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However, although this questionnaire is being withdrawn, there is obviously nothing to stop potential claimants from putting questions to their employer to further a potential discrimination case.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

Privacy: one law for bankers, another for seven million trade union members

Victoria Phillips is head of employment rights at Thompsons Solicitors

The UnionHome Thompsons Solicitors Blog

 

I am not easily surprised by the double standards of this government, but even I was taken aback by its brazen hypocrisy a few days ago when it invoked ‘protection of personal privacy’ to oppose a European Union cap on bankers bonuses.

 

The government gets all protective about bankers having to disclose details to the EU of their vast rewards but when it comes to the privacy of more than seven million union members whose names, addresses and personal correspondence it wants powers to access they are not just less fussy, they don’t care.

 

Part 3 of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill gives the government’s Certification Officer – and potentially hundreds of his staff and contractors – scope to require unions to hand over membership records and private correspondence.

 

The government is over-riding the right to privacy in the European Convention on Human Rights for millions of union members – while at the same time invoking the very same right to defend a handful of bankers.

 

If we needed any more evidence of this being a government for the few and not the many, this could hardly make it clearer.

 

This harmless-sounding legislation on trade union ‘administration’ is being rushed through Parliament after a cursory consultation over the summer, riding roughshod over trade union concerns.

 

For years now, unions have had to submit annual membership returns to the government’s Certification Officer (CO).  It’s been open and transparent, giving union members the right to check the records and complain to the CO if something is wrong – and no one has since 2004.

 

Under this Bill, the government wants to intrude much further by:

  • Requiring unions with more than 10,000 members to appoint an Assurer from among ‘qualified independent persons’ as named or defined by the Government
  • Requiring unions to submit an annual ‘Membership Audit Certificate’ (prepared, in the case of those with more than 10,000 members,  by an Assurer)
  • Giving the Assurer the right to access membership records and require union officers to provide information.
  • Giving the CO and CO staff and CO inspectors and Assurers powers to require production of documents and to make copies of them, including individual membership records and private correspondence from ‘anyone who appears…to be in possession of them’ if there is ‘good reason to do so’.

 

If the bill goes through, literally hundreds of state personnel and contractors will have the power to access the personal information of more than seven million union members.

 

The TUC has said: “It is not the business of the State to know who is or who is not a trade union member, and where they live”.

 

But the government is invoking article 8(2) of the European Convention on Human Rights (ECHR) to over-ride data protection laws.

 

That article says the right to privacy can be limited only by ‘the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

 

By implication, the government is saying trade unions are a threat to all these things – and therefore it is okay to do what they propose.

 

The Bill has come from business secretary Vince Cable’s department, yet again displaying a shocking lack of liberalism from a Liberal Democrat minister – and a complete disregard for internationally recognised privacy and trade union rights.

 

I hope everyone who values the right to privacy and freedom of association will lobby their MPs to defeat this legislation.  For more information: Click here

 

 

Wales shows way on blacklisting – but it’s a different story from Westminster

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Weekly Thompsons Solicitors Blog

 

This week saw the governments in Westminster and Cardiff taking sharply contrasting positions on trade union rights.

 

As the Welsh Government announced measures to tackle blacklisting of trade unionists, Conservatives and Lib Dems in the House of Commons voted through measures that threaten the right to privacy of more than seven million union members.

 

The Welsh Government’s stance on blacklisting is in stark contrast to the coalition’s plans to give itself – and unspecified numbers of unelected government officials – unprecedented powers to require trade unions to hand over members’ personal details.

 

Part 3 of the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill, currently being rushed through Westminster, would mean the Certification Officer, his staff and appointees can require trade unions hand over individual membership records and personal correspondence. More than seven million people could be affected.

 

It’s a spiteful piece of anti-union red tape from a government that’s meant to be opposed to red tape.  And it’s a chilling intrusion on privacy with serious implications for freedom of association, which is a fundamental right in the UK and throughout the democratic world.

 

People join trade unions for all sorts of reasons but mostly for protection – trade unionised workplaces are recognised as safer workplaces for example – but it should be up to them and a private matter. As the TUC has put it: ‘it is not the business of the State to know who is or is not a trade union member, and where they live’.

 

The Welsh Government is tackling blacklisting by issuing guidance that, in bids for public sector contracts, companies that have denied employment opportunities because of trade union membership or activity should be excluded.

 

This is a breath of fresh air compared to the attitude of Tory and Lib Dem MPs in the House of Commons this week, who voted down Labour amendments to the Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill that would have limited or qualified government intrusion powers.

 

At a time when we know blacklisting is a reality, we should be looking at an enforcement authority and laws that makes blacklisting a criminal offence across the UK – but instead we have this unprecedented and radical intrusion into people’s lives with no evidence as to why it’s necessary.

 

Thompsons Solicitors is working with trade unions, MPs and civil liberties groups to defend the right to privacy of union members and freedom of association, in line with international law.

Read the Thompsons response to the Bill consultation here

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