Self-employed workers are headed towards the safety standards of Victorian England

Victoria Phillips is head of employment rights at Thompsons Solicitors

Health and Safety Executive statistics showing a fall in the number of people killed at work last year are of course welcome. Ironic then that the figures reveal that a third of immediate workplace deaths are among the self-employed when the government’s recently published draft Deregulation Bill will scrap health and safety rules for self-employed workers in all but high risk “prescribed sectors”.

 

Around 800,000 people will be exempted from health and safety regulations saving businesses, according to Ken Clarke and Oliver Letwin, the ministers promoting the Bill, £300,000 a year.

 

As the TUC pointed out in its response to the HSE stats, self-employed workers have a fatality rate almost three times higher than other workers – 1.1 deaths per 100,000 compared to 0.4. Exempting them from the regulations, even those in what are perceived to be low risk workplaces, to save businesses a paltry £300,000 demonstrates that it is an entirely ideological move.

 

The “war” that David Cameron says he’s waging against “the excessive health and safety culture that has become an albatross around the neck of British businesses” prevents any consideration of the consequences, unintended or otherwise, of exempting sections of the workforce.

 

Quite apart from the difficulty with defining what is a prescribed sector – many self employed people do work where they put themselves at risk which is not in the HSE’s proposed list – removing protection will inevitably lead to rogue employers wrongly describing  workers as self-employed in order to avoid their legal responsibilities.

 

The Deregulation Bill represents a further assault on already watered down workplace health and safety rules and on the ability of injured people to enforce their rights. We now know that section 69 of the Enterprise and Regulatory Reform Act, which amends section 47 of the Health and Safety at Work Act 1974, removing the ability of workers to rely on an employer’s breach of the regulations as evidence of negligence in any claim for compensation, comes into force on 1 October.

 

We’ve always said that without the ability to enforce regulations in the civil courts there is a risk of a return to the safety standards of Victorian England.

 

And that’s exactly where the self-employed, or the so-called self-employed, are now headed.

 

For more on the HSE’s fatal injury stats go to this week’s LELR.

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Employers should be careful what they wish for

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Weekly Thompsons Solicitors blog

 

We report in this week’s LELR new research which shows that claimants at the Employment Appeals Tribunal (EAT) have a better chance of winning their appeal if it is heard by a judge sitting alone.

 

This builds on earlier work by the same authors at the universities of Sheffield andLiverpoolabout the perceived value of lay members at the employment tribunal (ET) and EAT. Their findings indicated that although there remained good support for lay members among EAT judges, they valued their input rather less than their lay colleagues did.

 

It is a genuine surprise that the main value of EAT lay members is apparently to employer appellants. It should be equally so to ministers who have changed the law to allow judges to sit alone in the EAT unless otherwise directed and employment judges to sit alone in an ET to hear unfair dismissal cases, again unless a judge orders otherwise.

 

This was primarily a money-saving exercise, with an underlying political motivation. As usual it was a decision made by ministers after lobbying by employers – mostly the British Chambers of Commerce – who claimed, without evidence, that lay members were unnecessary in the tribunal system (no doubt assuming that lay members favour employees).

 

Ironic then that the consequences could be that employers will lose more cases.

 

Set against the backdrop of the government’s sustained and substantial erosion of workplace rights, might this be a glimpse of judicial checks and balances on an overbearing executive?

 

With her background as Senior Industrial Relations Officer at the Royal College of Midwives and Assistant General Secretary of the Association of First Division Civil Servants, Professor Susan Corby, who carried out the research, is no doubt exploring this very question.

 

Meanwhile, as we say in LELR, it will be interesting to see whether allowing employment judges to sit alone in some ETs will backfire on the government since the ET decides 25 times more cases than the EAT does. The message for the employer lobby is, once again, be careful what you wish for.

 

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Distorted reality and the muddle of multiple fees

Victoria Phillips is head of employment rights at Thompsons Solicitors

The significant increase in the number of employment tribunal claims in the first few months of this year, as revealed by the Tribunal Service’s quarterly statistics published last week, will no doubt provide the government with further justification for making it more difficult to bring claims.

 

Overall, the number of single ET claims was down by 10 per cent. But the headline figure, as we report in this week’s LELR, is that Working Time Directive claims doubled over the period. Of course they haven’t really. They are mainly large groups of existing claims and although the Tribunal Service does attempt to explain the warping influence they have – “the distribution for all ET cases is heavily influenced by the age of multiple cases (which can be stayed or await decisions from higher courts)” – it overlooks the fact that because of tribunal rules they have to be re-lodged quarterly.

 

This requirement creates the impression that the number of new claims are increasing significantly when in fact there is no increase. It is an issue that could easily have been addressed by the government in its employment tribunal reforms – we pointed it out in our original response, in 2011, to the BIS consultation Resolving Workplace Disputes consultation.

 

In fact  employment judges can, with the agreement of the parties, direct that such claims do not have to be continually re-submitted. This has been done this year in one of our large holiday pay cases.

 

But this was unusual. The fact is that tribunals don’t want to deal with these claims so won’t make it easier to run them. Having to fork out fees every three months is the strongest deterrent ever.

 

How the fees will be applied in practice to multiple claims remains a muddle. It’s not clear whether tribunals will require fees to be paid for every individual claimant in a potentially multiple claim each time they are issued (or re-issued), only to pay them back when the claim is decided by the tribunal to be a multiple. If that is the case, why levy the fee in the first place?

 

Whatever is decided – and if it isn’t decided before the 29 July implementation date there will be chaos – we are looking at fees running into eye-watering sums. And given the government’s position on refunds, provided in its response to the consultation, it’s unlikely there will be refunds for individuals who pay a fee even though the claim is confirmed as a multiple.

 

BIS reckons that the prospect of paying a fee rather than the prospect of getting a refund will provide an incentive to both parties to settle a claim. For hard working people denied their rights at work, unless they are in a trade union the only incentive that the prospect of paying a fee will provide is to put up with the treatment they receive, or to throw themselves at the mercy of the jobs market.

 

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Zero hours contracts and Vince Cable’s “informal” review

Victoria Phillips is head of employment rights at Thompsons Solicitors

Labour’s 1997 manifesto promised to deal with the issue of zero hours contracts. But in government Labour was persuaded that it needed to “retain the flexibility that those contracts offer businesses”. The national minimum wage and working time directive were deemed as providing enough protection from abuse.

 

That was then. The economy was growing. But the recent dramatic increase in the use of zero hours contracts, which do not specify the number of hours the employee is required to work, represents the unacceptable face of our flexible labour market in a time of recession.

 

They are the ultimate in the government’s obsession with ridding businesses of burdens, allowing employers to avoid all manner of employment rights obligations to their workforce. They can, for example, get around the agency workers regulations by setting up directly employed banks of workers on zero hours contracts. Little wonder then that, according to the Financial Times, there has been a 24 per cent leap in the number of zero hours contracts used in NHS hospitals in the last two years.

 

Surprising then that Vince Cable has announced an “informal” review of the use of such contracts (see this week’s LELR) when they provide exactly the sort of opportunity for employers to exploit vulnerable workers that David Cameron and George Osborne appear to have been trying to engineer through the myriad of employment law reforms they’ve forced through.

 

Though we know from Cable’s “brave” blocking of the Beecroft report that having him on side is about as much use as a handbrake on a canoe. After all, the Tory-donor’s no fault dismissals proposal, described by Cable as “the wrong approach”, has simply been rebranded.

 

Having said that, we know how much the government loves to make policy on the basis of anecdote, usually tall tales from employers and insurance companies. Cable says there’s anecdotal evidence of abuse of zero hours contracts by certain employers. That should be evidence enough to take the action the TUC calls for and regulate their use.

 

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A rare piece of good news for union rights

Victoria Phillips is head of employment rights at Thompsons Solicitors

We report what looks to be a rare piece of good news for union rights in this week’s LELR Weekly. The Employment Appeal Tribunal has ruled that where an employer intends making 20 or more employees redundant, the duty to consult collectively applies irrespective of how many redundancies there are in individual workplaces.

 

It’s always been a bit unclear what constitutes an establishment for collective bargaining purposes, but the EAT decision in Usdaw and ors v WV Realisation 1 Ltd appears to mean that doesn’t matter any more.

 

The case involved employees of the much-missed Woolworths and also those of the clothing retailer Ethel Austin, both of which went bust in 2008 with the loss of thousands of jobs.

 

Management consulted in all but the stores that employed fewer than 20 staff, on the basis that the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) states that the 20 or more employees must be at “one establishment” in order for the duty to apply.

 

But this has always been inconsistent with the European Union Directive that gave rise to TULCRA and which only required there to be 20 or more redundancies at “the establishments in question”.

 

So the EAT has ruled that the duty applies where an employer proposes to make 20 or more employees redundant, whether or not they are in the same workplaces.

 

Inevitably, employers’ lawyers are in a tizzy about the financial implications for their paymasters. Although the judgment has not yet been published, they are interpreting it as having a major effect on collective redundancy law and that  it will be a lot more expensive for employers to get rid of large numbers of workers if they have to go on employing them all until the statutory minimum consultation period (now reduced to 45 days for 100 plus redundancies and 30 for 20 to 99) is over. They are already dreaming up ways of getting around this.

 

And no doubt they will go running to their friends in the Ministry, pleading to be freed from the tyranny of EU legislation which has imposed yet another burdensome requirement to do the right thing before booting unwanted workers out of the door.

All over the place on whistleblowing

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors Blog

 

We now know that Section 17 of the Enterprise and Regulatory Reform Act, which covers whistleblowing, comes into force on 25 June 2013. It restricts qualifying disclosures to those made “in the public interest” and which are “reasonable in the circumstances”.

 

So no matter how much the actions of an employer in breaching a worker’s contract may reflect on it as a public organisation, such a disclosure is unlikely to satisfy a public interest test.  Being denied your rightful holiday pay is, apparently, a personal, not a public matter.

 

As I’ve written before, the government is all over the place on whistleblowing. It uses ERRA to further restrict protection for whistleblowers while simultaneously taking the credit for banning gagging clauses in the NHS which stop staff from speaking out about patient safety or care (although any agreement which prevents a worker making a protected disclosure was already void under the Employment Rights Act 1996).

 

Ministers have also promised a call for evidence to establish whether the whistleblowing legislation, including its scope, should be reviewed.

 

Now the charity Public Concern at Work has set up a commission with a view to influencing the government on a number of issues, including broadening the definition of a protected worker and adding trade unions to the list of persons to whom a protected disclosure can be made.

 

Its consultation, which ends on 21 June, seeks views on attitudes to whistleblowing among individuals, organisations and wider society, whether law and policy is adequate and effective, how whistleblowing can be incentivised, whether regulators should be doing more and if employment tribunals need more powers to protect whistleblowers.

 

Thompsons will certainly have something to say about the way tribunals treat whistleblowers. Put bluntly, they loathe such claims. And given the sort of claims they tend to see are those that that section 17 will knock on the head, it is difficult to imagine this government giving ETs greater powers to help claimants.

 

See this week’s LELR for more details about ERRA implementation dates.

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Mesothelioma Bill – not the act of benevolence it is portrayed as

Victoria Phillips is head of employment rights at Thompsons Solicitors

I’m writing this from the ASLEF annual conference, a union whose members are all too familiar with the devastating effects of asbestos exposure, as well as of other industrial diseases.

 

In the main, members who have become ill, and the many who have tragically died, have been able to claim compensation from the former rail industry employers who exposed them. Even those employers which no longer exist can be traced, more often than not back to British Rail. This means that historic employer liability insurance policies will usually be available and a claim against them can be made.

 

But thousands of industrial disease sufferers negligently exposed in the course of their work have been unable to trace their employers’ liability insurers and so are unable to bring a claim

 

Now the government has launched the Mesothelioma Bill, which had its second reading in parliament this week. It establishes a scheme of last resort for untraced employers’ liability insurance claims and has given the coalition a fair few positive news stories.

 

But it’s not the act of benevolence it is portrayed as. It’s certainly not the proposed scheme which the last Labour government consulted on, which would have created an insurance fund of last resort to compensate all industrial disease victims where the employer has gone out of business and their liability insurer can’t be traced.

 

It’s unlikely the scheme will pay more than 70% of the average compensation claimants would have got if they could trace their former employer’s liability insurance. And it will only compensate mesothelioma claims, but only then the ones where diagnosis was on or after 25 July 2012 – an arbitrary cut off date based on when the coalition finally got round to announcing the outcome of the consultation which had ended the day before the 2010 general election.

 

So aside from the thousands of people who have been deprived of compensation over the years due to the insurance industry’s incompetence in losing or destroying the policies it sold for decades in a compulsory market, hundreds more will lose out due to the government’s delay of over two years in announcing its intentions.

 

A delay no doubt caused by ministers’ cuddling their insurance industry buddies until the latter were completely reassured that the scheme would not dent their vast profits.

 

There are lots of other holes in the scheme. To read more see this week’s LELR weekly.

 

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The Inconvenient Truth on Health and Safety Regulations

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors Weekly Blog

 

Another consultation lands. The Health and Safety Executive is proposing a revised Approved Code of Practice (ACoP) on the workplace health and safety regulations.

 

It’s a mild one by the standards we have become used to from this government. Another emanation from the Löfstedt review of health and safety, it implements the recommendation that the HSE should review all its ACoPs.

 

We will be studying the detail before firmly concluding that the proposed changes are of little concern. But in general they are updates of various aspects to reflect amendments in the Workplace (Health, Safety and Welfare) Regulations 1992 themselves, including the deletion of out of date duties and responsibilities.

 

Ironically, whereas the ministerial motivation for commissioning the Löfstedt review was the now well-worn path of reducing burdens on business, health and safety ACoPs are not obligatory for businesses to follow.

 

If they do however, they can be reasonably sure that they are complying with legal requirements. And if they don’t, and an accident happens, a court may take a dim view. So as burdens go, the ACoP is more of a help than an hindrance. It’s certainly not proactive regulation.

 

Yet the aim of the consultation is “to establish if the changes make it easier for employers to understand and meet their obligations”.

 

The Löfstedt review, and Lord Young’s before that, found little evidence that employers don’t really understand their obligations. And the burden on business was more perceived than real.

 

That’s an inconvenient truth. No amount of re-drafting of the regulations and codes will satisfy those in the business lobby and in government with a seemingly pathological hatred for health and safety regulations.

 

Every time we secure compensation for someone injured in a workplace accident, it’s a cost that could have been avoided if the employer had observed some simple rules and guidance.

 

At a time when the HSE is operating under swingeing budget cuts do we really need another consultation based on anecdotal evidence that life must be made easier for employers, when what is needed is increased inspections and prosecutions and to hammer home the truth that safe workplaces are more successful businesses?

 

And let’s not forget that this government is making it increasingly difficult for accident victims to be properly compensated by their employer’s insurer. Ironically, for a government that wants to minimise state intervention, this means that the state is likely to have pick up the tab for an employer’s negligence through welfare claims.

 

To read more about the consultation see this week’s LELR.

 

 

The Queen’s Speech and the Court Jesters’ Response

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly UnionHome Thompsons Solicitors Blog

 

Employers’ body the Institute of Directors accused the government of a “poverty of ambition” in its response to this week’s Queen’s Speech. It complained that the new legislative programme “does little to cut back red tape for employers and nothing to tackle the problem of ‘gold-plated’ EU regulation”.

 

Aside from the fact that one of the most vicious pieces of legislation – the Enterprise and Regulatory Reform Act – has just received royal assent, a swathe of further employment law reforms are still in process.

 

So if working people appear to have been given a bit of a breather from further dismantling of their rights at work, it is not, I fear, for lack of government ambition.

 

The IoD is of course miffed that its bonkers “Beyond Beecroft” Bill to bring in no-fault dismissals didn’t make it onto the legislative agenda. [see this week’s LELR weekly]

 

Nor did its “Too Big to Strike” and “Midas” Bills – the former requiring at least 50% of union members to back industrial action and the latter restricting implementation of EU directives into UK law to the minimum required.

 

But if the bosses body didn’t think it had the wind behind it, it wouldn’t be persisting in its efforts to further restrict trade union rights and to rob workers of the little job security they still have.

 

A curious theme emerged from the comments made by IoD director general Simon Walker. Marital breakdown.

 

Unions have, he claims, become divorced from their original purpose, no longer representing workers from specific industries and able to cause disruption beyond the site of the original dispute.

 

Compensated no-fault dismissals are, he thinks, “like a divorce” – the relationship isn’t working and there is no point in going on or even going to court.

 

Given that a key part of the original purpose of trade unions was collective action in the absence of other influence over injustice in working life, Walker seems to be arguing against himself.

 

And his no-fault dismissals analogy only works if it is assumed that marriages are built on the same master and servant relationship as the employment one is. How cynical.

 

Walker’s “super unions” line – he wants the Competition Commission to investigate union mergers – makes no more sense. Interviewed on the Today programme, he attacked public sector super unions for being too strong, but praised private sector ones for being constructive and helping to keep factories open, citing specifically the unions at Ellesmere Port. It was early in the morning, perhaps I missed something, but aren’t those the exact same super unions that organise in the public sector?

 

A colleague told me of a strange lunch she was “treated” to in the IoD’s swanky brasserie at its Mayfair headquarters. The brasserie was used as a set for the Batman film the Dark Knight, in which the Joker is bent on turning Gotham on itself.

 

Time to return these clowns and their lunatic ideas back to Arkham Asylum.

Access denied – Fees for tribunals consultation opens

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors weekly blog

 

Fees for pursuing employment tribunals are expected to come in at the end of July, though a letter to stakeholders from the Courts and Tribunals Services is vague about the date and whether the systems will be ready.

 

In fact, now that the Enterprise and Regulatory Reform Act has passed into law, there’s a long list of employment law changes that the government has yet to give clear implementation dates for [see this week’s LELR weekly].

 

A consultation on how the fees remission system will work in practice was expected last autumn but has only recently opened. It closes on 16 May.

 

The government’s stated aim is that through fees it will achieve 100% recovery of the costs of running the system. Given that targets below full cost recovery have already been agreed with the Treasury, I wonder what the point of consultation on fees remission is?

 

Not that many claimants will qualify under the government’s proposals anyway.

 

If an applicant has too much “disposable capital” there will be no remission and no need to consider income levels. Disposable capital includes such things as jointly held capital, ISAs, savings and redundancy payments. The test has been set to “prevent fee remissions being paid to wealthy individuals”.

 

An individual or a couple with savings of as little as £3,000 will be expected to pay up to a third on fees. This rises to a half for those with £8,000 put away for leaner times. Nothing is said about the practical problems of liquidating capital assets within the three-month time limit for lodging a claim.

 

An applicant who passes the disposable capital test is then subject to an income test, which is now based on gross monthly, not annual income. No explanation is given for this, nor for the fact that the income threshold is being slashed at the same time.

 

A single person’s lower threshold remains at about £13,000, but a couple’s threshold drops from £18,000 to £15,000 – a mere £2,000 above that of a single person. The minimum wage for one person working 40 hours a week is just under £13,000. So is the majority of the population “wealthy” on this analysis?

 

A partner’s income is taken into account on the basis that “both the applicant and their partner gain financially or otherwise from the use of a court or tribunal”. Income levels must be proved by showing their last three months bank statements.

 

No account is taken of the fact that those claiming unfair dismissal or unlawful deduction from wages will no longer be in receipt of the income those statements show.

 

And if you want to retrospectively claim a remission you must do so within two months – so there’s not much chance to produce three months of post-dismissal bank statements.

 

These proposals have nothing to do with making the wealthy pay, or saving the taxpayer money. As we have come to expect from this government, the bar to qualify for remissions is being set so deliberately high that it will simply deter people pursuing legitimate employment tribunal claims, denying access to justice to those who need it most.

 

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