Fairness in Employment?

The Prime Minister is making a big play of his 'fairness' agenda at present. So let's see how far his concept of fairness stretches into employment rights.

The first major attack, to be implemented this April, is on the Employment Tribunal system. The qualifying period for unfair dismissal is to be lengthened from one year to two. The next proposal is to charge workers to access Employment Tribunals as much as £1,250 for a full hearing, more if the claim exceeds £30,000. There are also a number of procedural changes proposed including new Pre-Claim Conciliation arrangements, wider powers for Employment Judges to strike out claims, higher cost orders and reducing the role of lay Tribunal members.

Other attacks on employment rights include:

• Taking away legal advice safeguards in compromise agreements
• A 'Rapid Resolution Scheme' for straightforward claims
• Introduction of 'protected conversations' - a licence to bully employees.
• A 'compensated no-fault' dismissal scheme for smaller firms together with wider reforms to make it easier to dismiss by reducing procedural safeguards.
• Reducing the consultation period on collective redundancies and weakening consultation rights, particularly for trade unions.
• Similar proposals to weaken TUPE provisions.

The UK Government also consulted on family-friendly rights earlier last year. That proposed a range of changes, in fairness several positive, to extend the right to request flexible working, parental leave for fathers to attend antenatal appointments, carry over and buying out annual leave and powers for ETs to order pay equality audits in limited circumstances. However, we are still awaiting a government response and the suspicion is that these modest changes will be spun to sweeten the major attacks on workers rights.

Pension auto-enrolment was supposed to start this year, but the government has announced a delay for employers with fewer than 3,000 employees. The gradual increase in employer pension contributions is also to be delayed. These measures are aimed at creating a pensions saving culture for those workers excluded from schemes by employers who are happy to have the taxpayer subsidise their responsibilities. While at the same time the same bosses boost their own massive pensions.

I have commented earlier on changes to health and safety law. Barely a day goes by without a report of an industrial accident or illness, often with tragic consequences. Grayrigg and this week's cruise ship disaster should remind us that health and safety is probably the most important protection workers and their families have. We did not vote to die at work.

While some of the proposals are presented as simplifying the system, in reality they mostly have the aim of reducing workers rights, making it easier for unscrupulous employers to sack staff. As always it will be low paid workers who suffer most, primarily through charging for access to justice. The government's arguments about rising claims and cost simply don't stack up. If you strip out the multiple equal pay cases the number of ET applications are falling. Far from inhibiting new businesses the UK already has some of the weakest employment legislation in the world. A World Bank study confirmed that the UK is the third easiest place to start and run a company after Hong Kong and New Zealand.  The Chair of the Independent Tribunals council said the suggested ET changes would "bring little benefit to employers or to the tribunal system while having a disproportionate and chilling effect on employees."

Many will rightly see these attacks as a return to the Thatcher era. A key feature of that period was the increasing reliance on EU employment standards. There are a wide range of employment law proposals at various stages of the EU legislative process. They include revisions to the Working Time and Posted Workers Directives, pensions, migrant workers rights, pregnant workers, equal pay and carers leave. Given the current political balance in the EU it may be difficult to make progress on many of these. However, EU law may again be an important safeguard for British workers. 
There may also be unforeseen consequences. Cutting unfair dismissal rights may mean a switch to claims based on other rights that don't have a qualifying period. These claims are often more complex and time consuming for tribunals. An increase in cases to the civil courts is also a possibility. It could also lead to a change in approach from trade unions. If there is no effective legal redress then industrial action becomes the only alternative. Some of us can remember the days when disputes around unfair dismissal were much more common than today. Even in unorganised workplaces, the absence of lawful solutions can lead to other forms of protest. 

The government also fails to see the obvious economic consequences. Insecure workers do not take out mortgages or make larger purchases. This drives down demand exacerbating the already serious consequences austerity measures are having on growth. As Brendan Barber pointed out good employers have little to fear from tribunal claims; "if firms treated their staff fairly, few would ever find themselves taken to court." This is another consequence of the attack on workers rights. It creates a race to the bottom were the bad employers drag the good ones down to the sewer.

Underlying this issue is a debate on the sort of UK we want to live in. Do we want the UK to become a low wage, insecure place to work? Driving down living standards for the many, while  the rich and powerful exploit a compliant workforce. If that's Cameron's definition of 'fairness', he can keep it.