, the government introduced an important concession into the Growth and Infrastructure Bill and the House of Lords voted to accept the scheme (having previously rejected it twice).
How the scheme will work is now as follows: an employee will only shed their unfair dismissal rights if, prior to entering into a contract, the employee has received advice from an independent advisor. Further, the employer will have to pay the costs of that advice (this puts on a statutory footing what was previously merely the common industrial practice that employers pay for employees’ advice on whether or not to accept the terms of a settlement agreement on dismissal).
My fellow employment blogger and barrister Daniel Barnett concludes that “Doubtless unions will now start charging fees for advising on employee shareholder status, and look for those fees to the employer.” If the unions can only manage to do what is good for them, he will be proved right.
The above concession needs to be set in the context of other concessions made by the government (not merely on whether the shares will be taxed; which is what the government has been emphasising), including that any social security claimant who refuses an offer with employee shareholder status will not forfeit their benefits, and existing workers will be protected from any detriment if they refuse an invitation from their employer to switch to an employee-shareholder contract
The essential idea of employee shareholder status – that an employee should assign their most important workplace protection at the start of an employment contract, as a condition of being allowed to work at all, in return for shares of modest value that it may be wholly impractical to redeem – remains wholly malign. What these concessions represent is at least an admission that it would be wrong to make workers at the start of the contract be subject to this bad bargain covertly. Workers are going to be given a choice. The best hope is that sufficient numbers of people choose no, so that the whole scheme becomes unworkable…
You can buy Struck Out with a 30% discount and free UK P&P by entering the code ‘PLUSTRUCK’ here.
Posted in News | No comments yet
Thursday 18th April 2013 at 12:47pm
This year, the coalition government is launching the most dramatic changes to employment law since unfair dismissal was introduced in 1971. The coalition’s reforms have already included from this April reducing the amount of time employers need to consult on collective redundancies, removing of legal aid for all employment cases except discrimination and trafficking, and adding new requirements for whistleblowing claims. Further reforms are planned, including capping the amount an employee can be awarded for lost earnings in an unfair dismissal case at one year’s salary (or the national average if they earn more than that), changes to dismissal procedures to disable a tribunal from enquiring about certain conversations between employer and employee in the run-up to dismissal, a new set of employment tribunal rules and – most controversially – the plan to charge workers fees to have their case heard by an employment tribunal, which will come into effect this summer.
Were any of these changes necessary? My book Struck Out considers the ‘old’ tribunal system from a perspective of industrial justice, addressing Claimants’ success rates at full hearings (surprisingly high) and their awards following success (unjustifiably low). It explains the problems of litigation in terms of over-complication of the law, unpredictability of outcome, and injustice of compensation. It shows how these problems originated in the policy decisions of the Donovan Commission, and in an incomplete break after 1971 from the contractual reliance of the common law. It shows, in effect, that a fair Tribunal system would require something like the exact opposite reform project to the one which the government is now implementing.
For further action and advice visit:
You can buy Struck Out with a 30% DISCOUNT and FREE UK P&P by entering the code ‘PLUSTRUCK’ here.
Posted in Articles | No comments yet
Friday 12th April 2013 at 10:32am
[Written with Anna Macey; originally published at Left Foot Forward. Re-reading it now, "ever" is hyperbolic; but this is certainly the worst sets of attacks since we acquired individual employment law 40 years ago]
The coalition government has launched the most radical overhaul of employment law since unfair dismissal was created in 1971.
On Saturday, another series of employment law reforms were implemented, including reducing the amount of time employers need to consult on collective redundancies from 90 days to 45 days, the removal of legal aid for all employment cases except discrimination, and adding the requirement that a disclosure for the purposes of protection from whistleblowing has to be in the public interest.
This is on top of earlier reforms, including increasing the time an employee needed to work before bringing a claim of unfair dismissal from one year to two years, raising the amount of costs that can be awarded by an Employment Tribunal from £10,000 to £20,000, and the removal of lay members from tribunals in most cases.
Further reforms are planned, including capping the amount an employee can be awarded for lost earnings in an unfair dismissal case at one years’ salary (or the national average if they earn more than that), and – most controversially – the plan to charge workers fees to have their case heard by an employment tribunal, which will come into effect this summer.
It is worth emphasising that neither party of the coalition included any of these changes in their manifesto, they were not a part of the coalition agreement, and there is no popular mandate for them. Tellingly, they are not even supported by employers, with less than 1 per cent of those cited in the BIS Call for Evidence in 2011 saying that unfair dismissal legislation put them off hiring new employees.
Yet to justify the obstacles it has erected in a workers’ path to justice, the government has stated two overriding aims: to encourage employers to recruit, and to reduce the number of claims before employment tribunals.
The government are convinced that a vital part of kick starting an economic recovery is to reduce workers’ rights, and make it more difficult to enforce those rights that remain – such as, say, claiming compensation should they be dismissed without good cause. The policymakers reason that this will persuade employers to recruit more. This reasoning is flawed; it ignores the fact the UK already has one of most deregulated labour markets in the West.
Lack of evidence
Taken together, the evidence that these “reforms” will promote employment is simply not there. They will, however, promote job insecurity, enable bad employers to get away with breaking the law, and impact particularly those least able to cope with unemployment (such as older workers who will find it more difficult to find further work) – after which they will then be hit by the benefit changes that have just been made.
The biggest change which came into force on April 6 was the reduction of the 90 day consultation period for redundancies of 100 or more workers to 45 days. The government argues this change will save administrative time and reduce costs, therefore potentially leading to fewer redundancies. Meanwhile, employees will apparently benefit from “greater certainty and a less marked impact on morale and productivity”.
This ignores spectacularly the purpose of a redundancy consultation: it is not merely a means of delaying the inevitable redundancies to enable employees to find new jobs, or even work out the fairest way of selecting for redundancies. It is to provide time for a genuine consultation between a large employer and their employees, a time for both sides of industry to meet to try and avoid, or at least reduce, the need to make redundancies at all.
For a large business – and this change only affects large businesses – that inevitably takes time. It is difficult to see how a fair consultation, taken in the spirit of a consultation, could be completed in merely 45 days.
The government’s bizarre suggestion that technological advances make consultations quicker to carry out conveniently ignores the fact that the difficulties with consultation are normally brought about by a failure by employers to genuinely consult, rather than about a lack of access to information.
That the government sees fit to argue workers themselves will benefit from this change is worrying: being deprived of the opportunity to have a genuine consultation, reducing the chances of changing an employer’s mind about the need for a redundancy, and having less time to apply for other positions can hardly lead to certainty and improved morale.
Of course, this is one of many, many changes that have been made, with many more in the pipeline. Although concerning on an individual level, it is when taken together that the full force of the changes becomes apparent.
Collectively, the changes to employment law amount to the biggest assault on workers’ rights ever. They very significantly weaken worker bargaining power, and will increase job insecurity for millions. And like so many of the coalition government’s policies they impact particularly on the most vulnerable.
[Left Foot Forward readers are then informed that they can purchase our latest publication Justice Deferred: a critical guide to the Coalition’s employment tribunal reforms at a cut price of 75 per cent off by quoting 0804Lff2013. Links to do so are at the end, here]
Posted in Articles | No comments yet
Monday 1st April 2013 at 4:40pm
The most important change to employment law which takes effect from today is the one which has had the least coverage – the near-abolition of legal aid in employment cases.
The reason it has had so little coverage is that most lawyers who practise in employment law (and whose practices are viable) have a majority Respondent business – they chiefly represent employers. There is very little reason for an employer to ask whether the person suing them is being represented pro bono, on a win no fee agreement, by a trade union, or on legal aid. Moreover, the sorts of clients who are most likely to be on legal aid – unemployed workers, without union representation, and with low-value claims, generate the sorts of cases that are least likely to end up taking a lengthy amount of court time or appearing in legal reports, etc.
The rule change is as follows: until today, it was (theoretically) possible to get “legal help” (ie assistance with drafting documents, etc, but not “representation”) in almost every category of employment tribunal claim. Representation was availablle for appeals to the EAT and higher courts.
As of today, legal help remains available, but only for discrimination claims (ie claims under the Equality Act – not, for example, union discrimination cases) and for traficking cases (of which there are very few in the system indeed).
On appeal, representation remains theoretically available.
The government estimates that the cut in legal aid in employment law will reduce its total spend on this category of case by around 76%. There will of course be knock-on effects elsewhere. No-one especially believes that workers, unable to get legal help with wages claims, will stop bringing them. Instead they will be heard by a judge, with the claimant unrepresented.
The recent words of Sir Alan Ward in Wright v Michael Wright Supplies Ltd & Anor  EWCA Civ 234, reflecting the exasperation of one previously important voice in the legal system, ie the senior judiciary, in response to the rule change:
“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”
More details about how legal aid is changing here here.
Realistically, it is likely that very few solicitors indeed will continue to offer employment law on legal aid; the key difficulty will be finding a solicitor who can act for you in cases of this sort.
Also changing this month are the rules on:
Redundancy: Where 100 or more employees are involved, the minimum period for collective redundancy consultation is reduced from 90 days to at least 45 days before the first dismissal occurs.
SSP, SMP, etc: The weekly rate of statutory sick pay increases from £85.85 to £86.70. The weekly rate of statutory maternity, paternity and adoption pay increase from £135.45 to £136.78.