“A modest proposal?”

The Institute of Directors today tells us: help growth by removing employment rights. The right to request flexible working is cited as a culprit. Get rid of it, says IoD, and the money will come rolling in.

One has to wonder, is this dishonest politicking, or merely misinformed?

It’s interesting that the flexible working regime should be one of the areas singled out for attack. It is an easy target, because it smacks of political correctness (and IoD wouldn’t want to be seen attacking sex discrimination laws generally – though that undoubtedly is the agenda). It mainly protects women; it relates especially to childcare issues; it’s soft and touchy-feely and exactly the sort of thing that it’s easy to be cynical about. Bold brave employers need to be able to set their rotas and tough luck if your school hours don’t fit, because onwards and upwards for business and the devil take the hangers-on.

But there couldn’t, in fact, be a worse target for the IoD’s ire. Because our flexible working “rights” are a hopeless, toothless attempt at paying lip-service to proper flexibility.

The key is in the name: this is a right to request flexible working. Not a right to work flexibly. If your employer listens to your request, and can point to one of a (pretty exhaustive) list of reasons why it can’t be granted, that’s about the end of it (well, you get an appeal; the employer says no again: The End). Occasionally an employer gets it wrong, procedurally, and a Tribunal can award 8 weeks’ pay if the right buttons aren’t pushed – but as “rights” go, it’s about as useful as a chocolate fireguard.

So how is this right crippling growth in the UK? No-one has spelled that out, which is unsurprising, since I imagine that your average small/medium employer isn’t troubled by the regime on flexible working for more that what, a couple of hours a year?

Now, had it been suggested that we should simply abolish a system that doesn’t help anyone very much, I might at least have conceded that the argument was intellectually honest. But instead this is thrown in as part of a generalised attack on employment rights.

Why not go the whole hog? Abolish the laws on discrimination, unfair dismissal, whistleblowing, redundancy, holidays and the minimum wage. At least then there’s an honest argument that business might save money.

But it’s an argument that forgets that the best employers have cultures that protect, encourage and develop their workforces. You don’t get the best out of your employee who returns from maternity by insisting that she works 9 till 5. But you might get her loyalty, commitment and hard work by taking a sensible approach to a request for flexibility.

Employment rights aren’t just there for the benefit of workers. Employers who respect them respect their workforce, and profit as a result. That way might lie growth; the IoD’s approach is nothing more than a race to the bottom.

Paul Scholey

Operations Partner
Head of Employment Rights

Employers Charter? What about the workers?

From Unite the Union

Government's charter for bad bosses

27 January 2011. Unite, Britain's biggest union, has branded a charter produced by the government for employers as a 'charter for bad bosses'.
BIS, the department for business and skills has produced an employers’ charter which the union believes gives employers a green light to bully and intimidate. It even encourages employers to sack staff.
Unite general secretary-elect, Len McCluskey, said: "This charter gives bad  bosses a green light to bully and intimidate. It even encourages employers to sack staff. It's no coincidence that the employers' charter comes on the same day the government proposes to make it easier to fire workers, but harder for them to access justice in the courts. The government have declared open season on workers’ rights.
"In one of the gloomiest weeks for the economy this year we've heard nothing from the government about creating jobs. We only hear about the need for cuts and harassing people out of work.
"In reality this does employers no favours. Employers who misinterpret this advice will quickly find themselves in court and the guidance threatens to cause chaos across industry."
ENDS
Contact: Ciaran Naidoo 07768 931 315
The ‘charter’ can be accessed here: http://www.bis.gov.uk/assets/biscore/employment-matters/docs/e/11-680-employers-charter.pdf

Why the trade union voting standards are higher than general elections

In today’s Daily Mail:  “Currently, there is no minimum number of union members who must vote in a ballot for strike action, meaning a militant few can bring about industrial action.”

We see.  That would be, then, exactly like our general elections, where a turnout of fewer than 50% of the population can elect a government to run the country for the next 5 years.

The “few” can only bring about anything if nobody else bothers voting.  Typical Lazy Mail reporting.

How many politicians would be enjoying their expenses, we wonder, had each been obliged to win 50%+ of the votes of all their constituents?

Employment Tribunals – access to justice for workers

Radio 4 today reported attacks by the CBI on the number of Tribunal cases, with employers allegedly forced to settle unmeritorious cases.

The business lobby would say that, of course.

The reality for working people is very different.

Unless entitled to help from a Union, many employees will have to represent themselves at Tribunal – employers choose to enlist lawyers (and increase their costs) because represented parties tend to fare better in Tribunal than unrepresented ones.

And there is hardly equality of arms: the employer continues to trade, whilst the employee is out of work – in the current climate, possibly for months.  The employer’s legal costs are tax-deductible legal expenses; the employee is probably on benefits until new work is found.  It is suggested an employer might have to pay £5000 to “buy off” the prospect of an expensive claim.  Perspective: with average earnings about £26000p.a. are we really to be told that it’s unreasonable to pay 2.5 months’ salary to compensate someone who is out of work altogether?

And who is pursuing all these unmeritorious cases?  The Tribunal’s own statistics show that over 50% of unfair dismissal cases dealt with by Tribunals last year resulted in a finding in the employee’s favour.  If employers are so hard done by, despite getting it right as the CBI suggest, why are we seeing more cases than not succeed when heard by an ET?  The CBI suggests that employers are forced to settle because of worries about costs; these figures suggest that in many cases, the settlement reflects some failure on the employer’s part to deal fairly with his employees.

Case numbers have increased – but largely because of a number of “multiple” claims (e.g. 1000s of local authority equal pay claims, and the 30000 or so airline claims that are “duplicates”, but protect employees’ positions regarding time limits) that distort the real picture.  And since our individual rights have increased over the last 20 years, it would be strange if there weren’t more claims made, to enforce them.  And in the middle of the largest global recession for decades, is it surprising that numbers might be up? One HR officer told Radio 4 that these troublesome new rights had been foisted on us by Europe.  What ought we to get rid of, then?  New rights in the last 15 years include rights not to be discriminated against because of disability or sexual orientation or religion; a right to a minimum wage; adoption leave; better maternity rights; and rights to decent paid holidays – shall we take these away?  Politicians are quick to tell us what new rights we benefit from – yet a hue and cry issues when individuals want to exercise those same rights.  Rights are worthless unless there is a way to enforce them.

Employment Tribunals provide essential access to justice for working people.  Let’s not see a self-interested lobby undermine them.

Morrish Solicitors Employment Rights

Internships or free labour?

We used to call it work experience in my day; but over recent years the humble “work experience” has become the American “internship”.

Internship loosely translates as “work for free”. In theory, that is fine. The idea behind it being that if you perform well, there is the chance a paid job as the end of that particular rainbow.

An interesting article on the BBC website which discusses how intern positions have become the preserve of those elite who have the fortune of someone else’s fortune to support them. They can just work for fun.
http://www.ippr.org/members/download.asp?f=%2Fecomm%2Ffiles%2FWhy+interns+need+a+fair+wage%2Epdf

However, an even more interesting slant on this subject is the impact of the national Minimum Wage Act on UK interns.

The Institute of Public Policy Research published a report on 2nd August 2010. See it at http://www.ippr.org/members/download.asp?f=%2Fecomm%2Ffiles%2FWhy+interns+need+a+fair+wage%2Epdf

The report points out that within the private sector anyone deemed to be working is entitled to be paid, at least, the national minimum wage.

The concept of interns, as mentioned above, came from across the Atlantic. In UK law they are not defined. Instead, therefore we must ask whether they would meet the definition of “worker” within the National Minimum Wage Act.

A worker is defined as someone who “has entered into or works under a contract of employment or any other contract...........whereby the individual undertakes to do or perform personally any work or services for another party to the contract......”

It would be impossible to give a categorical answer to the question of whether an intern is entitled to be paid national minimum wage or not. Each case would have to be judged upon its own facts in an employment tribunal. The reality is that any person (in particular someone fresh at university) who is hoping to secure their dream job with, for example a magazine, is going to take that magazine to a tribunal to test the point. Chances of them getting a job afterwards....erm.......nil.

The only way to resolve it is by legislation. Until then private companies can continue to exploit this free, and pretty endless, supply of free labour.

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Toni Haynes comments on the impact of Company liquidation

I have recently successfully represented another employee in a claim for a protective award against an insolvent employer.

In this case the employer entered into liquidation with no warning to the 24 employees, who were all immediately made redundant. There was no indication to the employees that their jobs were at risk and it came as a surprise to most of them. As the employer was at this stage in liquidation they did not receive notice pay, redundancy pay or pay for the last two weeks of employment, those payments having to be made from the Redundancy Fund.

The employer also failed to consult about the redundancy situation. As there were more than 20 employees to be made redundant, the employer should have consulted for at least 30 days before the first dismissal took place. Again this legal requirement was ignored.

The Tribunal found that there was a complete disregard to comply with the law and awarded the maximum amount of compensation of 90 days pay for each employee who was made redundant.

Despite this finding, the employer will not have to pay the compensation as he is insolvent. The liquidators, also, will not find themselves liable. The payment will have to be made from the Redundancy Fund, in other words by the taxpayers.

This is a situation that we come across time and time again. The insolvency process does not occur overnight but despite the fact that a company knows that it will shortly go bust, the employees are kept in the dark. Often the job of dismissing the employees falls to the administrators/liquidators but they ignore the legal requirements as they will not be personally liable if there is a subsequent award of compensation made by the Tribunals.

So not only is the taxpayer responsible for paying the employees their redundancy pay, notice pay, holiday pay and other unpaid wages, but they then have to also fork out millions of pounds for the deliberate breach of the duty to consult by the directors of the company and the insolvency practitioners.

The new Con-Dem government is keen to convince us that they stand for fairness, a phrase we heard all too often in the run up to the election and that they are eager to cut costs. Maybe they should consider reviewing the laws regarding the liability of company directors and insolvency practitioners. I’m sure that if the directors/insolvency practitioners suddenly found that they were responsible for paying out 90 days pay to each employee who was made redundant, rather than the payment coming from the public purse, then they would be able to comply with the consultation requirements and not leave employees finding themselves without warning out of a job.

For further information, please contact our Employment Rights department on 0113 245 0733.