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However, although this questionnaire is being withdrawn, there is obviously nothing to stop potential claimants from putting questions to their employer to further a potential discrimination case.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:
- the employee should set out their details and that of the person they want to answer their questions
- the employee should set out the protected characteristic under the Equality Act (race, sexual orientation, religious beliefs etc.) that they consider has been affected.
- the employee should describe what happened to them
- the employee should set out the type of discrimination they have experienced
- the employee should say why they think it was unlawful
- 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
Warren Town is shortlisted for this year’s UnionHome writer of the year competition.
As the politicians on both sides contemplate the pay for health service staff and witness the backlash from the announcement by that nice Mr Hunt (Sec of State) to divide and rule over pay uplifts, you can but wonder which planet the MPs inhabit.
Labour condemn the government for not giving all NHS staff a rise and in the same breath agree that if elected they need to continue the austerity programme the coalition have introduced.
That other lot, the Tories and the Liberals (remember them!) bleat on about affordability and the need to have sufficient funds to pay for high quality care when a report published by the ‘Point of Care Foundation’ http://www.pointofcarefoundation.org.uk/Home/ highlighted the need to have an engaged and content workforce to provide that care. I suppose cutting NHS staff pay is an MP’s way to provide an incentive to care and be valued! But wait they have agreed an uplift the following year. This is a kin to mouldy jam on stale bread.
So the government’s response is to ignore a perfectly reasoned Pay Review Body Report and impose their own recommendation that suits, using arguments that do not stack up and imposition that no one wants!
At least we can say that the Pay Review Body are consistent and have integrity.
But cast your minds back to the MP pay rise and recommendation. Was it not Clegg and his mates saying that they felt that an 11% pay rise was too much? Odd how you adopt a principled position when the award you have been offered cannot be refused. We must feel sorry for them to have this recommendation imposed on them.
Odd that MPS are so keen to champion the need for performance, when theirs is wistfully well below par.
Odd that it is a jury of millionaires that determine that those of us providing a service to the nation must suffer when they themselves enjoy a privileged position.
The spurious statement by Hunt that NHS employees enjoy a pay rise as a matter of course because they have increments, beggar’s belief.
Only last year the Unions agreed a framework to ensure that progressions would be measured.
Why has this not happened? – Because employers do not have frameworks in place to monitor or judge staff performance.
The government’s answer to this fiasco is not to ensure that employers do their job but to punish the staff by imposing a pay cut.
Let’s stop looking at this as a ‘austerity’ package and see it for what it is.
This government has failed to balance the books as it said it would. This government has failed to support public service and has done nothing to encourage investment in training and development or in a system of care vital to the well being of England and Wales.
This government is now so arrogant that it believes it can do and say what it likes because the public are so demoralised and the opposition is so weak that any dissent is nothing more than a distraction.
Love them or hate them, without a credible alternative Cameron (not Clegg) may breeze into the next national election with the belief that the future is blue and that they are the only alternative.
John Park, AGS at Community
Fourteen years ago this week I was at a small gathering in Farringdon Street to mark the 100th anniversary of the birth of the modern day Labour Party. It’s a treasured memory that has stayed with me, not because every living leader of the party was there that evening – Blair, Beckett, Kinnock, Foot and Callaghan – but mainly because it was the first time I really appreciated the history that surrounds the unique relationship between the Labour Party and the trade union movement.
What was also clear to me that evening was that – apart from John Smith’s introduction of one member, one vote – the formal relationship between the party and its affiliated trade unions had witnessed very little structural change in 100 years, and until Saturday that was still the case.
Unions21 is a trade union network that shares best practice and new ideas between its members. For the first time, its steering committee have decided that Unions21 should put forward a position on a government bill.
The legislation in question is the ‘Transparency of lobbying, non party campaigning and trade union administration’ – aka the Lobbying Bill. The Bill has been has been highly controversial and drawn criticism from voluntary groups and charities as well as trade unions.
The case against the bill centres around it’s restriction on campaigning in the run up to an election and a new administrative burden on trade unions which over-rides the right to privacy of their members.
It is perhaps a mark of how far the government has deviated from moderation in its approach to legislation in this case that professional unions, not affiliated to the Labour Party, have put their case to the Government individually, through the TUC and for the first time via Unions21.
Views on the “chilling” effect of the bill are covered below in the submission from the Royal College of Midwives. Issues around the requirement for unions to hand-over membership records and private correspondence are set out below in a submission from the FDA.
Dan Whittle, Director, Unions21
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:
Warren Town is SoR Director of Industrial Relations
It appears that MP’s truly get a bad press and when they get some good news we cannot help but knock them for six.
Take the 11% increase in pay announced by the independent parliamentary watchdog. Does this seem unreasonable in the light of day? After all is it right that we should see our leaders reduced to lining up at food banks for their cans of beans and staple diet. Is it unreasonable to expect our leaders to rummage around in their piggy banks to pay for their second home or delve into the back of the sofa in the hope they will scratch together enough money to pay for their tea and biscuits.
These are the people we elect to sort out the country, to bring us back on track and show us that all the pain and loss will be worth it. This is a monumental burden that they have to shoulder and hence is it unreasonable that as we scrimp and save for Xmas they should, at the very least, see some benefit from their toil, their burden of guilt and the difficult decisions and that they have to make day after day.
Is it not right that we should attract the most able millionaires to the cabinet and not be faced with second best? Is it not the case that we should equate their earnings with High Court Judges, Senior Officials in Local government and Head Teachers, who have themselves struggled to keep their wages apace with rampant inflation and have been known, heaven forbid, to downgrade their brands of whiskey all because of austerity.
Should we, public servants, not also be beacons and trendsetters and heed requests from the government that we forgo increments and any pay rise to help the country prosper? Should we not also be joyful that they have an impendent body that can legally impose any increase on them despite their pleas and utterances that they share the pain of austerity with the citizens of this nation?
Is it not time we thanked them for endless ‘U Turns’ on policy that cost us dearly in time and money, for their slavish support for their expenses policy, for their actions to undermine and destroy public service in England and should we not forget that they, not us, already earn in excess of three times the average salary of a common citizen and just a little more for so few will not make that much difference to the economic plan.
As Danny Alexander said it would be “wholly inappropriate” at a time of curbs on pay in the public sector for MP’s to receive this level of award. This goes to show that MP’s do appreciate what we are going through and that they are fully aware that they have no choice but to accept.
These are our leaders, our saviours and the very group we elect to act in our best interests.
Just keep that thought in mind in two years time.
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
Most of the media focus has been on the government’s ‘hugely successful’ sale of our 400+ year-old Royal Mail at a knockdown price to their chums in the City. Over at the postal workers’ union, they have been busy protecting the people most likely to lose their jobs or have their pay-and conditions affected after the looting is over. Perversely, these are the people who deliver the mail all over the country making it a profitable and the few ‘free share’ bonuses they received will not compensate them for when the rationalisations kick in. Nor will it profit ‘Joe Public’ – not even the small number of those with a spare £750 to buy 200+ shares – when the price of a stamp soars or the rural areas find the service disappearing.
So, I’m really proud of the job my union, the CWU, are doing. First, the heroic battle which the postal workers have fought against privatisation of the Post Office and Royal Mail over the last 20 years. No other union can match their record, since the first attempt was made to privatise the Post Office in 1994. The union, then led by Alan Johnson MP, launched the first and most truly impressive campaign, (‘Stand by Our Post’) in Parliament and in the country. So effective was it, that scores of Tory MPs in rural seats,forced Heseltine and Thatcher to back down. Sadly, it was a Labour government which next tried it in the 2000s. To his credit, Gordon Brown as PM, was persuaded by the unions, in the context of the ‘Warwick Agreement’ of 2005, to keep the business in the public sector. Since then the CWU also secured Labour Manifesto commitments which gave the Opposition a strong anti-privatisation policy in Parliament, albeit unable to stop it being privatised recently by the Conservative and Liberal Democrat Coalition.
It was to minimise the impact of the CWU’s overwhelming ballot of Royal Mail’s workforce – those with the greatest interest, next to the public - against privatisation, that the Ministers and Stock Exchange brought forward the sale before the ballot result. That remarkable expression of the entire workforce’s and most managers’ wishes would normally make the headlines as a weighty consideration. Instead, it was used by the Minister, Vincent Cable MP and the brokers handling the sale, as an excuse for their, at best, negligent haste, at worst, profiteering, decision to pitch the value of the company so low – £3.5bn instead of the £10bn valuation they were advised privately.
With such a powerful conflict between the interests of greed and working people, this government again demonstrated which side it is on and so ‘The Private Mail’ is a company like any other -
it can surely no longer legitimately call itself ‘Royal Mail’? But the union has not gone away. With its threat of industrial action now validated by such a huge majority, it forced the management to come back to the negotiating table with a much improved pay and conditions offer. The CWU negotiators are now in there seeking legally binding procedures to terms and conditions of employment in the private business – itself a novel demand in British industrial relations. The company offer is a very limited three year protection, but Dave Ward, their Deputy General Secretary and lead negotiator, has made it clear that they want to extend the range and scope of any deal. They are also seeking to protect the organisational integrity of the company, addressing potential dangers of franchising, outsourcing and fragmentation. They look like getting a good deal. Here is an effective union in action.
The union is negotiating a separate (also legally-binding) pensions deal. They have so far managed to protect the defined benefit (final salary) scheme – how many of us have managed that in the private sector these days? They got all members to send in a pensions protest on post-cards to convince the employer of employees’ concerns. The union is also mindful that 10% of the company’s shares have been kept back for employees. Despite their disappointment with losing the benefits and security of being a publicly-owned business, Dave Ward sees the union’s job now to fight for its members’ interests, regardless of who owns it. To this end, they are now exploring actively with expert advic, the potential of setting up a CWU Shares Trust to co-ordinate their members’ individual voting rights and collective influence. He thinks this could provide a crucial extra voice and influence for postal workers.
These negotiations are naturally taking some time, but anybody who believes the media image of this union as a bunch of mindless, strike-happy militants, rather than as an intelligent, imaginative and effective collective force, had better think again. Is this not the way forward for other unions also?
At the Labour Conference fringe in Brighton, there was a distinct change of mood. It wasn’t just Ed Miliband’s one hour ‘tour de force’ but also the warm reception given to traditional union figures such as Len McCluskey and Paul Kenny. So, the fringe called by the Institute of Employment Rights and others on Monday in the Grand at lunchtime on the topic,’Trade Unions:New rights; new freedoms’ , was packed with a star-studded cast of speakers, led by Unite’s Lennie.
This was also the launch of a ‘Manifesto for Collective Bargaining’ by the Institute and the Campaign for Trade Union Freedom of the Morning Star orientation. An accompanying booklet by the Institute of Employment Right’s veteran lawyer duo, Keith Ewing and John Hendy QC, made the case for the new ‘Manifesto’. It called on a future Labour government to reestablish a Ministry of Labour and an ACAS with teeth to promote sectoral collective bargaining. Employers would be obliged to participate as a precondition for securing public contracts. The resulting sectoral agreements would be legally binding and their terms part of each workers’ terms and conditions. It would be implemented gradually and flexibly and in industries without the infrastructure to support collective bargaining, Wage Councils would be encouraged.Their ‘Manifesto’ also calls for a much needed strengthening of the current statutory recognition procedures, lowering the required threshold to 10% membership and also of the right of individual workers to be accompanied by a union official.
All good moderate stuff (amazingly so from that camp!). Question is, will ‘Red Ed’ be prepared to take it onto Labour’s Manifesto? Judging by the revealing profile of his Policy Coordinator, Jon Cruddas MP (Tony Blair’s former union liaison man), in the Conference issue of ‘The House Magazine‘, nothing could be further from their minds. But you never know how things develop, particularly in the consultations due to commence over Lord Ray Collins’ final report, on how they plan to ‘reform’ the Labour-union link! Len McCluskey’s recent warm praise for Ed’s speech at the Jimmy Reid Memorial lecture in Glasgow and assurance of adequate UNITE funding for the general election in 2015, that we are talking compromise?
Which brings me back to the actual coalition government. We had the Conservative ‘envoy to the trade unions’, Lord Balfe, at the Unions 21 meeting, though their conference clearly wanted them to go even further with more restrictions on union industrial actions – their subsequent announcement of an ‘Inquiry’ into practices during the Grangemouth oil refinery dispute with Unite, shows their current form. By contrast, Balfe was quite emollient. He even praised three significant union-inspired gains of the previous Labour governments: the statutory Minimum Wage and Living Wage policy, the gains on gender equality and the Employment Tribunals/individual rights legislation. He indicated that they would want to keep ‘check-off’ for union subscriptions in the public sector, despite Tory Party pressures to ban it. It is not clear whether PM Cameron listens to his envoy, but the fact that he has now been elevated to the Lords, suggests that they are at least thinking about unions again not as ‘the Enemy Within’ . Perhaps we need an Envoy to the Coalition government, as the Lib Dem leaders did not seem too happy about this further lurch against union actions?
Equally significantly, perhaps, was the Labour Leader’s post-Conference highly effective stand up to The Mail, over their calumny of his Marxist dad’s patriotism. This outcome suggests to me that we are beginning to move beyond the hegemony exercised by Thatcher and the right-wing media up to recently. This could be most important for a bolder shaping of future Labour policy towards unions as collective bodies with legitimate rights.
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.