An early fringe meeting at this year’s Labour Party conference will provide opportunity to debate the justice issues we are facing post Jackson and discuss the Trade Unions role as a gateway for preserving our legal rights in the future. Two prominent General Secretaries – Paul Kenny, General Secretary of the GMB and Dr. Mary Bousted, General Secretary, ATL will lead the debate.


The event will be chaired by Frances McCarthy, Managing Partner at Pattinson & Brewer in the Castor & Pollux Beach Front Gallery (Unions 21 events space). Frances said:


The Con Dem Government is crippling our justice system and, without access to advice and representation more of the vulnerable in our society will be left to suffer, open to abuse and neglect and unable to gain the justice they deserve. We believe that it is the Trade Union Movement who will play an even greater part in helping working people and their families to regain and maintain their legal rights”.


Andrew Dismore, Assembly Member for Barnet and Camden also joins the panel. Andrew is co-ordinator of Access to Justice Action Group, who are active campaigners.


Comment will also be sought from the panel and those attending the fringe on how Labour can embrace the role of Trade Unions and lead with the critical reforms needed when they return to power. Are the Trade Unions the key to preserving peoples’ legal rights and how best can they lead the way in reforming Jackson?


Click here for more info


Responsible employers should follow the lead on holiday pay

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog


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


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


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


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


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


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


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


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


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

Zero Tolerance for Zero Hours

Paul Moloney is a member of the Unions21 Steering Committee and Industrial Relations Manager for the Society of Radiographers

The latest debate on zero hours contracts seems to be taking place with little or no trade union input. Instead, owners of small businesses are invited by various different media to speak up for such contracts. One such “entrepreneur” is quoted in the Guardian (letters, 6th August 2013) saying that “we can employ people on fixed hours contracts when you, the consumer, are prepared to pay them to sit at home”. So the blame for the use of archaic employment practices lays with us the consumer.


Frustratingly, with no union view sought, no one seems prepared to challenge this view. Instead sympathy goes to the struggling business owners doing their utmost to meet our needs as consumers while the Institute of Directors claims that without zero hours contracts the UK economy would have “gone the same way as southern Europe”.


But let’s be frank. Any business that relies on zero hours contracts, whether in the private or public sectors, is a business that has an unfair competitive advantage over those not resorting to such tactics. They have an unfair advantage either because using zero hours contracts is the only way they can make money, in which case are they really the type of business our economy needs, or they are making unfair and excessive profits compared to others.


While it is tempting to see all business owners as money grabbing, unscrupulous profiteers the likelihood is that many are simply masking their lack of entrepreneurial skill by exploiting workers, shifting the blame on to consumers and as a consequence undermining companies with a stronger vision who do wish to compete through long term sustainable policies based on using skills to be better not cheaper.


We therefore need to shift this debate away from the Institute of Directors and the individual small business whose owners may genuinely believe they have no choice but to use such contracts. No doubt these are the same people who predicted the collapse of our economy when the minimum wage was introduced and for whom the concept of a living wage is as alien as the idea that work should allow people to develop their skills and contribute meaningfully to society.


We need to do this because the zero hours contract issue is part of a much wider debate that touches on all of the issues looked at by unions 21 through the fair work commission. Zero hours contracts should be outlawed, but not just because they exploit individual workers, but because they are part of a series of measures that help prop up failing businesses that otherwise would not be able to compete with those businesses that do invest in decent employment conditions, skills and maybe even trade union recognition.


In the 1970s and 80s the Tory’s made much of Labours attempts during the 1974-79 period to prop up “failing” businesses by nationalising them. So why should today’s workers artificially prop up failing businesses today by accepting a form of exploitation that many of our international competitors in Europe avoid.


We also need to start challenging with some vigour the idea that consumers want something different to workers and therefore demand zero contract hours as a means of achieving the aim of goods and services at the lowest possible cost. Instead we need to make the argument that not only do consumers and workers have identical interests they are in fact the same people!


And we need to challenge the Institute of Directors and its view that a de-regulated, low wage, low skill economy is the only way to compete internationally.


Information about our fringe meeting on zero hours contracts at Labour Party Conference can be found here.

McDonald’s are pulling a fast one on zero hours

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog


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


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


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


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


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


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


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


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


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


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


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


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


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

Great news for Britain’s worst bosses

The TUC has today slammed new laws that will force employees to pay upfront fees if they want to pursue a sexual harassment or race discrimination complaint against their employer.


From today it will cost someone £1,200 if they want to take their boss to an employment tribunal hearing for sexually harassing them. Worker’s facing racist abuse will also face the same barriers to justice, says the TUC.


The Evening Standard reports that protests will be held today and that employment lawyers predict “chaos”. Andy Prendergast, of the GMB says in the Independent: ‘The imposition of such fees represents the latest in a number of attacks on employment rights by the Govt. The charging of £1,200 effectively means many workers will lose any chance they had to seek redress if they are poorly treated.’ 


Meanwhile, the Shadow Secretary of State for Business Chuka Umunna has said on Twitter that the attack on employee rights shows the Government “want to win a global race to the bottom, not the global race to the top which we strive for.”

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.


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.”




“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




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

If you allow employers to compete on cost not quality, you get horse

You would be forgiven for thinking that one of the last places you would find traces of horsemeat would be in a trade union officials blog but you will be disappointed.


One of our challenges as a movement this year is the changes to employment law that come into effect this year. So what is the common thread that links the horsemeat scandal and the latest attack on employment rights by the coalition?


In my view there is a very direct link as a result of the way this Government wants to see competition work in the UK. It is a particularly dangerous type of competition that is not only tolerated by the current Government, but through these changes, actively encouraged.


Shock and horror can be expressed at every stage of the food chain stretching it seems across the whole of Europe but it is difficult to conclude that no one knew that cheaper meat was being advertised and sold as more expensive meat. The Chief Executive of Waitrose has recently been quoted as saying that if consumers want higher standards they will have to pay for it.


And it is that attitude that exposes the real scandal about horsemeat in burgers and the link to the removal and limiting of employment rights. This simple statement shows that it is all about competing on cost. The sole obligation of any Chief Executive is to maximise return to shareholders which is achieved by either being better than competitors or by being cheaper. The horsemeat scandal is simply a consequence of competing on cost rather than quality.


The greater scandal however is that the attack on our employment rights has to be seen as a green light to those who can only compete on cost. Employment rights give individuals important protection but they also limit, to a small extent, the ability of a business to compete through exploitation and discrimination. The removal of these rights, or the curtailment of the ability to enforce them, represents a very clear statement by Government that they want more competition on cost and want to undermine those doing their best to compete on quality.


That means not only will we continue to find horsemeat in our burgers, but we will continue to see training budgets slashed and the undermining of essential protections such as the minimum wage and the working time directive.


In the health service we are about to see the implementation of the 2012 Health and Social Care Act which is designed to increase dramatically competition in the provision of health care. While eating horsemeat may not be a threat to human health, competition on cost in the health service is. It seems somewhat contradictory that we face this possibility while at the same time coming to terms with the wider implications of the Frances Report into Mid Staffordshire.


Perhaps the trade union response to the horsemeat scandal therefore is to reconnect with consumers and show how the attack on employment rights is an attack on us not just on the shop floor but also in the shopping centre.


The need for rights for working people is as important for consumers whether they be customers, passengers of patients as it is for workers. Health and safety legislation, the minimum wage, the working time directive, the equality act and even the requirement to auto-enrol workers into pension schemes not only protect us while we are at work but also help ensure that businesses competing for our custom are doing so by trying to be better than their competitors rather than by being the cheapest. These pieces of legislation therefore not only protect us as workers and employees but also protect our interests as consumers.


The horsemeat scandal may well make many think about turning vegetarian but our job as trade unionists is to make sure people understand that our interests as workers and as consumers coincide entirely. If we can get that argument across in the Health Service, where we are talking about patients rather than consumers, then we can re-build the consensus needed to deliver first class health care in the UK.


Paul Moloney

Industrial Relations Manager

Society of Radiographers