Lords’ collapse makes a dismal week for rights at work

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors Weekly Blog

 

It’s been a dismal week for health and safety and rights at work.

 

On Monday the House of Lords voted to change the law which makes employers automatically liable for breaches of health and safety regulations, meaning an  injured worker cannot rely on that breach as evidence of negligence in any claim for compensation [see this week’s LELR for more details and Thompsons’ response].

 

And on Wednesday peers accepted the government’s assurances on its deeply flawed shares for rights scheme.

 

I had been following both amendments – the Enterprise and Regulatory Reform and Growth and Infrastructure Bills – as they pinged and ponged between the chambers. It was impossible not to have admiration for the Lords’ determination to see them off – perhaps constitutional reform wasn’t so urgent.

 

But the law in place since 1898 to protect workers, and which went on to be enshrined in the Factories Acts, was  wiped out at 11.30pm because there were just too few peers left to vote the government’s amendment down.

 

The calling of last trains, bed and cocoa overcame the need to prevent workplace health and safety returning to the standards of Victorian England.

 

And then the ever-strengthening cross-party and cross-bench opposition in the Lords to Osborne’s ill-conceived and offensive plan to deny fundamental employment rights to certain workers melted away with a number of concessions, including on the need for individuals to receive independent legal advice.

 

So I am again firmly behind modernising our constitution.

 

The last ditch changes to shares for rights were in addition to earlier protections dragged out of ministers by MPs and Lords, including  for jobseekers and for others who refuse the employee-shareholder status.

 

But the scheme remains open to abuse by employers determined to try to get something for nothing. It does not herald a great advance in share-holding democracy, whatever is claimed from the rostrums at this year’s Tory and Lib Dem party conferences.

This business burden obsessed government

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog

 

Although the government’s proposed changes to the TUPE regulations will benefit employers and employers alone, there’s little evidence that they actually want them.

 

At a recent meeting of the influential Westminster Policy Forum, a number of representatives from City law firms – employers’ lawyers – said there was no appetite among bosses for the reforms.

 

And for good reason. Employers appreciate the certainty that the 2006 amendments relating to service provision changes (SPCs) – which happen when work is outsourced, taken back in house, or when the contractor providing the work changes – afford.

 

Certainly, no clamour for change emerged from the BIS call for evidence on the issue last year. The majority of respondents wanted to retain SPCs.

 

Our response to the TUPE regulations consultation, reported in this week’s LELR points out that until 2007 there was a steady stream of appeals to the Court of Appeal, and even to the Court of Justice, dealing with the fundamental issues relating to whether there had been a transfer under the 1981 version of TUPE.

 

But the introduction of SPCs in 2006 changed all that. There have been a handful of appeals to the employment appeal tribunal, but the existence of SPCs has greatly reduced the scope for dispute as to whether TUPE applies.

 

Inevitably, that’s a problem for this business burden obsessed government. As with its resolve to remove strict liability from health and safety laws because they provide certainty over an employer’s responsibility for a workplace accident caused by a breach of the regulations, it is determined to free up employers to try to circumvent the TUPE rules.

 

That doing so will mean more litigation and cost for employers seems not to have occurred to ministers, though it has to businesses – hence their support for the status quo.

 

Appallingly, the government’s justification is that, anecdotally, employers have been seeking legal advice on how to avoid TUPE or at least mitigate its effects. There’s no evidence this is widespread, and the comments of the City boys this week would imply it isn’t.

 

There will always be employers who try to get around the rules. It’s what keeps union reps and union lawyers so busy. But it doesn’t mean the rules are wrong, anti-competitive, damaging to the economy or a deterrent to employing people.

 

Neither does it mean that businesses who want to be free not to respect workers’ rights are entrepreneurs while everyone else is in hock to employment lawyers, as was implied by business minister Michael Fallon during last Tuesday’s Commons debates on the equally illogical shares for rights scheme.

TUPE and pensions, a brilliantly baffling combination

Victoria Phillips is head of employment rights at Thompsons Solicitors

Ministers have hit on a new way of slipping attacks on working people past us. Make the consultations so confusing that not even us lawyers (I am not being ironic) can be sure what they mean.

 

A recent meeting of colleagues fell momentarily silent when one asked if anyone shared his reading of a DWP consultation about amending the TUPE pension protection regulations.

 

TUPE and pensions, a brilliantly baffling combination. So when a DWP press release claims it simply wants to clarify the 2005 regulations to reflect the original intention of enabling the member to choose their rate of contribution, it’s tempting to accept it’s as innocuous as that.

 

But my colleague was right to read the proposals differently. The reality is the proposals will remove significant rights from employees in occupational pension schemes who transfer under TUPE to another employer.

 

The government appears to be trying to over-ride primary legislation that obliges the new employer to make contributions to the money purchase scheme (MPS) of a transferring employee.

 

We’ve been cautiously generous in our response to the consultation, which is reported in this week’s LELR. We ask if the government really intended the amendment to the pension protection rules to enable transferee employers to not pay into a MPS if the transferor was, for example, on a pension holiday at the time of the transfer.

 

We “doubt” if the amendment was meant to allow the new employer to say to an employee that because at the time of the transfer they didn’t have enough accrued service to join the MPS, they can never join the MPS.

 

We’d like to think it’s all a mistake, a drafting error that the DWP will correct by withdrawing the amendment. If it doesn’t it will confirm our reading, and that the government is again reducing workers’ rights under the guise of endowing them.

 

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

Is the Government determined to ride roughshod over workers’ rights, or just plain stupid?

Victoria Phillips is head of employment rights at Thompsons Solicitors

If the Department of Work and Pensions can’t get it right when shedding staff, then no wonder the government is making it easier to sack workers. It claims that employment laws are a burden on business and that employers are scared to take people on for fear of facing an employment tribunal should they later want to get rid. But the case of the Public and Commercial Service union members who last week won their right to redundancy payments should tell ministers, both as policy makers and employers, that simply applying plain common sense should keep them out of the courts.

 

Employment legislation exists to protect employers as well as employees. Regulations are not, on the whole, difficult to understand. Get it right, or just admit when you’ve got it wrong, and you won’t have to pay significant lawyers’ costs for the pleasure of having an employment tribunal judge explaining why you got it wrong.

 

The DWP’s refusal to pay redundancy payments to Jobcentre Plus workers whose fixed term contracts had ended was always difficult to fathom. Its lawyers argued throughout that the JCP workers were dismissed because their fixed term contracts had not been renewed, not because it was a redundancy situation. Yet the law is clear: if an employer decides it needs fewer employees of a particular kind to carry out work, the reason for the dismissal is redundancy.

 

As the employment tribunal judge concluded, there were “no distinguishing factors” to disapply the decision of the Court of Appeal in a similar case involving a lecturer whose fixed term contract was not renewed.

 

In that case (known as Lee), the appeal court ruled that the decision of the college not to renew the claimant’s contract because it had less need for lecturers was a redundancy situation.  Just because it was known that the contract would not be renewed did not alter that.

 

And so the same was always, in our view, going to apply in the JCP cases. In 2010, as a direct result of coalition cuts, there was a freeze on civil service recruitment and no extension of fixed term contracts without ministerial permission. Some limited extensions were granted over the following months, but the need to reduce headcount remained and both the lead claimants in the case – Ms Fanis and Ms Ricciardi -  were eventually dismissed when their contracts were not renewed.

 

Thousands of other fixed term employees suffered the same fate in order that the DWP could meet head count reduction targets set by ministers. To argue that this was not a redundancy situation showed either a determination to ride roughshod over fixed term workers’ rights, or was just plain stupid.

 

Read more about the PCS fixed term contract case in LELR weekly

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

Scapegoating workers is not the economic medicine the economy needs

Victoria Phillips is head of employment rights at Thompsons Solicitors

Last week the government published another self-congratulatory report on the red-tape challenge – a progress report on its employment law reforms.

 

Two passages in Jo Swinson’s foreword stand out:

 

“Our reforms support better relationships between workers and employers. They are aimed at making evolutionary improvements to the labour market so it retains a flexibility and dynamism that benefits individuals, employers and the economy.”

 

And:

 

“There is a range of employment laws that seek to make the process of taking people on fair. The Government continues to review these regulations to ensure they do not unreasonably burden employers or disincentivise them from hiring people, ensuring the labour market remains flexible.”

 

There is no trace of irony in either statement.

 

How a wholesale dismantling of employment rights, collective redundancy rules, equality laws and health and safety regulations are evolutionary improvements to the labour market only Jo Swinson may be able to explain.

 

But perhaps I’m missing something.

 

After all, the reforms aren’t yet all in place. In fact the timetable for some of them has changed, as this week’s LELR reports. The new employment tribunal rules, which are intended to make them easier to understand and which give employment judges new powers to strike out claims, will be with us in the summer rather than on 1 April in order to coincide with the introduction of ET fees.

 

So perhaps manufacturing output will take off when these rules come in. Or when it costs so much to lodge a claim that thousands of unrepresented workers will be unable to access justice.

 

Or when the TUPE regulations are reformed (currently out for consultation yet happening in the Autumn, BIS says) and employee-owners can give up their rights in return for shares – though the Chancellor’s much derided flagship policy suffered a humiliating defeat in the House of Lords on Wednesday (it was described by former Thatcher-era minister Lord Forsyth as a “positively dreadful clause”), the 71st Lords defeat for the government this Parliament.

 

Perhaps the sharpest wage fall of any developed economy, as highlighted by the TUC, will be reversed when unfair dismissal compensation is capped and employers are no longer liable for third party harassment or have to fill out discrimination questionnaires.

 

But of course it won’t. Scapegoating workers is not the economic medicine the economy needs. Jo Swinson, pictured in her report standing in leafy woodland, can’t see the wood for the employment rights trees that she and her colleagues are determined to fell, no matter what the damage.

 

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

 

 

 

Employer fear of employment regulations is perception, not reality

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors UnionHome blog

 

It’s an odd contrast, the Queen signing the Commonwealth Charter with its commitment to equality and respect for the protection and promotion of civil, political, economic, social and cultural rights and gender equality, while HM Government goes on driving employment rights down to the level of developing countries.

 

As manufacturing output falls alarmingly, creating massive job insecurity by making it easier for employers to sack people is economically illiterate. It makes even less sense now that we have evidence that employers are far more relaxed about employment regulation than ministers would have us believe.

 

The study by academics at Kingston University, commissioned by the Department for Business, Innovation and Skills, which we report in this week’s LELR weekly reinforces our view that the government’s obsession with restricting employment rights and access to justice to ease so-called burdens on business is driven by ideology and has no basis in reality.

 

The researchers’ finding that employment regulation is generally considered both necessary and fair because it ensures employee rights are protected while providing employers with a legal framework belies the government mantra that businesses are scared of taking on staff because of employment laws.

 

Firms surveyed recognised that they rarely experienced issues relating to regulation – such as dismissal or dealing with a dispute. Tellingly however, when asked directly, they said that regulation was burdensome. Employment regulation was perceived as complex. Employers were anxious about the impact that regulation may have on their business or other businesses in the future should they face litigation for failing to meet all the legal requirements.

 

It’s hardly surprising that, when researchers, business organisations or government put it directly to employers that regulations are a burden, or that they are scared of employing staff, that they’ll get the response they want. They are not, usually, asking for evidence to explain the answer. Take question two in BIS’s October 2011 Flexible Labour Markets consultation: What more can Government do to reduce the fear factor in employing staff, particularly the first member of staff that a business takes on?

 

Fear factor, what fear factor? Oh now you mention it…for employers (particularly small ones) can be very suggestible when they are receiving so much attention from policy makers.

 

The Kingston researchers conclude that employers tend to have an “inflated idea of the risk of being taken to an industrial tribunal when dismissing staff” and call for the “high risk” myth to be dispelled to help to reduce the perception that all employment regulation is burdensome.

 

I doubt this is a piece of advice ministers will welcome or act on. Easier to allow anecdote to continue to drive policy, whatever its impact on growth, in order to keep up the government’s calculated attack on working people.

Consultation by carpet-bomb: the government’s new consultation principles

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog.

 

Another week, another government consultation paper. The latest is from the DWP and is about occupational pension schemes and TUPE transfers. Our LELR weekly has the detail. There’s just five weeks to respond.

 

When the Cabinet Office issued new consultation principles last July the cynics among us suggested that Oliver Letwin may as well scrap consultations altogether.

 

The announcement that the government was “improving the way it consults by adopting a more proportionate and targeted approach” was greeted with derision.

 

But now our scepticism has been vindicated by a House of Lords committee. A report by the Secondary Legislation Scrutiny Committee, The Government’s new approach to consultation – “Work in Progress, has called on the government “to launch an independent, external review of their new approach to consultation without delay, and to publish the outcome by Easter 2013”.

 

Letwin claimed that the changes were in order to provide greater flexibility than the 2008 guidance allowed and to ensure that “the type and scale of engagement is proportional to the potential impacts of the proposal”, with an emphasis on “understanding the effects of a proposal and focussing on real engagement with key groups rather than following a set process”. 

 

This grand endeavour essentially boiled down to scrapping the minimum 12-week consultation period and only publishing consultation papers online. As the Lords’ committee observes, the new approach “has indeed changed Government practice, but without bringing benefits that are recognised by those being consulted”.

 

The committee urges the government to recognise that six weeks is regarded as the minimum feasible consultation period, though 12 weeks was the widely expressed preference by those providing evidence to it.

 

Thompsons has had over 20 BIS, MoJ and DWP consultations since July. It’s felt a little like being carpet-bombed, especially when several have been published together. How long they’ve run, or are running for, appears random. We had three weeks to pull together a response to George Osborne’s shares for rights gimmick. And it was three weeks for the BIS ACAS early conciliation consultation. Some have opened or closed on a weekend, others at Christmas.  Five close during the school Easter holidays.

 

That’s another of the Lords’ committee’s beefs. It recommends the government ensures that consultation periods do not clash with holidays or peak periods of activity for the target group.

 

The committee also asks the government to recognise that the digital by default approach may exclude vulnerable and other groups, and may constrain comments from those who do respond.

 

You don’t need to be a member of a vulnerable group to be floored by the way some departments have buried the consultation sections of their websites where the sun doesn’t shine.

 

The Lords observed that the new principles “may allow the Government to make legislation more quickly, but there is a risk that the resulting statute will be less robust because rushed consultation processes make it too difficult for external interests to provide expert critique at the right time”.

 

For this government, the right time is after the policy decision has been taken. It seems that three week consultations are for when a change is already on, or almost on, the statute book. Three months is a luxury reserved for when ministers are just going through the motions, the decision is already made, there’s no great hurry to announce it so the plebs can have their say.

 

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

UK government acquiesces to Europe on BNP sacking case

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors weekly blog

 

The UK government, usually so quick to condemn decisions of the European Court of Human Rights, even to refuse to accept them, appears to have just gone with the ruling in Redfearn v United Kingdom without further appeal to the Grand Chamber.

 

It is moving swiftly to amend the Employment Rights Act 1996 in order to remove the qualifying period of employment to pursue an unfair dismissal claim if the dismissal relates to the individual’s political opinions or affiliations. See our Labour and European Law Review report last week.

 

Redfearn is the case of the BNP councillor who worked as a bus driver, escorting disabled adults and children in Bradford, many of whom were Asian. His employer, Serco, sacked him after unions and individual employees said he presented a risk to service users and colleagues.

 

The ECtHR was split but came down on Mr Redfearn’s side, on the basis that  employees are entitled to be protected by law from dismissal as a result of their political beliefs or affiliations, no matter how offensive their views.

 

So the judges were influenced by the fact that because he had less than a year’s service (as was then the law) he could not pursue an unfair dismissal claim.

 

This was of course a nonsense, since neither did anyone else. And now no one with less than two years does, irrespective of why they have been unfairly dismissed (unless they have been discriminated against because of a protected characteristic under the Equality Act).

 

If the ECtHR was going to pass judgment on the UK’s unfair dismissal laws, it should have been to condemn the overall unfairness of the qualifying period, not just because it denied a remedy to an individual sacked because of their membership of the BNP, a lawful political party.

 

Would the government have agreed so readily then to change the law?  What if the court had said the government was wrong not to have included political party membership in the Religion and Belief regulations? Indeed, would it have introduced the ERA amendment without an appeal if Mr Redfearn had been sacked for being a member of a extreme leftwing party?

 

As full of contradictions, hypocrisies and lack of clarity as the Redfearn judgment and the government’s subsequent amendments are, it does not mean that all dismissals on the grounds of political opinions or affiliations will be automatically unfair, or that trade unions will be unable to choose who to associate with. The landmark case of ASLEF v UK (the  ECtHR decision made eight years ago this week) remains untouched.

 

It simply means that there is no qualifying period for bringing what will otherwise be treated as an ordinary unfair dismissal claim.

 

As ever,  human rights law in an employment context is about finding an appropriate balance between competing interests. It is still for employers to decide what is appropriate. The court was clear on this: “in certain circumstances an employer may lawfully place restrictions on the freedom of association of employees where it is deemed necessary in a democratic society, for example to protect the rights of others or to maintain the political neutrality of civil servants”.

 

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

What’s Jeremy Hunt’s real view on whistleblowers?

Victoria Phillips is head of employment rights at Thompsons Solicitors

The Thompsons Solicitors weekly blog

 

Among the Labour and Crossbench amendments to the Enterprise and Regulatory Reform Bill which have been tabled to be moved at the House of Lords report stage, which starts next week, is one seeking to protect whistleblowers from victimisation.

 

It states “that a worker has the right not to be subjected to any detriment by any act by an employee or agent of his employer, done on the ground that the worker has made a protected disclosure.”

 

How the government responds to the amendment in the light of the letter sent last week to NHS Trusts by health secretary Jeremy Hunt will be fascinating.

 

Hunt called on the NHS to “recognise and celebrate” staff who had “the courage and professional integrity to raise concerns over care”. He warned that “gagging” clauses were being used to “frustrate” such whistleblowing.

 

He is, presumably, aware that the Enterprise Bill, as drafted by the government he is a member of, seeks to restrict whistleblowers’ rights by removing protection for those who blow the whistle about breaches of their own employment contract.

 

The Bill addresses this so-called “loophole” (as the government describes it) by amending the Employment Rights Act (ERA) 1996 so that qualifying disclosures must, in the reasonable belief of the worker, be made “in the public interest”.

 

So when Hunt asks NHS Trusts to “pay very serious heed to the warning from Mid Staffordshire that a culture which is legalistic and defensive in responding to reasonable challenges and concerns can all too easily permit the persistence of poor and unacceptable care,” would he agree, I wonder, that taking out breach of contract complaints will provide Trusts with greater authority to gag workers?

 

Why should a breach of a contract of employment be less in the “public interest” than other breaches of the law? What can be more in the “public interest” than a public authority not abiding by the contracts it makes with its workers? The implication is that those who complain about their contracts are “bad” whistleblowers, while the people in North Staffs who were too scared to reveal what was happening (probably because of their duties of confidentiality under their contract) would be crusaders for justice.

 

It’s not for the government to say what is or isn’t in the public interest anyway – that’s defined in the ERA and for an employment tribunal to decide.

 

Sure, the decision of Gary Walker, former chief executive of United Lincolnshire Hospitals Trust, to break a gag to go on the Today programme could be argued to be firmly in the public interest. We do not know all the details of Gary Walker’s case but what is curious about the case as reported is that there was any confidentiality clause at all in his settlement agreement. Section 43J of the ERA means that any provision in any agreement (including a compromise agreement) which purports to preclude a worker making a protected disclosure is void.

 

Why did Jeremy Hunt not just draw NHS Trusts attention to the existing law as set out in legislation. Or is this just another case of legislation by press release?

 

It’s ironic that by distinguishing “in the public interest” from other reasons, the government is handing the NHS, and other employers, exactly the kind of “legalistic and defensive” armour that Hunt complains of. Ministers are, as ever, making it up as they go along to make headlines. They should leave well alone.

 

Another amendment to the Bill, tabled by the government, is intended to implement the decision of the European Court of Human Rights in the case of Redfearn v United Kingdom, which involved a bus driver sacked after he became a BNP councillor.

 

The amendment disapplies the two year qualifying period for unfair dismissal if the dismissal was on the grounds of political opinion or affiliation.

 

There’s more information about the Redfearn case and the amendment in this week’s Labour and European Law Review bulletin. And I’ll be blogging about it soon.

 

Settlement agreements put workers between a rock and hard place

Victoria Phillips is head of employment rights at Thompsons Solicitors

The effect of the ACAS consultation on the draft statutory code of practice for settlement agreements is to confirm the importance of trade union membership. With a union to turn to it is unlikely that workers ambushed by employers with a letter giving the choice of an offer of a meeting to discuss their underperformance or money to leave will accept something that is not in their interest.

 

But for the unrepresented, the risk is they will feel pressurised to do just that.

 

Although the draft template letter ACAS has produced provides the option of a meeting and the opportunity to improve, the employer wouldn’t be suggesting exit terms if they really wanted to go down that route.

 

Settlement agreements are not that different from the original “protected conversations” proposed by Tory donor Adrian Beecroft. They allow an employer to make an offer to end an individual’s employment without it being able to be used as evidence should that employee go on to pursue an unfair dismissal claim, as long as there’s been no undue pressure or improper behaviour in the making of it.

 

There’s no requirement in the employer’s letters, as currently drafted, for including the detail of the issues and, of course, that’s the point of settlement agreements. The government wants to free employers from the hassle of having to explain, in writing, why they think someone needs to pull their socks up or leave.

 

But unless the employee is told exactly what the concerns are they will be unable to assess risk (especially in just seven working days, the suggested time limit for accepting an offer). Without the buffer of a union to advise them, what are they to do?

 

And what if the employer simply doesn’t like someone and is trying to bluff them, implying they have something on them when they don’t? It would take a confident person to go in alone and demand the evidence.

 

Settlement agreements provide a veil of secrecy which will be difficult for all but the well resourced, persistent and union represented claimant to lift. Potentially an application to do so could only be made at a final tribunal hearing, meaning that the parties have to stay the distance and that costs will increase.

 

Settlement agreements are, in reality, a lever to get rid of perceived problem employees without bothering with due process. Such behaviour will undoubtedly demotivate staff who either receive such a letter, or hear about them being used. These plans are fraught with the risk of unintended consequences.

 

The consultation paper can be downloaded here

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

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