Iain Birrell looks at some of the major changes to workers’ rights introduced in the last couple of years which, he argues, amount to a serious assault on the ability of workers to take action
Although many of the rights enjoyed in the UK come from Europe, most are home grown and came about as a result of earlier struggles and injustices. They reflect, in large part, a tension between the employer’s right to manage their business and the need to avoid exploitation of their workers.
As such, employment rights are inherently political. Indeed unfair dismissal was introduced directly as a means of stopping collective action by giving individual rights. It is this political angle that is driving the current changes and the government is pushing them through with as little scrutiny as possible on a wave of right wing propaganda.
Using the recession as justification
The recession has given the Conservative led government a great excuse to introduce extensive changes that undermine workers’ rights. They justify everything by saying that it will either boost economic recovery or help to cut costs. A favourite refrain from government quarters is that “business tells us…” which has led to criticisms that they are making legislation on the back of anecdotes. But are they? Well, yes.
Complaints from business and sections of government that Britain is bogged down in “red tape” ignore data from the Organisation for Economic Co-operation and Development, which shows that UK workers are the third least protected in the western world.
Tales of an economic paralysis caused by excessive regulation leading to a reluctance to hire new staff have been shown to be nonsense by the government’s own research. Scare stories of the number of employment tribunal claims spiralling, along with telephone number-like compensation, have all been scotched by official data from tribunals themselves.
Despite this, the reforms have gone ahead. Many are already law, with more yet to come.
Watering down rights
So many rights have been attacked there is not enough space to go into detail about all of them. The following are the ones most commonly relied on by workers and therefore the ones causing the most concern.
Unfair dismissal – employees who started work for their employer after 6 April 2012 need two years’ continuous employment to bring an unfair dismissal claim (previously they only needed 12 months). According to the government’s own figures about 3,700 to 4,700 people will lose out on this crucial right as a result.
Redundancy consultation – employers used to have to consult for 30 or 90 days (depending on the numbers affected) in redundancy situations involving 20 or more redundancies. The 90-day period was cut to 45 with effect from 6 April 2013.
Whistleblowing – the government decided that the law on whistleblowing had to be amended so that disclosures that could be characterised as being of a “personal” rather than “public” interest are no longer protected. Claimants also had to show from 25 June 2013 that they reasonably believed that the disclosure was in the public interest.
Pre-termination negotiations – this is a new concept dreamt up by the government following complaints from the employer lobby that it was unfair to have to either follow a fair procedure, or have evidence to back up an accusation that they wanted to level at an employee before sacking them. So from 29 July 2013, as long as they offer some sort of leaving package, they can tell an employee that they want to get rid of them in a meeting that is completely secret.
However, the employee cannot then use that information as evidence in an unfair dismissal complaint, unless they can show the employer was guilty of some form of impropriety such as bullying or perhaps some form ofdiscrimination.
As there is no guidance about what the offer should contain, it is possible that a derisory offer (and some negative words about their work), would be enough to cause some employees to leave anyway. Because of the secrecy of the arrangements employees cannot claim constructive dismissal for resignations arising out of these meetings.
Discrimination by third parties – until recently, if a worker was discriminated against by someone at work who was not a fellow employee, but was nevertheless to some extent controlled or influenced by the employer, then they could sue the employer for failing to protect them. The classic example of this is a racist comic who rounds on a black member of staff at a function. The government is abolishing this right from 1 October 2013.
Preventing future discrimination – Employment tribunals currently have the power to ask (not tell – they have no powers of enforcement) an employer who has just lost a discrimination case to take certain steps to prevent future discrimination that might have arisen from a faulty HR system, or a lack of training for staff.
Although tribunals have only used this power in about half a dozen cases since it was introduced, the government branded it “an unnecessary burden on business” and will be abolishing it. This decision was made by the Government Equalities Office whose strapline is “putting equality at the heart of government”.
TUPE and changes of contractors – in 2006 the government amended the Transfer of Undertakings (Protection of Employment) Regulations to cover transfers of staff where one contractor lost the contract, and another took over lock, stock and barrel. This was because of uncertainty about whether TUPE applied or not and was even welcomed by business as providing certainty and a level playing field. However, in its enthusiasm to strip away all the so called “gold-plating” in European sourced law, the government seems to want to remove this at some point in the near future and return everyone to the pre-2006 days of confusion.
Swapping shares for rights – in one of the most sinister moves of all, the government decided that it should be possible for people to sell their unfair dismissal and certain other rights in exchange for shares of between £2,000 and £50,000 in their employer’s firm. Although derided by industry and unions alike, the chancellor George Osborne was determined to see it become law. The government clings to the self-delusional notion that this will be entirely voluntary and won’t be imposed upon staff.
Payment is not in cash, but in the company’s shares. The minimum value of £2,000 may be an illusory sum in companies which are not quoted on the stock market and whose shares are not therefore traded freely and openly.
As small companies frequently restrict when shares can be sold and whom they can be sold to, the chances of getting a proper valuation are slim. Although take-up is likely to be limited when it is introduced on 1 September 2013, the way the government is treating rights as commodities is extremely worrying.
Enforcing rights becomes harder
The second prong of the government’s attack has been to make it more difficult to enforce workers’ rights once they have been breached. This also has two aspects. The first of these is abolishing or limiting various watchdog bodies that look out for working people. These include the Agricultural Wages Board (abolished on 25 June) despite the valuable minimum wage protections it gave to vulnerable seasonal and agricultural workers.
The Equality and Human Rights Commission, whose mandate is to promote equality and run test cases, has had its budget slashed from £70m to £17m and had its powers and mandate significantly restricted.
Secondly, it is becoming harder and harder to enforce rights in employment tribunals. In discrimination cases the government has said that, in spring 2014, it will abolish the statutory questionnaires used to gather evidence and which can help to decide whether the claim should even be brought.
From 29 July 2013 bringing a claim has attracted fees of between £390 and £1,200. Appealing against a wrong decision to the EAT incurs further fees of £1,600. These usually (but not always) will be payable by the losing employer but CAB recently reported that half of all awards go unpaid. A wronged claimant may simply be throwing good money after bad. These are set to triple in the future, as the government wants to make employment tribunals self-financing through fees.
Unfair dismissal cases can now normally be heard by lawyers and not people with actual experience of industry; compensation for unfair dismissal will soon be limited to 12 months’ losses even if the former employer caused far more in damages to the employee than that. The amount of costs a tribunal can award has doubled, as has a deposit that the claimant can be ordered to pay if the tribunal thinks their claim is weak.
Taking tea at the Ritz
A judge once said that justice was open to everyone in the same way as the Ritz Hotel. By making it harder and harder to enforce fewer and fewer rights, the justice system is, like the Ritz, now only open to the moneyed few.