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

TUC lodges complaint against abuse of ‘Swedish derogation’ contracts

Victoria Phillips is head of employment rights at Thompsons Solicitors

The ‘zero hours’ contract has a twin with a strange name. ‘Swedish derogation’ contracts are now increasingly being used by employers to avoid employing agency workers on the same pay as permanent staff.

 

The two types of contract are part of a common strategy of creating an army of second class workers – or to use the employers’ euphemism: a ‘flexible’ labour market.

 

The TUC says the tens of thousands of agency workers on these contracts are paid less than permanent staff – even though they are working in the same place and doing the same job.

 

It is calling for the contracts to be banned and has lodged a formal complaint with the European Commission against the UK government for failing to implement the EU Temporary and Agency Workers Directive properly.

 

Under the regulations implementing the directive, agency workers are entitled to the same pay and conditions as permanent staff doing the same job after 12 weeks.

 

However, the TUC says agencies are avoiding this by employing workers on Swedish derogation contracts that allow them not to pay the worker the same rate as long as they directly employ the individual and guarantee to pay them for at least four weeks when they are between assignments.

 

In Sweden, where these contracts originate, workers still receive equal pay once in post and 90 per cent of normal pay between assignments.

 

However, in the UK, workers have no equal pay rights and are paid either half as much as they received in their last assignment or minimum wage rates between assignments.

 

Although the directive said that countries must prevent the misuse of Swedish derogation contracts, the TUC says it has evidence that the UK government has failed to provide adequate protection.

 

Agency working in the UK has increased by 15 per cent since the recession, and around one in six agency workers is now on these contracts. They are used regularly in call centres, food production, logistics firms and parts of manufacturing.

 

It’s yet another sorry tale of employers being adept at by-passing European directives – and the Government conniving with them.

 

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

 

Responsible employers should follow the lead on holiday pay

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog

 

Recent news that John Lewis will be handing its 69,000 employees a one-off payment to backdate incorrect holiday pay should serve as an example to other employers to get their houses in order.

 

Following a review of its holiday pay policies, the John Lewis partnership is paying its staff an extra £40 million for holidays taken since 2006.

 

The review was triggered by developing case law on working time. It concluded that their calculations about what their employees should receive while on leave have been wrong by excluding additions such as premiums for working on Sundays or bank holidays.

 

The major judgment on the issue was a Thompsons case – BA v Williams. The Supreme Court ruled in 2012 that holiday pay of pilots should include allowances on top of their basic salary, which were included in their overall pay.

 

To date, most employers have failed to take heed of this case and are continuing to calculate payments for holiday leave using basic pay.

 

But, at a recent Birmingham Employment Tribunal, the judgment in another Thompsons case – Neal v Freightliner – re-emphasised that normal remuneration – including premiums - should be paid, based on European case law and Williams.

 

The John Lewis example should prompt other employers to address this issue. But if they don’t, the Williams and Neal cases mean they will inevitably lose if they are challenged at employment tribunals.

 

Trade unions can now rely on two recent and authoritative judgments when pressing for members to get their full holiday pay entitlements.

 

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

A long journey worth taking: Seafarers now have minimum global working rights that need to be enforced

Victoria Phillips is head of employment rights at Thompsons Solicitors

New minimum global standards for seafarers living and working conditions have come into effect this week – but the challenge now will be enforcing them.

 

The Maritime Labour Convention 2006 (MLC 2006) consolidates and updates more than 68 international labour standards in the maritime sector.

 

The UK ratified the International Labour Organization convention earlier this month after a lengthy consultation process involving a number of government departments, Nautilus International, the RMT union, the UK Chamber of Shipping, and others.

 

From this week, all commercially-operated ships over 500 tons that fly the flag of any of the 30 countries covered by the Convention will be required to carry the Maritime Labour Certificate and the Declaration of Maritime Labour Compliance.

 

Until now, seafarers on international voyages did not have the basic rights that apply in the UK, such as minimum age and payment of wages. The MLC 2006 covers every aspect of work and life at sea including onboard medical care, health and safety and accident prevention.

 

These new measures for seafarers are long overdue. But, as ever, the challenge will be how effectively to police the Convention to ensure that employers adhere to the new regulations at all times. It is not enough to just set the bar – you need to be able to enforce it. That means you need an accessible system and confidence that if you use it you will get a fair result.

 

All this comes at a time when government cuts such as those to the Maritime and Coast Guard Agency will inevitably make it harder to enforce new seafarer standards. When you add the real practical difficulty that the international nature of voyages means that employment abuses in the maritime industry can be more difficult to identify than in other sectors, enforcement is an even bigger issue than it might at first sight appear.

 

The MLC 2006 does not apply directly to ship-owners, ships or sea farers and relies on ratifying countries to enforce the standards through their national laws or other measures. Therefore the UK must ensure that it has measures in place which will enable it to adhere to the Convention.

 

Figures from the Maritime and Coast Guard Agency show that there are approximately 89,000 seafarers working on UK flagged ships and more than 24,100 UK nationals work as seafarers.

 

It has taken a long time to secure basic minimum of standards for seafarers globally, and this is a positive step. However Seafarers globally will need support to ensure their employment rights are enforced.

 

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

McDonald’s are pulling a fast one on zero hours

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog

 

The big news of the week is McDonald’s doesn’t seem to know how many staff they need from one day to the next.

 

You would think, after all these years of selling burgers in Britain, they would have pretty good systems for monitoring the appetites of their customers. But it seems they don’t trust themselves to get it more than 10% right.

 

That surely can be the only legitimate explanation for McDonalds having 90% of its staff on zero-hours contracts and being told from week to week if and when they will be needed.

 

But do they seriously believe that they need that degree of operational flexibility? Of course they don’t. The reason McDonald’s puts some 82,000 or so people on zero-hours contracts is because they want to keep them in a permanent state of insecurity, in fear of rocking the boat and not being given any paid work.

 

A survey of more than 1,000 employers published this week by the Chartered Institute of Personnel and Development found that more than one million workers are on zero-hours contracts – far more than the government’s official figure of 250,000.

 

Vince Cable, the business secretary, says he’s reviewing the problem and will decide in September whether or not to hold a formal consultation on specific proposals.

 

But it’s really not that complicated.  There is no excuse for major employers – most of them making huge profits – to have thousands of people on these shoddy terms.

 

It doesn’t take a genius to plan the number of staff you need. Few employers would need more than a small minority of casual staff to deal with peaks and troughs. Most of them are predictable – after all, we know Christmas comes every year.

 

If employers aren’t prepared to do the right thing, the government already has the power (so far unexercised) in section 23 of the Employment Relations Act 1999 to confer rights on individuals.

 

This should include the right to work for more than one employer and the right to turn down work without losing the contract.

 

The Institute of Directors claims a ban on zero-hours contracts would be ‘extremely damaging’ to the economy. Really? I can’t see McDonald’s turning its back on its burger-loving British customers – though maybe we should turn our back on them.

 

Read more about zero-hours contracts in this week’s LELR Weekly.

 

See news about the Unions21 Labour Party Conference event on Zero Hours here

Vince’s pledges to tackle blacklisting ring hollow

Victoria Phillips is head of employment rights at Thompsons Solicitors

Blacklisting of trade unionists by London’s Crossrail project is as unacceptable as Vince Cable declares. But his outrage and pledge to “bring the full force of the law” to bear on companies found to be operating such restrictive practices rings hollow when you consider how weak the law is in this area.

 

Regulations, which Labour finally implemented in 2010 after failing to do so when the Employment Relations Act 1999 became law, do not provide effective legal protection and remedies for workers.

 

They make it unlawful to make or use a blacklist to refuse employment or subject an employee to detriment, but this does not prohibit illegitimate use of a list which was originally compiled “lawfully” – perhaps for a different purpose.

 

We lack a system of effective complaint in terms of each potential category of abuse – from the supply of information which may be used to compile a blacklist, to the ultimate use of a blacklist by an employer.

 

And the regulations still require individuals to pursue claims, rather than allowing a trade union to do so on behalf of groups and members.

 

What makes blacklisting so objectionable is the publication of an association between an individual and trade union membership or activities. By requiring individuals to take a claim, this will simply be perpetuated.

 

In 2009, when the Labour government consulted on implementing s3 ERA 1999, we told the then business secretary Peter Mandelson that employers and consultants who blacklist trade unionists should face the full weight of the criminal law including the ultimate sanction of imprisonment.

 

Blacklisting is planned, covert and systematic. Civil law sanctions such as fines are wholly inadequate and send entirely the wrong message to potential law breakers.

 

We know from the Consulting Association case that referral to the Information Commissioner, as Cable is said to be doing with Crossrail, will achieve little. Without an appropriate enforcement authority, fully equipped with the necessary powers and resources, anti-union employers will continue to exploit the weaknesses in the laws to prevent trade unionists exercising their legitimate rights without fear of losing their livelihoods.

 

Read more about the blacklisting at Crossrail in this week’s LELR weekly.

An outrageous attack on the largest democratic movement in this country

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors Weekly Blog

 

The government’s targeting of trade unions by the Transparency of Lobbying, Non-Party Campaigning and Trades Union Administration Bill is, as Frances O’Grady of the TUC said at last weekend’s Tolpuddle Martyr’s Festival, an outrageous attack on the largest democratic movement in this country.

 

Listening to Norman Tebbit being interviewed by Peter Hennessey on the Radio Four programme Reflections, I was struck – not for the first time – by how David Cameron is seeking to go further than Tebbit and Thatcher for completely unformed and incoherent ideological reasons.

 

I don’t seek to excuse or support Tebbit’s anti-union sentiments and the pride with which he looks back on his industrial relations and trade union law reforms. But at least he put them in a hard, political context. Union leaders had, as he saw it, overthrown two government’s before Thatcher’s and he wasn’t going to allow that to happen again. His predecessor at employment, Jim Prior, had taken a conciliatory approach and everything Tebbit did was, he said, constructed around the belief that this wasn’t the right tactic.

 

By comparison, Cameron’s proposed reforms to the Trade Union and Labour Relations (Consolidation) Act 1992 are just vindictive.

 

Their purpose is to give “the general public” (as if trade union members are not members of the public) confidence that voting papers and other communications are reaching union members “so that they have the opportunity to participate, even if they choose not to exercise it”.

 

This is despite the fact that section 24(1) of the Act already requires unions to maintain a register of members’ names and addresses that is, so far as reasonably practicable, accurate and up-to-date.

 

The detail of the proposed reforms is complex – annual membership audits, new Certification Officer powers, enforcement orders, a requirement for unions with over 10,000 members to appoint an assurer, self-certification for smaller unions and exemption for new unions. It’s the very opposite of the Red Tape Challenge.

 

Oh what a laugh they must have had in Cabinet with that one.

 

At the most recent Unions21 steering committee (Tuesday), a new work stream on union influence on politics was initiated. Watch this space.

“Whistleblowing is seemingly the only workplace right they (think) they want to strengthen”

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors Weekly blog

 

Further tinkering with the whistleblowing framework, about the third time the coalition has done so in as many years, was announced last week. The BIS “call for evidence” launched last week is intended to identify whether there are any other aspects of the law governing whistleblowing which may not be protecting whistleblowers and is discouraging them from coming forward about wrongdoing.

 

This is not the “measure twice, cut once” approach to legislation that the government’s red tape challenge is based on. But that’s because ministers are pulling themselves in several directions over whistleblowing, which is seemingly the only workplace right they (think) they want to strengthen.

 

The call for evidence questions indicate they are looking for wider categories of disclosure qualifying for whistleblowing protection and different methods of making those disclosures that would entitle the whistleblower to protection.

 

There’s a suggestion that making the referral of whistleblowing claims to prescribed persons or bodies would become mandatory and that the definition of worker for the purposes of whistleblowing will be changed. This has already been done, as part of the provisions of the Enterprise and Regulatory Reform Act, to allow certain NHS contractual arrangements to fall within scope of the whistleblowing protections but, piecemeal as ever, the government wants to know if other groups of workers are excluded.

 

We’d welcome a broader definition of worker, both within the Public Interest Disclosure Act and in employment law generally. In all types of employment claims there are significant hurdles to overcome in order to demonstrate that a claimant is a worker and employers are able to rely on technical arguments to show they are not.

 

But the government is taking a far more narrow view of categories of workers than that. The last thing it wants is to make it easier to pursue unfair dismissal claims against employers.

 

There are also questions about the impact of blacklisting on whistleblowing (pity the government shows less concern about those blacklisted for trade union activities) and whether US-style financial incentives for whistleblowing would be appropriate.

 

It appears that ministers want to create high profile, celebrity cases. But the reality is that whistleblowing claims are usually decided by an employment tribunal and that ETs loathe them.

 

One practical step the government could take to ensure that only genuine cases are pursued is to take the cap off unfair dismissal compensation so that the higher paid do not just add a whistleblowing claim to try to secure adequate compensation for their losses.

 

But nothing the government is looking at which will deal with the difficultly of pursuing whistleblowing claims in the ET or tribunal attitudes to them. Wider categories of disclosure will not resolve the fact that whistleblowing claims usually have many elements and it is often not possible to demonstrate the employee suffered a detriment as a result of making a protected disclosure. Employers can usually show that disciplinary action or a dismissal was for another reason.

 

In employment law, unless it is possible to establish a direct cause between the act of whistleblowing and a subsequent detriment then the claim will fail.

 

And while health minister Jeremy Hunt continues to rail against gagging clauses in the NHS, many people whose employment relationship has come to an end have signed a compromise agreement that contains a confidentiality or non derogatory clause which prohibits disclosures. In practice the NHS has been very keen on these kinds of clauses even when they are legally uncertain.

 

It’s usually not clear whether this applies to post-termination disclosures and while case law has suggested that workers can rely on a protected disclosure made after leaving their employment to bring a whistleblowing claim, they usually fear being made to pay their severance money back.

 

Given that the government’s amendments to the public interest test and to good faith have already loaded the dice against employees by removing protection for those who blow the whistle about breaches of their own employment contract, it seems unlikely that this call for evidence will result in removing that fear for all workers.

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