Jonathan Gray, an employment lawyer acting for trade unions and their members, spoke to Solidarity about the government’s changes to workers’ rights legislation.
Since taking power, the Coalition government has been attacking workers’ rights and workers’ access to justice. The government justifies its actions on the grounds of reducing “red tape” and the regulatory “burden” (their words) on businesses. When balancing protecting workers and protecting profits, the emphasis appears to be heavily in favour of protecting profits at the expense of worker’s rights.
The key changes that have already taken place, or are coming, are:
• Employees employed from 6 April 2012 onwards will now need two years of continuous employment (rather than one year, as previously) before they have any right to take an employer to an Employment Tribunal for unfair dismissal. Low paid workers, many of whom are on short term or temporary contracts, already have limited employment protection and this further erodes the protection available to them and other workers.
• Judges in Employment Tribunal hearings are now allowed to sit alone when deciding unfair dismissal cases — previously an employee would have an automatic right for the case to be heard by an industrial jury consisting of a judge and two lay members (one from the union side and the other from the employer side). This created a degree of balance which is now at risk.
• Employment Tribunals have been given the power to require employees who are bringing claim to (a) make a payment of up to £1,000 as a deposit before they can proceed to a hearing and (b) order the employee who has brought a claim that was unsuccessful to pay legal costs of up to £20,000.
Legal costs orders could be made in the past in limited circumstances. That possibility has been increased significantly. It will clearly act as a deterrent to workers seeking to enforce their rights.
• The Equality Act (which consolidated discrimination law into one Act) increased the protection to employees in that it provided that employers’ duties to protect employees from harassment extended to third party harassment (e.g. from customers). However, the Con-Dems have announced that this extension is to be repealed. A female bar worker sexually harassed by a male customer on more than one occasion will no longer be able to require protection from their employer.
• In discrimination cases, there is an entitlement to require an employer to respond to discrimination questionnaires. This was extremely useful in helping to establish if an employer had been treating workers differently. However, the Con-Dems have announced that the discrimination questionnaire entitlement is to be repealed. This will make bringing discrimination claims even harder. It is very rare in discrimination cases to have a clear admission of guilt. The questionnaire process was a valuable tool to obtain supporting evidence.
• From 6 April 2013, the period during which employers are required to consult with their workforces about collective redundancies involving 100 or more employees is to be halved from 90 to 45 days. In mass redundancy situations involving a 100 of more employees, particularly where the redundancies affect different job types in different ways within the group, 45 days will not be sufficient time for the unions and/or employee representatives to have meaningful consultation on the issues with a view to saving jobs. This will allow employers to fast-track mass redundancies.
• From July 2013, it will be necessary for workers to pay a fee before they can bring an Employment Tribunal case. Since the mid 1960s, there has been a free access employment tribunal system to ensure that workers had a mechanism to protect their rights without regard to their means or financial circumstances. Under the new fee scheme, a worker bringing a claim for unfair dismissal could have to pay an initial issue fee of £200 and then a further fee of £1,000 if they want to have a hearing.
At a time when a worker has already lost their job and may not have found other work, the need to find such fees will clearly act as a massive disincentive to bring a claim and will be prohibitive for most. Wealthy employees will still of course have full access, as they will not find it difficult to find this level of fees. As a famous judge said ironically at the turn of the last century: “The law is open to all – just like the Ritz hotel”.
Employment Tribunal statistics for the year from 1 April 2011 have shown that in claims for unfair dismissal, only 21% of successful cases led to compensation being awarded. Where compensation is awarded, the average award is only £4,560. Essentially, a worker bringing an Employment Tribunal claim will now need to consider whether to gamble £1,200 after losing their job for the remote (1 in 5) chance of wining compensation which on average is only £4,560. Added to this is the risk the Tribunal could order legal costs, if the case is unsuccessful, of up to £20,000.
• Chancellor George Osborne has announced that he intends to allow employers to offer to buy off employees’ employment rights in exchange for issuing shares to them. Bearing in mind the obvious inequality in bargaining position at the time that an employer offers a job subject to the employee agreeing to give up their employment rights for shares, this proposal also creates the opportunity for tax avoidance by higher paid employees who could give up their statutory employment rights in return for shares worth up to £50,000 (untaxed – CGT free on sale) whilst still having the same or greater employment rights incorporated into their written contracts of employment.
• The government is consulting on removing service provision change protections under the Transfer of Undertakings Protection of Employment Regulations (TUPE). This change would result in employees outsourced, brought in house, or moved to a different contract being unable to rely upon TUPE to preserve their existing terms and conditions of employment. It may be that the motivation behind this is to make it easier for local councils to outsource direct council employees on lesser terms and conditions when councils look to cut their annual budgets.
• In a separate attack on the rights of injured workers, the Con-Dem government is seeking to reduce the protection available to workers under the Health and Safety at Work Act 1974. The Health and Safety at Work Act provides that employees can claim compensation from employers if they are injured due to breach of workplace health and safety regulations by their employer without necessarily needing to prove that the employer had been negligent. The Act simply followed established legal practice dating back to 1898.
• In a move that will put back the legal position by many years, the government is pushing through legislation (the Enterprise and Regulatory Reform Bill) which will remove the right of injured workers to claim compensation for injuries resulting from breaches by their employer of health and safety regulations — instead, compensation will only be paid if the employee can prove negligence by the employer. This will leave many injured workers uncompensated even though the employer is proved to have broken health and safety regulations.
• The government appears to be proceeding on the clearly mistaken belief that cutting what they regard as “red tape” and what the rest of us consider basic standards of health and safety and employment protection for workers will miraculously cause the economy to grow again — whilst at the same time, completely ignoring the effects of their continued austerity programme.
• On a separate front, the government announced in early 2012 that it intended to change the Criminal Injuries Compensation Scheme to exclude more people from being able to claim and reduce the awards of compensation. Shortly before the proposed changes, and in the light of continuing criticism by trade unions, victims’ groups and others, the government backed down at the last minute and agreed not to make the changes — despite the Deputy Justice Minister having defended the proposed changes in Parliament only a week earlier!
To resist and push back these reforms, unions need to facilitate more debate in mainstream media. They should also consider a challenge under the Human Rights regime to the potential restricting of access to justice in the Employment Tribunal system caused by the legislative changes, and consider a challenge to the European Court regarding the proposed changes to the Health and Safety at Work Act .
It is also critical to fight to get the Labour Party to make a clear commitment on these issues if it wins the next election. At present, Labour has not committed to reversing any of these legislative changes.
Positive demands for pro-worker legislation would include:
• Maintaining the collective consultation time periods as they currently are, if not extend them.
• Reinstatement of discrimination questionnaires.
• As a minimum, to reinstate the one year minimum period of employment to claim unfair dismissal. However, the extension of full rights from day one of employment should be the ultimate goal.
• Remove the need for fees in the Employment Tribunal system, which has been free to use by workers since the first Industrial Tribunals since the mid 1960s.
• Oppose changes to Health and Safety laws.