De-regulating employment law, what’s it all about?

Now, we’ve made it clear many times that we have massive concerns not only about the content of the changes to employment law that are coming but also the reasons behind them. It seems that the Government’s own recent research now completely supports our concerns.

 

The Government said we are over-burdened by ‘red tape’ and regulation – yet the current Minister for Employment Relations wrote last week that “the UK...has one of the most lightly regulated labour markets in the world” and ”burdens from employment law (in the UK) are low by international standards”. She confirmed that we are the third least, yes least, regulated major economy, just behind the US and Canada and we have less employment law than every other European economy as well as South Africa, Australia, Russia, Chile, Korea, Brazil, India, China and the list goes on and on. The OECD figures (which the Government agrees with) confirm that we have one third of the employment protection of China and half that of Germany[1]. A previous Government report accepted that UK employment regulation was already in “good shape”[2]. I should make clear that the above research was done before the majority of the Government’s changes are due to take effect just after this Easter.

 

They said we have too many Tribunal claims – the latest ET statistics show new ET claims have dropped 15% on the previous year[3]. Other Government statistics show that in 2011 96% of UK workplaces had no claims made to a Tribunal by any employee; in other words the percentage of workplaces in which an employee made a Tribunal claim was 4%[4]. Further, the Government’s report accepts that Tribunal claims are “relatively rare”.

 

They say that the Tribunal’s compensation is far too high – the most common award for Unfair Dismissal is only £4,560[5].

 

It seems that recently even the Government has accepted the fact that the truth does not support their case for change. Their new tack is to argue that in fact it is the “perception” of business (which they admit “may often be misconceived”) that has “given rise to perceptions that employment law is costly, time-consuming and over-bureaucratic” (this is the Minister again)[6], hence why change is required.

 

But does business really have such a perception? Back to the Government’s own research – this has found that business says “employment regulation was generally considered both necessary and fair” and it concluded that any perception of employment law as burdensome has been worsened by the ‘anti-regulation’ debate (which itself has been heightened by the Government!)[7].

 

So, at best the evidence for change is based on perceptions, which may not really exist and are “often misconceived” - surely a weak basis on which to drive massive Government changes to the law?

[1] Page 11 BIS Employment Law 2013: Progress on reform, March 2013

[2] BIS Employment Regulation Report, September 2012

[3] Employment Tribunal and EAT Statistics for1 April 2011 to 31 March 2012

[4] Page 25 BIS Employment Law 2013: Progress on reform, March 2013

[5] Employment Tribunal and EAT Statistics for 1 April 2011 to 31 March 2012

[6] Page 3 BIS Employment Law 2013: Progress on reform, March 2013

[7] BIS Employment Relations Series 123, Employment Regulation, March 2013


David Sorensen - Partner

For further information on Employment Rights please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights Team.

 

A Positive Government Change for Employees - Shared Parental Leave

In Scandanavia they call them “latte pappas” and in Sweden most fathers get at least one month of baby care and they can share their leave with their partners. So why not try it in the UK?

The UK is changing. Whilst businesses might not yet be operating at true levels of equality when it comes to women’s rights, figures quoted in May last year by the BBC suggested that 31% of the most senior positions across 11 key sectors are occupied by women. In 2004 this was just 19%. The number of women in senior positions can only increase, and this can only be a good thing. But in a world where everything seems achievable, how does raising a child fit in?

Well, as you may already know it was recently announced that the Government would be changing the rules on parental leave so that by 2015 a mother will be able to return to work very shortly after childbirth and share the rest of her maternity leave with her partner. This week the Government published more details, which are under currently consultation.

The idea is great. Not only will the mother be able to make a real decision about the balance between her career and home life, but it will give fathers the opportunity to get much more involved in their child’s upbringing. In turn this must be good for a child’s development. But a scheme of shared parental leave must be truly flexible and easy to use.

Having looked at the initial proposals, the system is promising and the requirements to take leave do not seem insurmountable.

There will be a statutory right for fathers and partners to have unpaid time off work to attend up to two ante-natal appointments, capped at 6.5 hours per appointment. The right to two weeks’ paid paternity leave will remain.

Parental leave of up to 52 weeks can then be shared between the parents and hopefully may be taken together. Eligibility depends on parents meeting minimum requirements of actually being in work for a minimum number of weeks and receiving certain levels of income, but the eligibility requirements at present don’t seem unreasonable or unduly onerous.

As with any statutory right to time off work, there will be notice requirements to comply with; the employer needs to be able to manage the situation with sufficient notice, but these also seem fairly straightforward. 8 weeks’ notice will be required of an intention to take shared parental leave or pay and parents will be able to fill out a form, which we hope will be easy to follow. It seems employees won’t have to set out their plans for the entire entitlement to leave when they request their first period of leave, which shows genuine flexibility in the government’s approach.

A 2 week discussion period will then be granted once the 8 week notice is given by the parent/s so that the employee and employer can discuss the pattern of leave before it is signed off. The employer will therefore have at least 6 weeks to plan before leave starts. The patterns of leave and amount of leave can be changed and at present, the number of times parents can transfer leave and pay entitlements between them won’t be limited.

It does seem that the Government will be moving us towards a truly flexible system of parental leave, which subject to finalising the specifics of administration, will no doubt be welcomed by most employees with open arms in 2015.


Daniel Kindell - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

Tolerate All – Except Intolerance?

The European Court of Human Rights has today handed down its decision in a number of cases concerning the right to freedom from discrimination on the grounds of religion and belief.

There’s a good summary on the BBC’s website. Click here to view.

With a good deal of relief, I think that the European Court has got it right in each and every case.

What are the broad principles we can take from these decisions?

• You have a limited right to manifest your religious beliefs by wearing a cross, especially if it is discreet and does not negatively impact the employer’s reputation or brand (there was no evidence in Ms Eweida’s case that the wearing of e.g. turbans and hijabs by other employees had negatively impacted BA’s brand).

• However, that right might be restricted e.g. in a hospital where on health and safety or hygienic grounds a strict prohibition in relation to uniform is reasonably imposed.

• Each country has a wide “margin of appreciation” as to how it strikes a balance between competing rights – and competing rights are I think most likely to arise where e.g. a Claimant suggests that their right to respect for their religion and belief ought effectively to “trump” a third party’s right to respect for their sexual orientation.

• Where an employer imposes a reasonable and lawful set of equality obligations in an Equality and Diversity Policy, say, employees are to be expected to abide by the requirement to respect the rights of others – even if respecting the rights of others might offend against their own religion or belief.

I have argued before that the pro-religious-rights camp is essentially arguing for a right to discriminate on the grounds of sexual orientation. The European Court has made it clear that, as a rule, the law will not tolerate such intolerance.

We applaud the decision. A victory for tolerance and commonsense – and a reminder that, notwithstanding the bile expressed in certain quarters of the media, Human Rights law often strikes exactly the sort of balance that most people imagine it should.

Paul Scholey - Senior Partner

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

“Unnecessary Burdens” in the Equality Act?

BIS has published the “Fifth Statement of New Regulations” setting out the timetable for a number of measures which will be implemented in 2013.

 

This will include “removing unnecessary burdens from the Equality Act”, which specifically means removing employers’ potential liability for harassment by a third party and removing the statutory questionnaire procedure. These changes will be implemented in March 2013.

 

The report openly acknowledges that the ‘new culture’ (which presumably means the ‘red tape challenge’) “has resulted in real benefits to businesses”. Well it certainly is of no benefit to workers!

 

This government is eroding employment rights at an unprecedented pace. It has recently announced that it will be halving the consultation period for collective redundancies (of 100 or more employees) from 90 days to 45 days, making it easier to sack employees. It has already changed the required period of service to be able to claim unfair dismissal from 1 year to 2 years, again making it easier to sack people.

 

It has also announced that it intends to proceed with the ridiculous proposal of ‘employee ownership’, despite 92% of responses to its own consultation expressing concerns about the plans.

 

Fortunately, discrimination law is one area that cannot as easily be hit, as most rights are obtained from Europe, but sure enough where rights can be reduced without being in breach of EU requirements, they are being.

 

These two changes will make pursuing a claim more complicated and difficult, meaning ultimately that wronged employees will be put off pursuing a claim.

 

In particular, the removal of the questionnaire procedure will make it even more difficult to prove equal pay cases and indirect discrimination claims, as the questionnaire process was invaluable in obtaining essential information about company statistics and comparators. The government has said that employees will still be able to ask questions in correspondence, but without the threat of an inference of discrimination if there is a failure to reply, how many employers are likely to voluntarily give the requested information? Not many!

 

Toni Haynes - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

Reduction in response time to government consultations

We often, as a firm, voice our collective opinion on government proposals. In recent years, we have spoken out on a number of issues, ranging from the implementation of a cap on trainee solicitors’ wages, to the Jackson Reforms in the field of Personal Injury law and the now imminent introduction of fees in the Employment Tribunals.

We therefore speak from years of experience when we say that clear and considered responses to consultations require a great deal of research and preparation, which can often take several months.

We were therefore alarmed to hear in recent weeks that the government has now introduced new guidance to shorten the twelve week period for which ministers were previously required to consult the public on government proposals to a mere two weeks.

This clearly will make it extremely difficult for interested parties to gather evidence and prepare a reasoned and informed response to policy changes that directly affect us all.

The upshot of this is that, potentially, sections of the public, in particular those with access to fewer resources who will no doubt struggle to meet the two week deadline, will essentially be left without a voice to challenge government policy.

This appears to us to be nothing more than an attempt by the government to suppress opposition.

To place the effect of reducing the consultation period into context, in their response to the reduction of consultation periods the Institute of Employment Rights cite the Enterprise and Regulatory Reform Bill as an example whereby the government introduced, in their words, a “technical amendment” to existing legislation, without consulting the public. This “technical amendment” was to section 47 of the Health and Safety at Work Act 1974, the significance of which is far-reaching as it overturns the law imposing employers’ strict liability for the health and safety of their employees, which has been in effect for 114 years.

The implications of this are that various existing personal injury clients of our firm who suffer from life-long, incapacitating injuries, including one client who lost an eye, and potentially a career, due to faulty work equipment, would in future have been prevented from bringing their claims against their employer.

We therefore share the view of the Institute of Employment Rights and have supported their ongoing petition to the Secondary Legislation Scrutiny Committee to voice our opposition to the government’s blatant attempt to stifle the voice of opposition.

Christopher Ridley - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

No credible non-political basis for the Government's changes to employment law

 

As lawyers, we can’t help but say: before you change something, look long and hard at the evidence. After all if it isn’t broken, why fix it?

 

What is now amazing us is that the Government’s own evidence indicates there are no sound, solid or non-political reasons for changing the current employment laws we have in this country.

 

For example, according to the BIS Employment Regulation Report for September 2012, UK employment regulation was already in ‘good shape’ before any changes were made.

 

Vince Cable admitted as much in November 2011 when he said, “the UK has one of the most effective and lightly regulated labour markets among developed economies”.

 

The BIS Response to the ‘No Fault Dismissals’ Consultation goes even further than this - identifying that the UK has less employment protection than the BRICS economies – Brazil, Russia, India, China and South Africa – and other developing countries.

 

Yes, that’s right - the Government itself believes we currently have less ‘red tape’ and employment law protection than the world’s fastest growing and newly emerging economies – and that’s before most of the proposed changes – watering down TUPE, bringing in ET fees, scrapping equality questionnaires, removing protection from third party harassment, cutting unfair dismissal compensation by possibly 2/3rds, bringing in ‘employee owner’ contracts etc - come in. Those changes are not expected till 2013.

 

It seems that all external data (largely covering the period before the Government changes began!) support the Government’s evidence:

 

-  Employment Tribunals claims are down 15% nationally.

 

-  The OECD says the UK is already the 3rd least regulated and cheapest labour market (2008) behind only Canada and US.

 

-  The recent World Economic Forum Global Competitiveness Report cited UK’s existing flexibility as to why it moved up from 10th to 8th place in its global rankings.

 

-  The World Bank’s ‘Doing Business’ rankings of 183 countries shows the UK was already 7th in the world in 2011 for ‘ease of operating’ behind only Singapore 1^st, Hong Kong 2^nd, New Zealand 3^rd, USA 4^th, Denmark 5^th and Norway 6^th.

 

So why change things? There seems to be no financial or economic need to do so - and the more the Government changes employment law, the more confused workers and businesses are about their respective rights and obligations - creating more, not less uncertainty.

 

Regardless of this, the Government seems set on a race to the bottom. Many European economies are required to amend employment regulation as part of IMF and European financial support conditions but we seem to be racing to beat them to become one of the world’s worst places to work in terms of rights and protection.

 

 

David Sorensen - Partner

 

 

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

 

 

 

Tribunal Statistics vs Employment Law Reform

 

The Tribunals Service has released statistics, for the period 1 April 2011 to 31 March 2012, showing the types and numbers of claims pursued. At the same time, Vince Cable continues to announce plans to reform employment laws to give more flexibility and confidence to employers managing their workforce. But do they marry up?

 

The total number of claims received by the Tribunal has fallen from 218,100 (2010/2011) to 186,300. For the year 2009/2010 the figure was 236,100. The fall represents a 15% drop in the number of claims being pursued in comparison to last year and a 21% fall in comparison with 2009/2010. 

The government is concerned that too many Tribunal claims are being pursued and, according to John Walker of the Federation of Small Businesses, “Too many small firms don't take on staff because they fear being taken to an employment tribunal.” Can this really be right when the number of Tribunal claims is dropping?

Vince Cable has recently announced a proposal to reduce the cap for compensation in unfair dismissal cases. The cap at present is £72,300. The Tribunal figures for 2011/2012 show that the median award of compensation in unfair dismissal cases was £4,560 and the average award was £9,133. The vast majority of claims do not get anywhere near the cap - so why reduce it?

The Tribunals have also been making more costs awards, where the losing party pays the winner’s costs. Costs should only be awarded in limited circumstances but it seems the Tribunals are more inclined to award costs these days with the number of awards rising from 487 to 1,411, with 1,295 of those awarded to Respondents i.e. employers. In fairness one of those cases involved 800 Claimants being ordered to pay costs, so if that case is counted as one a more accurate picture shows an increase from 487 to 612 costs awards. Nevertheless, there has been an increase in costs awards against a fall in the number of claims pursued. Plainly the Tribunals are already exercising their powers to dissuade employees from making unmeritorious Tribunal claims.

The median awards of compensation for discrimination cases range from £4,267 in religious discrimination cases to £13,505 in sexual orientation cases. Average awards are higher but skewed by maximum awards, such as £4,445,023 in a race discrimination claim. Of course there are going to be very serious cases which warrant substantial awards of compensation, but the figures do not begin to show that compensation is getting out of hand. 

There is so much discussion and consultation about reforming employment law and it all seems to be pointing towards making it even more difficult for employees to exercise their rights and gain access to justice. With the stats showing an ever decreasing number of claims and limited awards of compensation, I’m not at all persuaded there’s a need to change.  

Dan Kindell - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.