I imagine that Matthew Taylor is pleased with the response the Government has given to his “Good Work’ review of Modern Employment Practices. A (mainly) positive response to all but one of his recommendations (the Government seem determined not to try and mess about with self-employed National Insurance Contributions) is probably better than he was hoping for.
Despite the positive noises coming from No 10, however, the Government has not actually committed itself to much. Most of the proposals, even if they are welcomed in the Government’s formal response, are then sent out for consultation.
Four consultation documents have been published:
employment status: this looks at the proposals on the definition of an employee and a worker – as well as the proposals made by the Taylor review on the calculation of working time for those using ‘gig-economy’ platforms like Uber and Deliveroo.
agency work – this covers in particular the proposal to abolish the Swedish Derogation. This is a much abused exception in the Agency Workers Regs that allows agencies who directly employ the workers they supply to avoid having to match the pay of the end user if they offer sufficient pay between assignments.
transparency in the labour market – covering the Review’s proposals on written statements of terms and conditions, holiday pay, continuity of employment, the right to request flexible working and the Information and Consultation of Employees Regulations.
enforcement of employment rights – looking at the problem of unpaid tribunal awards and repeat offenders.
Sometimes when a Government issues a consultation it has a very clear proposal that it is putting forward and is seeking detailed views on. That is not the case here. The employment status consultation essentially just asks what we think of the Review’s proposals – and the other consultations are more like a call for evidence, asking employers to give their experience of how the rules currently work and what they think the impact of changes would be. Of course it’s good to be open-minded – but this does rather smack of kicking the can down the road.
The Government could for instance, have developed the Review’s recommendations into some concrete proposals and consulted on those. On employment status in particular, Government has been looking the issue for years and we still haven’t seen anything concrete.
I am of course a bit of a sceptic when it comes to redefining employment status. I think it’s very easy to say ‘we should come up with a new, clear and unambiguous definition’, but rather more difficult to actually come up with one. The fact that the consultation seems to concentrate on the benefits or otherwise of codifying the existing case law – essentially taking the principles set out in the cases and writing them into the statute – rather makes my point. I cannot for the life of me see the point of that approach, but I suppose we will be having this argument for some time to come.
So what happens now?
Well the consultations run until various dates in May – or 1st June in the case of employment status. I would be astonished if we saw a Government response before the end of the year. Once the Government has decided what it actually wants to do it can then look at coming up with an Employment Bill (most of these changes will require primary legislation) and possibly some further consultation on specific proposals. Perhaps – if the Government was really determined – we could see something being put forward in the Spring of 2019, with a view to the changes coming in during late autumn or (more likely) early 2020.
How likely do we think that is? Does the Government really have the bandwidth to carry out a major reform of employment law? Or could it be that other priorities will crowd out a re-think of employment status and the rules on continuity of employment? How confident are we that Theresa May will stay in position over that time to drive these changes through? Would Jacob Rees Mogg or Boris Johnson share her enthusiasm for improving workers’ rights?
Fundamentally I just don’t see any of this actually happening. Perhaps some of the minor changes that don’t need detailed legislation will make some progress, but I won’t be holding my breath for any of the big ticket items.
Of course, it will be fun over the next couple of years to speculate about how the definition of employee and worker could be improved, but I suspect that much greater progress will be made in the courts than in Parliament. The Supreme Court hears the Pimlico Plumbers case this month. In the end, I think that case will have a bigger influence on employment status than anything the Government has published today.
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Experience teaches that the law of unintended consequences flourishes in the employment field. The giving of additional rights usually reduces the employability of the recipient group and they’d rather have another contract and let’s not bother with the rights, please!
The majority of agency workers, for example, don’t much want the AWR rights; they would rather know they will be asked back next spring, and in the meantime they want to work as many hours as they can to build a reserve against void periods. How many statements of key points are just going to be pushed to the bottom of a backpack unread and binned on Friday afternoon? 95/100, probably.
People want the work because they’ve got bills to pay. Money to accumulate.
All an unpaid rest break does is lengthen your shift if you need to be paid for your full eight hours, and insisting on the right doesn’t lead to popularity if everyone else is losing 30 minutes money or has to work half an hour longer because of it.
Temps work for money and though if they are offered a job they will be happy, having to go through a competitive recruitment in the course of which their experience in the actual role is ignored isn’t actually fair to them.
The real problem is that the silent majority are not consulted or listened to. They would rather have fewer rights and a better chance of being hired, kept on, or re-hired. To use David Goodhart ‘s terms, those who reply to consultations come from Anywhere, and the protection they think folk from Somewhere need might actually be unwelcome if not positively harmful.