Health & Safety & The Boer War

The recently enacted Enterprise and Regulatory Reform Act contains a number of disturbing provisions, including the frankly bonkers proposals in relation to share incentives for employees who are prepared to sign away their employment rights. 

 

But hidden away in there, and most disturbing of all perhaps, was Clause 61, a last minute amendment that snuck into the Bill under the auspices of the Government’s clamp down on regulation red tape and compensation and the so-called compensation culture.

 

It is significant to note that:

 

• Clause 61 was never subject to any form of public consultation; and
• It was introduced to the Bill after the Bill had been through its Committee stage in the House of Commons (in effect, it was hardly scrutinised at all).

 

What was the effect of Clause 61? 

 

In terms, it rolled back the statutory Health and Safety framework for civil claims so that now in 2013 an employee injured at work is in essentially the same boat in which he or she would have found themselves in 1897.

 

That’s right, 1897.

 

116 years of progress in Health and Safety has been abolished in an eye blink. 

 

My colleagues who support workers who make claims in respect of work related injuries always say this: our clients have never, ever expressed as great an interest in compensation as they have wished to be free from injury or disease. 

 

And the strides made in the last 20 years in improving safety at work have been enormous.  They have been driven, by and large, by employers who have improved their standards of care at work, in response to claims brought by injured victims – since for many employers the finest incentive to improve good practice at work is a positive impact on the bottom line (i.e. a reduction in insurance premiums relating to workplace claims).

 

The details of the change in the law are dry.  In its broadest sense, it might be said that it will now be substantially more difficult for injured employees to recover compensation for those injuries.

 

Insurance Companies will save money. 

 

But the NHS will not.  Historically we have recovered rehabilitation costs from Insurers; now those costs will be distributed back to the State. 

 

And isn’t the point of insurance after all to try to spread amongst us all the impact of one devastating event upon an individual? 

 

The Government concedes that up to 70,000 claims a year might be adversely affected by their changes to the law. 

 

We were not asked about it.  There is no evidence base for the changes that have been made.  Yet more (see our previous Employment Law Blogs) false claims of “perception of over regulation” are spouted by the coalition. 

 

It’s about time we started to legislate to deal with real problems, rather than “perceptions”.

 

Until we do, more people will suffer without redress, Health & Safety standards will slip, families will be devastated by death and injury – and eventually (since I think sometimes these things go in cycles) someone will have to face front and say that Health & Safety laws are there for a purpose.

 

By then those now in power may be enjoying lucrative consultancy contracts in the Lords.  I wonder who will apologise to the injured and the families of the dead then.

 

Paul Scholey - Partner

 

For further information on Employment Rights, please visit our website or call 0033 3344 9600 and ask to speak with our Employment Rights team.

 

‘More Redundancies – Less Time’; the reduction in the period for collective consultation

Perhaps one of the most draconian of the 2013 changes to employment law is the reduction in the period for consultation, effective from 6th April 2013, when an employer proposes to make large-scale redundancies.  

As we have seen in the news in recent months, the downturn in the economy has hit even established businesses hard and we have read how the likes of Comet, HMV and Blockbuster have entered administration and have been forced to reduce their workforce.

As a firm we have also noticed an increase in the number of protective award claims - where employers fail in their duty to consult with their employee’s representatives, such as recognised Trade Unions, when mass redundancies are proposed - as businesses continue to struggle in the current economic climate.

Previously, under the Trade Union and Labour Relations (Consolidation) Act 1992, if an employer planned to make 100 or more redundancies within one organisation it had to consult the representatives of those affected employees for at least 90 days before the first dismissal took effect, providing there were not extenuating and unforeseen circumstances.

However, as of 6th April 2013, the 90 day consultation period has been cut to just 45 days, although where between 20 and 99 employees are earmarked for redundancy, the consultation period remains 30 days.

It was stated by the Employment Relations Minister, Jo Swinson, that the change in the law was because the previous 90 day period caused “unnecessary delays for restructuring and made it difficult for those affected to get jobs quickly”. It is therefore the government’s position that this change, along with all others planned for later in 2013, will create growth and flexibility by allowing businesses to easily respond to volatile and changing market conditions.

We however prefer the opposition view put forward by the Labour MP, John McDonnell, when he said; “the reduction means that the opportunity for consultation is hopeless. It will not happen and will be meaningless as there will not be the time for the employees to work with the employers to look at alternative plans for that company”.

This view, which we share, is supported by the example of Jaguar Land Rover who in 2009 announced that they were to make up to 1000 employees redundant, before £70 million was identified towards the end of the 90 day consultation period which ultimately prevented any job losses.

It is therefore doubted whether this change to the law does indeed “strike an appropriate balance between making sure employees are engaged in decisions about their future and allowing employers greater certainty and flexibility to take necessary steps to restructure[1)”...

[1] – Announcement by Jo Swinson, Liberal Democrat Employment Relations Minister, 6th April 2013

Chris Ridley – Solicitor

For further information on Employment Rights, please visit our website or call 0033 3344 9600 and ask to speak with our Employment Rights team.

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.