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

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.

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”.


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