In the grip of a low pay epidemic

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Work Foundation recently published its final report on the prospects for workers earning less than £15,000 a year.

 

Readers of the study can only be appalled that low pay now affects a staggering 5.1 million employees (21 per cent of the UK workforce) and that over a quarter of these workers will remain stuck in low pay for over a decade.

 

When the National Minimum Wage (NMW) was brought-in in 1999, it was one of the most significant planks of Labour policy. But the current Tory-led regime has failed to give it the status it deserves. Serial offenders have been left to get away with NMW non-compliance and the government has chosen to severely under resource the teams who enforce it.

 

The scale of the UK’s low wage epidemic is a deliberate product of this government’s anti-worker agenda. The mantra that employment prospects are looking up appears shaky when you consider the detail. The reduction in unemployment has been fuelled by a rapid increase in the number of people identifying as “self-employed”, while many others have been forced into part-time and zero hours work where they had previously worked full-time.

 

Serious wage deflation means that increasing numbers are being pushed to take low-paid work that is near-impossible to survive on, with many workers having to begrudgingly seek the help of the state benefits system – not to mention food banks – to keep their families fed, clothed and housed.

 

The Work Foundation’s report makes worthwhile recommendations for how the UK can pursue a fairer wage distribution and begin the fight back against Conservative Party policy and the parochial interests of the big business lobby who control it.

 

One obvious step, the report suggests, would be for the government itself to set best practice by having its departments and local authorities aiming to become Living Wage employers. Unless the government gets its own house in order there is little hope of encouraging the private sector to do so.

 

Another simple move would be for the Low Pay Commission to increase the NMW at a faster rate than average earnings over the next few years. If the economy is really recovering then it is crucial that those at the bottom of the pay scale should be able to feel the effects not just those at the top.

 

Unions are leading the way to fight the low pay epidemic in the national interest. We must all continue to do so.

 

The full Work Foundation report can be read at http://www.theworkfoundation.com/DownloadPublication/Report/365_BottomTenMillionFinalPaper.pdf

 

Few Dads take Paternity Leave

Victoria Phillips is head of employment rights at Thompsons Solicitors

A new report has found that just ten per cent of new fathers currently take more than two weeks of paternity leave, just months before Shared Parental Leave comes into effect from next year.

 

The shared parental leave scheme will, for the first time, allow eligible mothers and their partners to take up to 52 weeks of leave in total, to be shared between them either in alternating blocks or taken together.

 

However, “Shared opportunity: Parental leave in UK business” found a number of cultural and financial differences explaining the low level of take up from Dads, and makes for sorry reading for anybody who believes in gender equality.

 

The report found that a father taking paternity leave was culturally less acceptable in many organisations. 63 per cent of employers were supportive of mothers taking up to a year’s maternity leave but even two weeks paternity leave was only supported by 58 per cent of employers.

 

Almost half of the employees surveyed and 58 per cent of managers said that parental leave was disruptive for their organisations. Three quarters of managers felt parental leave affected the efficiency and productivity of their teams and at managerial level just two per cent opted to take the leave they are currently entitled to.

 

The findings may be hardly surprising when it appears that fathers are paid significantly less on average by their employers when on leave. While 70 per cent of new mothers received full pay for between one and 38 weeks of maternity leave, just nine per cent of new fathers received full pay for longer than two weeks when on paternity leave.

 

This “paternity pay gap” not only creates practical financial barriers to the concept of shared parental leave, it also projects a negative cultural expectation (that women are the ones likely to take extended periods away from the workplace) and that has the potential to impact detrimentally on their career progression.

 

We are on the verge of welcome changes in legislation, but rights are only of use if there is an understanding that they are there to be used and using them has no negative implications for the user. Sadly it appears there remains an ingrained view in many organisations that childcare is for mothers and that reflects badly on ‘modern Britain’.

 

To access the Institute of Leadership and Management, please visit: https://www.i-l-m.com/~/media/ILM%20Website/Documents/research-reports/shared-leave/ilm-shared-parental-leave-report%20pdf.ashx

New ACAS guidance for those who experience discrimination

Victoria Phillips is shortlisted for this year’s UnionHome writer of the year

The Thompsons Solicitors blog for UnionHome

 

In what was disguised as another slashing of ‘red tape’ in the Enterprise and Regulatory Reform Act 2013, the government decided to do away with a vital questionnaire for jobseekers and employees who think they may have been discriminated against by an employer under the Equality Act 2010.

 

After 6 April, this convenient way of dealing with discrimination in the workplace will be no more.  That 83% of those consulted about the questionnaire opted in favour of keeping it clearly meant nothing to this government who are ideologically disposed to cutting protections for workers, regardless of their importance for employee well-being.

 

The current process allows workers to request information from their employer about their complaint on a standard questionnaire form, which can be sent to the employer any time before they lodge their tribunal claim or within 28 days after lodging it.

 

If the employer fails to answer the questions within eight weeks or replies in a way that the tribunal considers to be evasive, it can draw an inference of unlawful discrimination. 

 

However, although this questionnaire is being withdrawn, there is obviously nothing to stop potential claimants from putting questions to their employer to further a potential discrimination case.  In anticipation of the withdrawal of the questionnaire, ACAS has drawn up a simple six-step template to follow:

 

  1. the employee should set out their details and that of the person they want to answer their questions 
  2. the employee should set out the protected characteristic under the Equality Act (race, sexual orientation, religious beliefs etc.)  that they consider has been affected. 
  3. the employee should describe what happened to them 
  4. the employee should set out the type of discrimination they have experienced 
  5. the employee should say why they think it was unlawful 
  6. the employee should outline any further questions they would like to ask 

    Moreover, although tribunals will no longer have a statutory right to draw an adverse inference, there is nothing to stop them from doing so if the employer does not reply or is evasive in their answers.

     

    Potential claimants should, in any event, use the employer’s grievance procedure, or other internal dispute resolution mechanism before lodging their claim with a tribunal. If that doesn’t resolve the issue, ACAS provides a free “Early Conciliation” service which may avoid the need to make a claim.

     

    To read the ACAS guidance, go to: http://www.ACAS.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf

Zero power for workers on zero hours contracts

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors Union Home blog

 

Following an informal information gathering exercise last year, the government recently announced a consultation on zero hours contracts to investigate the extent of their use and abuse by unscrupulous employers.  Many union members will already know the answer.

 

Workers on zero hours contracts go without even the most basic employment rights. They are expected to be available as and when they are needed but without any guarantee of paid work. They can be sent home without warning and often receive no holiday or sick pay.  Even more shocking is the use of ‘exclusivity clauses’ which ban the employee from taking employment elsewhere -even when no work is available.

 

Employers take advantage of the fact that zero hours contracts are not properly defined in law so there is a serious lack of transparency around the terms and conditions under which workers are employed; conditions which place the balance of power overwhelmingly in favour of the employer.

 

And, it is worrying that the government doesn’t know how many people are currently employed on zero-hours contracts.Estimates vary wildly – it could be anything between 250,000 (Office of National Statistics) and 1 million (Chartered Institute of Personnel and Development).

 

As part of its consultation, the government is seeking views on the abuse of exclusivity clauses and on the various terms and conditions under which those on zero hours contracts are employed.  The consultation also includes proposals to introduce measures to avoid abuse and to provide guidance on the fair use of zero hours contracts.

 

To fight the cost of living crisis staring the UK in the face, it is vital that abuse from unscrupulous employers,who put profits ahead of the basic welfare of their workers is tackled head on. While we may be encouraged that this consultation has been opened, it is hard not to dismiss it as a way for the government to put an issue that requires immediate redress on the back burner.

 

Given this government’s record on tackling employment rights, we should be sceptical as to whether the consultation will lead to real action to tackle zero hours contracts once and for all.

 

To submit your view on the consultation (which closes on 13 March), click here:

Handling small-scale redundancies

Victoria Phillips is head of employment rights at Thompsons Solicitors

The regular Thompsons Solicitors blog

 

British workers are feeling less secure than at any time in the past 20 years.

 

Below-inflation pay cuts are creating a cost of living crisis whilst under-employment and more precarious working terms are becoming the norm for many. Redundancies or the threat of them are a weapon used too casually by employers looking to save money and increase profits in uncertain times, particularly in non-unionised workplaces.

 

This is why it is timely for Acas, the conciliation and arbitration service, to publish new guidance that gives employers advice on how to handle small-scale redundancies. However, it’s a given that no unscrupulous employer will make any effort to inform employees of their rights and the proper legal process, so the guide can also be used by employees to insist on that happening.

 

Despite this Government slashing the redundancy consultation periods, there are still minimums. Where an employer is proposing to make 20 or more employees redundant within 90 days, they must consult with their employees on the changes at least 30 days before the date of dismissal. The consultation period for more than 100 people is a minimum of 45 days.

 

However most redundancies number less than 20 workers which means there is no minimum consultation period, and in most private workplaces no union representation to guide them through.

 

‘Handling small-scale redundancies – a step-by-step guide’ is aimed particularly at small and medium sized businesses that are considering making fewer than 20 people redundant.

 

Acas rightly advises employers to first consider alternatives to redundancies such as offering flexible working, stopping the recruitment of new workers, retraining staff to facilitate new areas of growth, or reducing or ending overtime. If these are not openly considered and offered, workers might want to refer to the guide and ask their employer why.

 

However, if the alternatives have been looked at and rejected, Acas recommends a seven step plan:

1.           Brief managers to make sure they are prepared to effectively handle a testing redundancy situation

2.           Talk to staff – it is a legal requirement to consult with each affected staff member individually, not only those who might face redundancy

3.           Be careful in how staff are chosen for redundancy using clear criteria for which posts may have to go

4.           Talk about redundancy notice and pay – this can help reassure staff

5.           Consider notice period rights and what time off workers are allowed to take to look for other work

6.           Uphold a staff member’s right to appeal

7.           Think about the future of the business and make the best use of remaining staff

 

Good employers should already be aware of what is legally required and what is considered proper ethical behaviour. However, some employers seek to ignore the law or whinge that it is too complicated and weighted against them. Acas’ simple guide, while a good antidote to their excuses and useful information for workers and their representatives, is ultimately no replacement for union representation.

 

To access step one of the guide, click here

Government advice to interns fails to address the root cause of their exploitation

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors UnionHome blog

 

Internships have become a way for unscrupulous employers to undermine and evade the National Minimum Wage (NMW) and the government has recently published new guidance for interns with the stated aim of helping them to protect their right to fair pay.

 

A new video and posters attempt to explain to interns what their rights are in relation to NMW, where to go for more information and what action they can take if they feel they have been exploited.

 

Alongside the new guidance, HM Revenue and Customs (HMRC) – who are meant to enforce NMW on behalf of the government – will send out letters to 200 employers who have recently advertised internship opportunities and unpaid work to notify them that checks will be carried out to make sure that employers are remunerating interns in line with the law.

 

So far so positive but the government is still far from being able to guarantee the end of interns’ exploitation.

 

Recently Unite said it will be writing to HMRC to report that a third of the UK’s top 50 charity employers are using unpaid interns – despite the government’s previous attempts to enforce a code of conduct for the use of interns across all sectors.

 

Unite’s move follows its report in May, made with Intern Aware, Interns in the voluntary sector – time to end exploitation, which showed the extent to which charities are using ambiguities in NMW legislation to avoid paying their interns.

 

The sad fact is that, however much the government seeks to inform interns about their rights and encourage employers to implement best practice, the NMW regime is too easily ignored.

 

Many un-paid internships are already illegal. As the government’s new material states: ‘if the intern has a list of duties they have to fulfill and fixed times when they have to work, the intern is likely to be a worker and entitled to be paid’.

 

And yet despite the law many interns are doing a job of work and are carrying out the same duties as permanent employees in the same office – except without the pay they are legally entitled to or the likelihood of securing a paid role once the internship ends.

 

What interns – and anyone else in low paid work – really need is a National Minimum Wage regime that is both robust and properly enforced to make sure that wage exploitation by employers is made far more difficult.

 

Filtering “common sense” to benefit the employer

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors blog

 

David Cameron has stepped up his campaign against worker’s rights by asking for a “common sense filter” on EU ‘red tape’.

 

A business task force commissioned by the government and made up of only employer representatives has identified 30 priority areas where EU regulations are said to be a barrier to economic growth, from ‘excessively strict’ food labeling to health and safety assessments.

 

The report is predicated on the basis that anything that protects people, such as workers’ rights, data protection and even controls on clinical trials for new medicines is a costly ‘encumbrance’.

 

EU regulations on employment rights apparently cause ‘a huge headache’ for employers and the “common sense”. The solution? Attack the rights of working people.

 

The report suggests, amongst other things scrapping proposed protection for British workers sent to other EU countries, removing the rights of agency workers – an increasingly common feature of the employment market in rapidly privatising public services – to equal pay with non agency staff, and stopping measures that would make abuses of work experience by employers illegal.

 

Singled out for particular attack by the taskforce is the Working Time Directive (WTD) because of ‘problems’ caused by European Court rulings that have ‘expanded the original scope of the legislation’.  It’s a familiar refrain as it parrots the government’ line in its consultation on the issue in May 2011.

 

The report’s self justificatory line that employment and health and safety laws simply represent a burden to business and bring no benefit is familiar stuff from this government and its mates in business but marrying that rhetoric with “common sense” is dishonest as good employers are well aware.

 

Read the Labour & European Law Review on the Business Taskforce report “Cut EU red tape” – http://www.thompsonstradeunionlaw.co.uk/information-and-resources/lelr/weekly-342.htm

 

ENDS

FINANCIAL PENALTIES FOR EMPLOYERS AT TRIBUNALS: PROTECTING WORKERS OR TOPPING UP GOVERNMENT COFFERS?

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors blog

 

Last week the minister for employment relations, Jo Swinson, said on Twitter that section 16 of the Enterprise and Regulatory Reform Act 2013 will come in to force from April next year.

 

This gives employment tribunals the power to impose financial penalties of between £100 and £5,000 on employers who breach the rights of their employees.

 

While we have finally got the information, its announcement on social media was not welcomed.

 

Section 16 of the Act adds a new clause to the Employment Tribunal Act 1996 which gives tribunals the ability to impose a financial penalty on an employer where there has been a breach of employment rights and the tribunal considers that, in the circumstances, the employer’s behaviour has one or more aggravating features.

 

‘Aggravating feature’ has yet to be defined but it appears that tribunals can consider the employer’s ability to pay when deciding whether or not to impose a penalty. The reality is that there are many aspects of the procedure which mean the ‘teeth’ of this legislation will be blunted.

 

The penalty will be set at 50% of the value of compensation payable by the employer, but if the award is less than £200 the penalty will be capped at £100. If the award is more than £10,000 the penalty will be capped at £5,000.

 

Incredibly, if half the penalty is paid within 21 days it will be reduced by up to 50 per cent. Why should an employer get a discount for swift payment while the claimant receives nothing extra?

 

Even though the penalty is awarded against an employer because of their poor behaviour towards an employee, the fine is not an additional sum paid to the claimant, but instead goes into government coffers. What’s more, the penalty may be applied regardless of whether a financial award of compensation is made against the employer.

 

A government that has steadily eroded employment rights hasn’t changed its spots. This seems simply to be a tax on tribunals and, at best, a gentle (discounted) slap on the wrist for bosses who mistreat their staff.

 

To read Thompsons’ response to the Enterprise and Regulatory Reform Bill, click here  

 

Further tinkering removes tribunal fees safety net for almost everyone

Victoria Phillips is head of employment rights at Thompsons Solicitors

As of July this year, Employment Tribunals stopped being free to access. The Ministry of Justice claimed this was to save money for the tax-payer and clamp down on workers who chose to unnecessarily escalate workplace disputes to a tribunal.

 

No doubt aware of the backlash this move would generate, the government sugared the pill with a facility whereby vulnerable low-earners could receive a full or partial waiver of tribunal fees.

 

However, in a reminder of the government’s true colours, this week has seen new restrictions come into force which drastically weaken this essential safety net leaving the remissions scheme almost worthless and playing into the hands of unscrupulous employers who want to take advantage of workers.

 

Now individuals – or their partners – with savings or investments of just £3,000 will have to pay the full £1,200 fee, whether or not they are out of work or on a low wage. That’s £250 upfront and £950 due on the day of the tribunal.

 

Research commissioned by the TUC shows that just one in 20 workers over the age of 50 are now likely to be fully exempt from paying the full amount. And, with fewer than one in four workers over 50 likely to receive any kind of financial support, those sacked because of their age may end up paying the full amount as well. The analysis also shows that, even among households where someone is on the minimum wage, less that a quarter of workers will benefit from any support.

 

The change also means that disabled workers are more likely to be disadvantaged, with only one in nine exempt from paying the full £1,200.

 

TUC General Secretary Frances O’Grady has commented that the changes “could mean thousands of older workers having to raid their retirement savings if they want to seek justice against an employer that has mistreated them [and] make it easier for rogue bosses to get away with mistreating staff, not paying them properly and dodging the minimum wage.”

 

Read Thompsons’ response to the fees remission consultation at: http://www.thompsonstradeunionlaw.co.uk/information-and-resources/moj-fees-remissions-thompsons-response.htm

 

Click on the image to access the full Thompsons Labour and European Law Review

 

 

 

You’ve had zero hours, now try a sliver of time

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors Blog

 

You might think the outcry after a report revealed that more than a million people are on zero hours contracts would make government ministers think twice before bragging about other ruses to take advantage of desperation for work. But not this government – or, at least, not Lord Freud, the Minister for Welfare Reform.

 

As ever, nasty stuff has a euphemistic name – ‘slivers of time’ – the idea being to create a marketplace where workers bid against each other to see who can offer the lowest price to do very short, sub part-time, periods of work.

 

Some local authorities, including Tory-led Hammersmith and Fulham, have been using it for several years, and Tesco opened up slivers of time to its workforce in 2010.

 

The champion of this scheme, Lord Freud, is a man with no background in social policy and who is best known for leading the somewhat botched floatation of Eurotunnel.

 

He is responsible for spearheading government attacks on the Welfare State and is notorious for commenting that Scottish welfare claimants should get a job if they wanted an extra bedroom.

 

At a fringe session on welfare at the Conservative Party Conference, Freud described slivers of time as ‘a marketplace for short hours’ where an employer would say ‘right, we want three hours on Wednesday afternoon – what am I bid?’ That group would then say ‘I’ll do it for £10 an hour, £15 an hour… whatever’.

 

In other words, slivers is a Dutch auction for job seekers’ time, set up to encourage it to be sold as a commodity in a race-to-the-bottom. And, if people are forced to work at rates below the national minimum wage, such contracts could potentially be unlawful.

 

In his speech to the Conservative Party Conference, David Cameron announced that 16 to 25 year olds ‘Neets’ (Not in Education Employment or Training) who refuse to take up offers of education, work or training will have their benefits stopped.

 

But rather than conjuring up ideas for finding random hours of work to fill on shoddy terms, the government should concentrate on how best to place people into real jobs on a fair rate of pay.

 

Slivers of time may well have positive applications in limited circumstances if done on the worker’s own terms. But its integration into a benefits regime that operates on compulsion takes us back to the Victorian days and the fundamentally exploitative nature of workers having to tout for anything they were lucky enough to get.

 

Read the Labour & European Law Review on zero-hours contracts

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