A Range of Reasonable Responses

The New Duty to Prevent Sexual Harassment

Posted on August 14, 2024 by Darren Newman

I have a problem with the Worker Protection (Amendment of Equality Act 2010) Act 2023. It’s a rubbish name for a statute to begin with. But I also think it does something fundamentally undesirable. Bear with me, though, because it will take a while to explain.

This Act was introduced as a private member’s bill, although it was supported by the Government of day and implemented a policy that they had committed to back in 2021 to: “introduce a duty requiring employers to prevent sexual harassment”.

The idea that there should be a duty to prevent harassment – as opposed to a remedy for those who suffer it – seems reasonable enough. Bringing a claim for harassment is a gruelling experience and obviously it would be better if the harassment had simply not happened in the first place. Focussing the duty on sexual harassment – as opposed to any other kind – is a result of this proposal emerging from the 2018 report of the House of Commons Women and Equalities Committee into sexual harassment in the workplace.

And what is that duty? Here is what the Act says (creating a new S.40A of the Equality Act):

An Employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment

This duty comes into force exactly one year after the Act received Royal Assent – which gives employers until 26 October 2024 to put the appropriate measures in place. You know the sort of thing – risk assessments, policies, training. All the usual stuff. This seems straightforward. But there are some things to unpick before we get to the issue that I am concerned about.

The definition of sexual harassment

First of all, what is meant by sexual harassment? Harassment as a whole is defined in S.26(1) of the Equality Act as unwanted conduct ‘related to’ a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for them.

This new Act does not create a duty to prevent this sort or harassment. It only applies (new S.140A(2)) to sexual harassment as defined in S.26(2) of the Equality Act. This deals with unwanted conduct ‘of a sexual nature’ which has the purpose or effect that is described in S.26(1).

We have never before had to distinguish between harassment under S.26(1) and S.26(2). And it is quite common to describe as ‘sexual harassment’ behaviour which does not involve conduct of a sexual nature. Suppose we have a misogynistic manager who subjects a female colleague to denigrating comments and jokes. That would be unwanted conduct related to her sex and which violates her dignity. We may call that ‘sexual harassment’, but within the meaning of the statute it is just harassment. To be sexual harassment within S.26(2) it must involve conduct of a sexual nature. It is only that sort of harassment that employers will have a duty to take reasonable steps to prevent.

The role of the Commission

So what happens if an employer acts in breach of this duty to prevent sexual harassment? Individuals will not be able to sue the employer for the breach – that power is reserved exclusively to the Equality and Human Rights Commission. It can investigate employers who appear not to be complying with the duty and ultimately issue unlawful act notices to employers who continue to be in breach. An employer who does not comply with an unlawful act notice can ultimately be fined – though I am not sure that this has ever happened in practice. Even unlawful act notices are rare. One was issued to Pontins back in February this year, but I am not aware of any others since the Commission was founded in 2006.

For most employers, the chances of the Equality Commission knocking on their door and demanding to see what steps they are taking to prevent sexual harassment are as close to zero as makes no difference. On the other hand, if I were the BBC, the Ministry of Defence or the Metropolitan Police I would regard a visit from the Commission as pretty much inevitable.

But I shouldn’t be too cynical about this. I know lots of employers who will genuinely want to do more to prevent sexual harassment and will regard this law as an opportunity to focus on the issue. Employers in Local Government and the NHS will also come under considerable political or union pressure to make sure that they are seen to be complying with the new duty.

Enhanced compensation

Nevertheless, I think the real impact of the Act will be felt in the Employment Tribunals. Just because individuals cannot sue for breach of the duty per se, that does not mean that individual claims will be unaffected. The Act inserts a new section into the Equality Act (S.124A) allowing the Tribunal to increase compensation when someone successfully sues their employer for sexual harassment and it is then found that the employer had breached its preventative duty. In those circumstances, the Tribunal “may” increase the compensation awarded to the employee by as much as 25% in order to reflect the extent of the employer’s failure. Given that there is no cap on compensation awarded for harassment, this could potentially represent a significant sum and be well worth having.

This brings me (at long last) to the problem. It strikes me that almost any successful sexual harassment claim will attract this uplift.

In a harassment claim, the claimant is relying on the fact that the employer is liable for the actions of the individual who has harassed them because the harassment was something done ‘in the course of their employment’ (S.109(1)). But the employer has a defence. It can avoid liability for harassment if it shows that it has taken “all reasonable steps” to prevent the individual from “doing that thing” or “doing acts of that description” (S.109(4)).

Here’s my point. If it is a defence for an employer to show that it has taken all reasonable steps to prevent the harassment then it must follow that in any successful claim for sexual harassment the employer has failed to establish that defence. And if it can’t show that it has taken all reasonable steps to prevent the harassment then it seems to me that it must be in breach of its duty to take reasonable steps to prevent sexual harassment.

Now, technically, this new duty does not require the employer to take ‘all’ reasonable steps, but I don’t think that omission affects the meaning. Asking whether someone has taken reasonable steps to prevent something is equivalent to asking whether they have taken such steps as were reasonable. The employer could hardly expect to discharge the duty to prevent sexual harassment by pointing out that it took some of the reasonable steps open to it but decided not to take the others. The technical guidance being produced by the Equality Commission certainly draws no such distinction.

A hierarchy of harassment?

So the situation we have is that any claim for sexual harassment will – all other things being equal – attract a higher level of compensation than a claim for ‘normal’ harassment where there is unwanted conducted that is related to a protected characteristic. But why should we treat sexual harassment as being more serious than, say, racial harassment? In both cases the harassment might be absolutely devastating to the victim and involve serious criminal conduct. I don’t think it is desirable or in keeping with the spirit of the Equality Act to create a hierarchy of harassment based not on the harm done but the basis of the claim.

It is also inevitable that we will have litigation seeking to draw a distinction between unwanted conduct related to sex and unwanted conduct of a sexual nature – because the way in which the harassment is categorised could significantly affect the compensation awarded. That distinction will not always be easy to draw.

The Government will have the opportunity to address this issue in its proposed reform of the Equality Act. According to ‘Labour’s Plan to Make Work Pay’:

Labour will require employers to create and maintain workplaces and working conditions free from harassment, including by third parties. And Labour would properly tackle sexual harassment at work. One in two of all women have been sexually harassed at work; this must change. Labour will strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts.

It’s not exactly a clear pledge – but it does give the Government wiggle room to extend the new provisions to all forms of harassment. Any changes would not come into force until after the sexual harassment duty takes effect in October – but the sooner they can be made the better.

Posted in Equality Act, Harassment | Tagged duty to prevent harassment, Equality Commission, sexual harassment, Worker Protection (Amendment of Equality Act 2010) Act | 4 Comments

Should the BBC have sacked Huw Edwards before he resigned?

Posted on August 1, 2024 by Darren Newman

Was the BBC wrong to keep Huw Edwards employed despite knowing that he had been arrested on such serious charges? Looking at the timeline I think it’s difficult to criticise their approach. Most large public sector organisations would have done the same.

When an employee is accused of a serious criminal offence – the sort of offence that, if they are guilty, would mean that they obviously could not continue in their role – then the employer has a choice. They can dismiss the employee at once or wait for justice to take its course and keep the employee suspended on full pay until they are either convicted or acquitted.

We often say that a person is innocent until proven guilty. But we don’t really behave as though that is true. Employers can certainly not take the risk of allowing employees to continue to work with allegations hanging over them that suggest that they pose a risk to either the business, its customers or members of the public. They often have to be kept away from the workplace – which usually means a suspension on full pay. Waiting for a verdict can therefore be a very expensive option. What is more, while a conviction would certainly give solid grounds for dismissal, an acquittal could leave the employer in a very difficult position.

Imagine a teacher charged with offences that raise serious safeguarding issues. If a jury decides that they are not ‘sure’ that the individual is guilty, is it really an option to let the teacher return? Would parents feel comfortable with their children being cared for by a teacher on the basis that ‘nothing has been proved’? In those circumstances the employer might well dismiss. Not because the teacher is guilty but because there is a risk that they might be. This is a potentially fair reason for dismissal (employment lawyers describe it as an SOSR dismissal – a dismissal for ‘some other substantial reason) and depending on the circumstances might well be held to be fair.

In fact, an employer might still be acting fairly if it dismisses before a trial even takes place. The argument would be that given the nature of the work it is not feasible for an employee who has been charged with such an offence to return. If there is enough evidence to sustain a charge, then an employer might reasonably conclude that there will always be a level of suspicion hanging over the employee and so it may as well proceed straight to dismissal rather than keep the employee on paid suspension for an extended period first. That is of course unfair on a wrongly accused employee – but an ‘unfair dismissal’ case is primarily concerned with the reasonableness of the employer’s decision to dismiss rather than with whether that decision causes injustice to the individual. For the purposes of an unfair dismissal claim, the needs of the employer might outweigh the unfairness to the employee.

But there are other factors that the employer needs to consider. If its employees are vulnerable to false allegations – perhaps because of the kind of people they have to interact with or because they are in the public eye – then the employer will not want to be hasty. It sends a negative message to other employees if it appears that the employer will simply dismiss anyone against whom serious allegations are made. The employer will want to check – as best it can – the circumstances of the allegation and assure itself that there is some substance to it.

This is often made more difficult if the employee is signed off sick and cannot be spoken to. That is likely at the very least to delay any decision about what to do. Of course the employer does not have to keep the job open indefinitely but sickness absence does make it harder to reach a decision.

There is also a wider duty of care. I have known of cases where employees facing serious charges have been identified as being at risk of suicide. In those circumstances the question of whether an Employment Tribunal would regard it as ‘fair’ to dismiss them rather fades into the background. These are sensitive matters that have to be handled carefully.

One other factor to throw into the mix is the contract of employment. That will allow the employer to dismiss without notice if the employee is actually guilty of gross misconduct. But if the Tribunal (or court) accepts on the ‘balance of probabilities’ that they are innocent, then dismissal without notice would be a breach of contract. We would call that a ‘wrongful’ dismissal as opposed to an ‘unfair’ dismissal and I try my best not to get too irritated when journalists conflate the two. To avoid that the employer has to dismiss with notice, or at least with a suitable payment in lieu. In some cases even that is not possible. It is not unknown for very senior employees to obtain an injunction preventing dismissal before proper procedures have been followed. This all depends on the terms of the contract which for senior (or very high profile) individuals can be quite complex.

So taking all of these issues together, how well did the BBC do?

As far as I can tell, allegations about Edwards surfaced in the summer of 2023 and he was taken off air in July. At that time the indication was that this was not being treated as a criminal matter by the police and Edwards himself started receiving medical care and may have been hospitalised. In those circumstances it is difficult to see what could be done. The allegations were being made from someone outside the organisation and related to alleged behaviour that took place outside work. The BBC would of course want to investigate matters but it would be difficult to do so quickly. Most employers would want to know more about the health of the employee before interviewing them about the allegations, even if that meant delaying matters. Realistically it is also harder to progress an investigation over the summer holiday period.

It is not clear that those allegations would have been sufficient to lead to dismissal. The situation changes, however, when Edwards is arrested in November 2023 (but not charged) for offences which eventually led to his conviction. Assuming the BBC knew about the arrest and the broad nature of the allegations that were being made, they would want to decide what this meant for his future. With hindsight it might seem obvious that he would have to go, but it is reasonable to expect the BBC to take some time to assess what the situation was and how the case was likely to proceed. Was Edwards going to accept guilt or claim that he was completely innocent? Was he the victim of a tabloid smear campaign and did that mean that the BBC should stand by him? Was he available for interview and what was he prepared to say? Finally, what were the terms of his contract and what did it say about his notice period?

In the event he resigned in April – before he had been charged with any offences. We don’t know whether that was something he decided out of the blue, or whether it was the result of discussions with his employer. It was reported at the time, however, that he was not ‘paid off’. It looks as though he was paid through to April 2024 but not beyond that. If that is so then it is likely that he resigned without notice – or perhaps had given his notice to the BBC some weeks or months earlier.

Some employers worry about accepting a resignation in these sort of circumstances. But they don’t really have the option of refusing if the employee gives notice. Employees are entitled to resign if they choose to do so. Where there is a safeguarding issue, the employer might need to carry on with an internal investigation until it reaches its conclusion and can decide whether or not it needs to make a referral to the Disclosure and Barring Service, but that is not a factor in Huw Edwards’ case. From a strictly legal point of view the employee choosing to resign is a good thing as it reduces the risk of any legal challenge and saves the employer from having to make a potentially unfair decision to dismiss.

I note that the BBC has apologised for the way in which it handled the initial allegations – which did not lead to criminal proceedings – in May of last year. No doubt there are lessons to be learned and things they can improve. But on balance I think the BBC have reason to be pretty satisfied with how the employment question was resolved. A lot has been made of the amount that Edwards was paid while he was off air – but we have to remember that he was a highly paid individual and a few months pay will inevitably add up to a hefty sum. It is better to look at how long he was paid for and whether things could have been dealt with more quickly. From that point of view we can see that a serious allegation made in November 2023 led to a resignation in April 2024 with no additional sum being paid in settlement. Given the high-profile nature of the case and seriousness of the allegations Edwards faced, I think that is a pretty good result for the BBC. Many employers I know will be envious of how quickly and (relatively) cheaply the issue was resolved.

Posted in Uncategorized | Tagged BBC, business, employee, employment, employment-law, human-resources, huw-edwards, sosr, Unfair Dismissal | 2 Comments

Abolishing the qualifying period for unfair dismissal

Posted on July 17, 2024 by Darren Newman

I love a State Opening! I am an absolute sucker for a man in tights carrying a stick with a Cap of Maintenance on the end even though no-one seems very sure why he is doing that. I also like the subtle symbolism of how the Lord Chancellor kneels before the King as if being highly deferential but then hands him a speech written by the Government that he is obliged to read out word for word.

It has been a while since the actual text of a King’s (or Queen’s) Speech has held any interest for employment lawyers. The last Government reformed employment law by supporting a number of small Private Members’ Bills. And they were all pretty modest in their scope. But in this year’s King’s Speech we get the announcement of a full-on Employment Rights Bill that looks set to be the biggest employment law bill since 1975. To go along with the Speech itself, the Government published background briefing notes which set out in a bit more detail what is to be included. Those notes reiterate the commitment to ‘Labour’s Plan to Make Work Pay’ that I’ve picked apart in several earlier posts. The Employment Rights Bill, the notes say, “will deliver on policies as set out in the Plan to Make Work Pay that require primary legislation to implement”

For me that raises a question about how one of the key policies is to be delivered. As we all know, the Government intends to make unfair dismissal a ‘day-one right’, abolishing the current requirement for employees to have two years’ continuous service before they can claim that their employer has acted unreasonably in dismissing them.

(If the qualifying period is abolished altogether, the employee may not even need to make it to day one. A dismissal is the termination of the contract of employment by the employer. There is no reason why a dismissal could not occur after the contract has been entered into but before the employee has actually started – see Sarker v South Tees Acute Hospitals NHS Trust. But perhaps we shouldn’t go down that particular rabbit hole just yet.)

The change itself is simple enough – but when will it happen? If the abolition of the qualifying period is a measure to be included in the forthcoming Employment Rights Bill then it obviously won’t come into effect until the Bill has been passed – well into next year. The Government is committed to introducing the Bill within 100 days but it will take a good few months for such a large Bill to make its way through Parliament.

But the change could happen more quickly than that.

The qualifying period is found in S.108(1) of the Employment Rights Act 1996. Under S.209 of the Act ministers have the power to “vary or exclude” the operation of that provision by Order. So, in 1999 the qualifying period was reduced from two years to one year and then in 2012 it was put back up to two years. Neither change required an Act of Parliament – just a Statutory Instrument approved by Parliament. If the Government wanted to, it could remove the unfair dismissal qualifying period almost immediately. Indeed there is an argument for acting quickly. It isn’t necessarily a good idea to give employers lengthy notice that they are about to lose the right to dismiss – with impunity – employees with less than two years’ service. You may cause a rush!

But what might prevent a quick and clean removal of the qualifying period is the question of probation periods. The background notes to the Kings Speech say: “We will continue to ensure employers can operate probationary periods to assess new hires”. That was also a point emphasised in “Labour’s Plan to Make Work Pay” What exactly does it mean?

If there were no qualifying period for unfair dismissal I would expect case law to develop setting out standards of fairness in the operation of probationary periods and dealing with when an employer can reasonably decide that an employee should not be confirmed in the post. That would take some years however and the Government are clearly suggesting that they will do something more proactive than just allowing case law to develop. Perhaps there will be a code of practice? Tribunals will have to then take that into account when deciding whether an employee who has failed probation has been fairly dismissed or not. Alternatively the Government could legislate to provide for a different test of reasonableness when dismissing an employee during probation. But if that is the plan then the abolition of the qualifying period will need to wait until the Bill is passed and will only come into force sometime next year. The Government might also choose to formally abolish the qualifying period by repealing S.108 altogether. That would mean that any subsequent Government would not be able to just reintroduce it with a Statutory Instrument, but would have to take the time and trouble to amend the Employment Rights Act all over again.

We should find out soon just how fast the Government is prepared to move in making the changes it is proposing. But my guess would be that the two year qualifying period will be sticking around for a good few months yet.

…

Now that I’ve said that, we’ll probably see a statutory instrument within days. Just you watch!

Posted in Uncategorized | Tagged Day one Rights, employee, employment, employment-law, King's Speech, Labours Plan TO make work Pay, New Deal for Working People, news, politics, qualifying period, Unfair DImsissal | 3 Comments

The Future of Agency Workers

Posted on July 8, 2024 by Darren Newman

Labour’s manifesto promised that the new Government will introduce legislation on employment law within 100 days. I’m not sure if the clock is ticking yet. Did they mean 100 days from the election or 100 days from the King’s Speech on 17 July? Let’s just say the deadline is around the end of October and not worry too much about counting the days.

In this post I want to look at an area that I don’t think has been fully addressed in Labour’s key policy document on employment law – Labour’s Plan to Make Work Pay. That is the issue of agency workers.

An agency worker is someone in a triangular employment relationship. An end user hires an agency to provide them with a worker on a temporary basis. The worker has no direct contract with the end user but does have a contract with the agency. Agency workers have specific rights under, for example, the Working Time Regulations and the Agency Worker Regulations. They also enjoy a range of other rights including protection from discrimination and harassment and entitlement to the National Minimum Wage. In most cases, however, they are not employees and so do not have protection against unfair dismissal. They are usually engaged by the agency on the basis that they may be offered work with various clients, but there is no obligation on the agency to find them an assignment. So if an end user no longer wants them, they can find themselves with no work to do and no right to be paid anything even though they remain ‘on the books’.

With some exceptions, agency workers are not employees. The triangular nature of their work (their work is controlled by the end user, but they are paid by the agency) means that neither their relationship with the end user nor the agency is one of employer-employee. The case law has wobbled on this issue in the past but for a good few years now this has been the accepted position. Even agency workers who have been engaged on the same assignment for months or years will not gain employment status as a result, provided the arrangement with the agency is genuine and not a sham.

So what happens to agency workers under Labour’s plans? Curiously, ‘Labour’s Plan to Make Work Pay’ only mentions them once – in the context of repealing the Regulations introduced when Boris Johnson was Prime Minister that allowed them to be used to replace strikers. Since the High Court ruled that those Regulations were unlawful however, I don’t think that policy makes much sense. The Regulations have already been ‘quashed’ (very pleasing word). The last Government was consulting on having them reintroduced but clearly that will not now happen.

But the position of agency workers will certainly be affected by the proposals that the Government is committed to making. For example, one of the first things the Government is likely to do is abolish the qualifying period for unfair dismissal (this can be done by Regulation so there is not need to wait for an Act of Parliament to make the change). That will certainly make some employers feel more nervous about recruiting untested new staff. One response employers might have is to hire someone as an agency worker first and confirm them as an employee when they are confident that they will be a good fit. If it doesn’t work out, they can end the assignment after 6 months or so and the agency worker will not be able to claim unfair dismissal. Would that work?

Well, the Government is also proposing to move to a ‘single status of worker’. So that would imply that agency workers – unless there was an exception carved out for them – would qualify for the same rights as everyone else and would be able to claim unfair dismissal after all.

But who would they claim against? They do not have a contract with the end user – they have a contract with the agency. So it is difficult to see how the ending of an agency work assignment could count as a dismissal by the end user. Would they have been dismissed by the agency? Well the agency would presumably say they have not been dismissed at all. Their contract with the agency is still in place. – they just don’t have an assignment for them at the moment and they can stay on the books until one comes up.

But the Government is also pledging to ban ‘exploitative zero hours contracts’ – would that include situations like this one? Workers would be entitled to a contract based on the average of their previous 12 weeks of work. Would that apply to agency workers? How could it? It’s all very tricky.

None of this is a criticism of the manifesto. The proposals that Labour made were actually very detailed and precise by the standards of political parties setting out their policies before an election. But as the Government translates its political policies into actual legislation, these issues will need to be considered and dealt with. This is just one area among many where a lot of work will have to be done in working out the detail. Given the timetable Labour set itself, and the sheer scale of what else is being proposed, they will have to move quickly.

Over the past 14 years we have become used to modest incremental changes in employment law being introduced at a snail’s pace. The 2019 Conservative manifesto promised to introduce carer’s leave and all that amounted to was one week of unpaid leave that was eventually introduced four years later. Frankly it’s been a dull few years as far as employment law goes. I just can’t emphasise enough that things are about to change.

Strap in.

Posted in Uncategorized | Tagged agency workers, Labour Government, new employment law, Unfair Dismissal | 1 Comment

Labour’s Plans for Employment Law – Other Stuff

Posted on June 12, 2024 by Darren Newman

I’ve now written three posts setting out Labour’s plans for employment law set out in its document “Labour’s Plans to Make Work Pay”. I’ve looked at trade union law, individual employment rights and equality and family-related issues. Ahead of the manifesto publication tomorrow (and I’m very much assuming that we won’t see any backtracking on what Labour is proposing) I wanted to round off the series with proposals that I overlooked or which didn’t easily fit into one of those three posts, but which are still important from an employment law perspective.

So what did I miss?

Third-party harassment

In my post looking at Labour’s equality law proposals I missed its position on third-party harassment. This is where an employee is subjected to harassment at work by someone other than a fellow employee – such as a customer, client or member of the public. The current position (and this has fluctuated over the years) is that an employer is not liable for harassment of its employees carried out by third parties. The current government supported a private members bill which became the Worker Protection (Amendment of Equality Act 2010) Act 2023 which initially extended liability for third-party harassment unless the employer had taken all reasonable steps to prevent it. But following back-bench opposition the Bill was watered down in the House of Lords and that provision was removed. Labour say they will “require employers to create an maintain workplaces and working conditions free from harassment, including by third parties”. I take that to mean that some form of liability for third-party harassment will be imposed – although you could also read that sentence as merely referring to an extension of the 2023 Act’s duty to take reasonable steps to prevent sexual harassment. We shall see.

Minimum wage

The introduction of the National Minimum Wage in the first term of Tony Blair’s administration has to count as Labour’s most successful employment law reform. It was initially opposed by the Conservatives, but by the time David Cameron became Prime Minister it was simply accepted as an established feature of work in the UK.

One way in which Labour ensured the wide acceptance of the minimum wage was the creation of the Low Pay Commission which was tasked with making recommendations as to what the level of the minimum wage should be. It makes those recommendations based on the remit given to it by the Government. So at first Labour was very cautious about the level of the minimum wage and the remit stressed the importance of setting the NMW at a level that did not threaten jobs. It was George Osborne as Chancellor who changed the remit to ask the Commission to move towards a rate based on median earnings and in 2019 the remit was set so that workers aged 21 or over should enjoy a Minimum Wage of two thirds of median earnings by 2024, taking into account economic conditions.

Labour proposes to change the remit so that “alongside media wages and economic conditions, the minimum wage will for the first time reflect the need for pay to take into account the cost of living”. This is obviously aimed at moving the rate of the minimum wage closer to the “Real Living Wage” set by the Living Wage Foundation. It has to be said that the gap between the Minimum Wage for those 21 and over (currently £11.44) is not too far short of the real living wage – at least outside London – of £12. So this change does not seem very dramatic. Whether the remit would survive an economic shock leading to a significant rise in the cost of living and a return of high inflation is of course another matter.

A change to the Low Pay Commission’s remit does not require legislation so it can be implemented very easily. Labour also proposes however to “remove the discriminatory age bands to ensure that every adult worker benefits”. There are currently three minimum wage rates. Those aged 16-17 are entitled to £6.40 per hour, those aged 18-20 get £8.60 and for those aged 21 and over the rate is £11.44. So presumably Labour could paln to keep the 16-17 year old rate, but abolish the rate for 18-20 year olds. That is an easy step to take and can be done by Regulation. It is not clear from the document whether the Apprentice rate of £6.40 will remain given that many of those on apprenticeships are 18 or over.

Labour also says that they will ban unpaid internships “except when they are part of an education or training course”. I’m not sure what that law would look like. If interns are doing work for the employer – if they are ‘workers – then they are likely to be entitled to the minimum wage in any event. Defining what an internship actually is – and distinguishing it from a work experience placement – might prove tricky.

Adult social care

The Labour Party manifesto for 2017 promised to “roll out sectoral collective bargaining”. What that meant was that collective agreements reached at a sectoral level (for example, in the chemical industry or the retail sector) would automatically apply to all employers operating within that sector. That is a system common in Europe but radically different from the UK approach which is to allow individual employers to make their own arrangements for pay – either with or without input from unions.

In ‘Labour’s Plans to Make Work Pay’ the Labour Party does not abandon this aim altogether – stressing the importance of collective bargaining in in helping companies and workers ‘adapt to the new world of work’. But its specific policy proposal is to start with a “Fair Pay Agreement” in the adult social care sector. The idea would be that a new negotiating body would be set up for the sector and that agreements reached through that body would then be applied to the individual employers within it. When this is up and working Labour will then look at seeing what other sectors would benefit from the same approach.

From a legal point of view this is quite straightforward. The idea that minimum terms and conditions would apply in particular sectors was a feature of UK employment law for much of the Twentieth Century up until the final abolition of wages councils under the Thatcher governments. Adult social care seems a good sector to start with because it is easy to define – being regulated by the Care Quality Commission – and is characterised by low pay and a large number of small employers with little scope for union recognition at a company level. Setting up the system and reaching an agreement seems to be the key challenge and I cannot see any prospect that Labour would be in a position to roll out the arrangement to other sectors within its first term. If the idea catches on, however, it could herald a serious shift in our system of industrial relations.

Enforcement

Everyone seems to agree that employment law should have a ‘single enforcement body’ – it was even pledged in the 2019 Conservative manifesto (page 39). Labour proposes to st up a body “to enforce workers’ rights, including strong powers to inspect workplaces and take action against exploitation”. Labour says that it will have “ the powers it needs to undertake targeted and proactive enforcement work and bring civil proceedings upholding employment rights”. The crucal question here is what resources this body will have. If it is to conduct workplace inspections, how many inspectors will it be able to employ? How many cases will it be able to bring and what rights will it be able to enforce? Will it be limited to minimum wage violations or will it also be able to enforce rest breaks and holiday entitlement? Unlike other employment-law proposals Labour is making, this has direct public spending implications. I will not get too excited about this new body until I see how big its budget is.

Procurement

Labour pledges to bring about the ‘biggest wave of insourcing of public services in a generation’. This is not really an employment law measure and public sector procurement is a subject all of its own. However, Labour will reintroduce the ‘two tier’ code of practice that was scrapped by the Coalition Government in 2010. The Code was aimed at closing what was seen as a loophole in the TUPE protection that governed services that were contracted out to the private sector. Employees who were transferred would have their terms and conditions protected, but if new employees were recruited who had not been employed prior to TUPE the employer was free to pay them less than the transferred staff. Over time this would erode the pay and conditions of employees in contracted out services and so a Code of Practice was introduced requiring public bodies to insist that contractors did not employ people to work ‘alongside’ those who had transferred across on less favourable terms and conditions. It was frankly a rather vague requirement – we never quite figured out what ‘alongside’ meant – and not easily enforced. Labour say they will ‘strengthen’ the Code rather than just reintroduce it, so it will be interesting to see what that means.

Enough to be going on with?

I think I’ll stop there. There are other bits and pieces that I haven’t gone into and Im sure I’ve missed out proposals that will turn out to be quite important.

The point is this: there is a lot of new employment law coming our way. Unless the polls are wrong to such an extent that the whole polling industry will be plunged into an existential crisis, the next five years will see fundamental changes to the relationship between employers, workers and trade unions. Personally, I would be surprised if Labour managed to get through everything set out in their policy document in five years. So one of the things I will be watching for in the manifesto is whether it gives any clues as to how they will prioritise the work. Out of the 40 or so specific measures that they have committed to, what are they key things that they will move on in the first year?

My guess – and I have no inside knowledge on this – is that a Trade Union Bill repealing the Trade Union Act 2016 and the Strike (Minimum Service Levels) Act 2023 could be introduced really quite quickly. The proposals on union recognition and industrial action are quite complex and would take some time to develop, but perhaps the Bill would create regulation-making powers so that they could be addressed separately? Meanwhile the Government could start consulting on issues like zero-hours contracts and fire and rehire while they worked up some specific proposals. Abolishing the qualifying period for unfair dismissal can be done by Regulation – but introducing specific provisions on probation periods would have to be done in an Act of Parliament wand would take up Parliamentary time.

The last about Government was elected on 1 May 1997. The National Minimum Wage Act received Royal Assent on 31 July 1998. The statutory union recognition procedure and most other individual employment rights such as the right to be accompanied and protection against dismissal for striking workers were introduced by the Employment Relations Act 1999 which was given Royal Assent in July of that year – more than two years after the election. This sort of thing takes time – it would be a huge mistake to get fixated on getting things done inside the first 100 days or other such arbitrary timetable.

In any event, I should try not to get ahead of myself. No votes have been cast yet. But while the press might talk about Labour’s ‘watered down’ proposals on workers’ rights, I think those of us who work in this area need to appreciate the scale of the change that is (probably) about to come – albeit not as quickly as some would like.

Posted in Uncategorized | Tagged employment-contract, general election, Labour Party; Labour manifesto, minimum-wage, news, politics, trade unions | 1 Comment

Labour’s Plans for Equality Law

Posted on June 4, 2024 by Darren Newman

Labour’s policy document published at the beginning of the election campaign – “Labour’s Plan to Make Work Pay” – has so much detail in it that I have already written about it in two posts. The first looked at trade union law and the second looked at individual employment rights. In this post I’m going to look at Labour’s proposals for amending the Equality Act and a series of other measures that loosely fall within the category of ‘family-friendly’ rights.

First something that it appears Labour is no longer proposing. I have previously written about two proposals Labour had made to extend the Equality Act provisions on equal pay to the protected characteristics of race and disability and to enact S.14 of the Act which deals with ‘dual discrimination’. Both proposals were, in my view, very bad ideas and it is worth noting that neither are mentioned in this new document. I hope they have now been dropped and we can all carry on like that never happened.

As for what they are proposing, I’ll deal with each topic in the order in which it appears in the Labour document.

Flexible working

Labour was responsible for the introduction of the right to request flexible working in the Employment Act 2002. It has proved to be a popular right and has been significantly extended under subsequent Conservative governments. The most recent extensions of the right – making it a ‘day one’ entitlement and reforming the procedure for making a request – came into force at the beginning of April this year.

Labour proposes to bolster the right still further by “making flexible working the default from day one for all workers, except where it is not reasonably feasible”. That word ‘default’ is carefully chosen. In 2019 the Conservative manifesto said

We will encourage flexible working and consult on making it the default unless employers have good reasons not to.

The recent changes that we have seen were clearly intended to meet that commitment – but it is very hard to argue that the minor procedural amendments that were made by the Employment Relations (Flexible Working) Act 2023 amount to making flexible working the ‘default’ option.

The central issue with the right to request flexible working is that although the employer can only refuse the request for business reasons, the law requires the employer to be sincere rather than reasonable. As long as the reason given is genuinely the reason for refusal and as long as any facts cited by the employer are true, there is no room for arguing that the decision itself is an unreasonable one. Labour’s proposal seems much more explicit that the right will be reformed to introduce this element of reasonableness to the process, making it harder for an employer to refuse requests and easier for employees to succeed in their claim.

Maternity discrimination

It is automatically unfair (as well as discriminatory) to dismiss an employee because she is pregnant. Labour proposes to make it “unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances”. Ignoring the bad writing (six months after her return, the woman will no longer be pregnant) what is this proposal getting at?

Article 10 of the EU Pregnant Workers Directive says that member states (I know we aren’t one, but bear with me) must prohibit the dismissal of workers from the beginning of their pregnancy to the end of their maternity leave “save in exceptional cases not connected with their condition”. It was sometimes argued in employment law circles that UK law did not really implement this requirement because pregnant employees had no special protection against dismissal provided they were not dismissed because of their pregnancy. There was of course a duty to offer suitable alternative work (when available) to an otherwise redundant employee on maternity leave, but no protection against redundancy per se.

As it happens the European Court of Justice ruled in 2018 that Article 10 was concerned with dismissals for reasons connected with pregnancy and did not prohibit, for example, a redundancy that was in no way related to the employee’s condition. Nevertheless, the idea that a pregnant employee’s protection against dismissal was insufficient under the current law has taken root. Labour’s proposal is to allow the dismissal of pregnant (and newly returned) employees in ‘specific’ circumstances but does not specify what those circumstances would be and there is no suggestion that they would need to be exceptional. I suspect that what this will turn into is a requirement for employers to demonstrate the dismissal of such an employee is genuinely for a reason that is nothing to do with pregnancy or maternity. Since employers should, if they have any sense, already be incredibly careful about dismissing employees in these circumstances, I don’t think a change along these lines should cause too much difficulty.

Bereavement leave

Labour pledges that it will introduce the “right to bereavement leave for all workers”. We don’t get any more details about that. Currently there is a right to parental bereavement leave which is two weeks of unpaid leave for parents who suffer the death of a child so perhaps Labour simply intends to widen the right to cover the loss of any close relative. The introduction of a right to unpaid bereavement leave would not have much of an impact as few people are in a position to take it – and in the context of bereavement, employees with no right to paid leave are often signed off sick for a period in any event. We will have to wait and see whether there is any paid element to the leave that Labour introduces.

Equal pay

Of all the proposals Labour is making, this is potentially one of the most significant:

Labour will put in measures to ensure that outsourcing of services can no longer be used by employers to avoid paying equal pay

What does that mean? Older readers may remember the equal pay crisis that swept local government in the noughties, the ramifications of which are still being felt today (ask anyone in Birmingham). Those cases would typically involve employees in female dominated occupations such as school catering assistants or office cleaners claiming equal pay with male dominated occupations such as maintenance workers. One issue that determined the extent to which an individual council was ‘hit’ by such claims as the extent to which it had contracted out its services to the private sector. This is because to claim equal pay you must be in the ‘same employment’ as your comparator – or at the very least there must be an employer who is the ‘single source’ of the difference in pay and in a position to eliminate it.

So if a council had outsourced its school catering assistants or cleaners to a firm like Rentokil or Compass, those employees would not be able to bring claims because their pay was determined by their employer rather than the council. On the other hand, councils that ran their own services remained vulnerable. As a result we were more likely to see large scale equal pay claims in Labour run councils that had resisted contracting out rather than Conservative councils that revelled in it. Is Labour going to change the Equality Act so that an employee in a contracted-out service can claim equal pay with workers directly employed by her employer’s client? That is how I read their proposal and if that is right, it is a very big deal.

Public-sector duties

The reason the Equality Act is called the Equality Act is that one of the key measures it was intended to introduce was a duty on public bodies to have regard to the desirability of exercising their functions “in a way that is designed to reduce the inequalities of outcome that result from socio-economic disadvantage’. However, the Act was only passed in the wash-up before the 2010 General Election and the new coalition Government, not being a fan of this measure, did not bring it into force. While the duty does now apply in Scotland and Wales – it is not yet in force in England. Labour proposes to bring it in.

I’m not terribly excited about that – I’m not a big fan of the public sector equality duties. They strike me as something of a tick box exercise. They may be useful in seeking the judicial review of decisions you don’t like, but I’m not convinced that they really do that much to eliminate discrimination or promote equality.

Nevertheless Labour reaffirms its commitment to the existing public sector equality duty – a duty on public authorities to have ‘due regard’ to the need to eliminate unlawful discrimination. Given that, there is one thing not mentioned in Labour’s document that I think will be worth watching. Under the Equality Act the Secretary of State has the power to impose specific duties on public bodies to help them further their general duty to promote equality. Again this fell to be implemented by the new Government in 2010 and the specific duties imposed by the then minister for Women and Equality Theresa May were, to say the least, modest. But a Government that actually believed in the duties would be able to put this power to much more extensive use. Could we see specific equality targets being set for the public sector?

Pay gap reporting

I have often said that my nightmare for employment law is that it eventually turns into a series of rights to request things and duties to report things. I’ve also been sceptical in the past about the duty on large employers to report their gender pay gap. Labour proposes to add a duty on employers to publish ‘action plans’ on how they will close their gender pay gaps – which is odd, because having a gender pay gap isn’t illegal so there is no duty to actually seek to close it.

Labour also proposes to introduce new duties for large companies to report their ethnicity and disability pay gaps. This will cause all sorts of problems. The issue of ethnicity pay gap reporting was consulted on under Theresa May’s administration and the consultation document very fairly set out the many reasons why this is a more difficult duty to implement than gender pay gap reporting. Let’s see how a Labour Government (if there is one – should I keep saying that?) gets to grips with the issues.

Menopause

How employers support employees going through the menopause is increasingly talked about in HR and employment law circles (I wrote about the issue of disability and the menopause here). Labour would introduce a duty on employers with more than 250 employees to produce menopause action plans “setting out how they will support employees through the menopause, much like gender pay gap action plans”. Another duty to produce a report on something – I’m not a fan.

Time limits

One proposed reform that will apply to all Tribunal claims – but which feels particularly relevant in the case of discrimination – is to increase the time limit for bringing an employment tribunal claim from three months to six months. This should be welcomed. A three-month time limit is absurdly short. A six-month time limit still gives employees little opportunity to resolve matters internally or gather evidence that might indicate that they have a claim before committing themselves, but it would undoubtedly be an improvement

…still not finished.

This is my third post and I still haven’t covered everything Labour is proposing for employment law. I think one more ‘mop up’ post should do it. I can’t stress enough that the sheer volume of what Labour is means that implementing it all in one go is just not an option. In fact, I would be really surprised if they managed to legislate for everything they have promised to do in employment law within a first term. A key question for the next two to three years is what issues will Labour prioritise? I hear that the manifesto is due on 13 June – perhaps that will give us a clue?

Posted in Uncategorized | Tagged business, discrimination, employment, employment-law, equality law, general election, Labour Party Employment law proposals, news | 1 Comment

Labour’s Plans for Employment Rights

Posted on May 30, 2024 by Darren Newman

In my last post I looked at the new measures Labour is proposing in the field of trade union law. In this post I am going to look at individual employment rights, with proposals on discrimination and family-based rights coming next.

It is the proposals on individual rights that have attracted the most press scrutiny – and frankly it is the area where I think civil servants will have their work cut out for them to come up with coherent legislation that will achieve the policy goals that Labour is setting out. So in this area it is important to look not just at what Labour says it is going to do, but also think about what they may actually end up doing given the difficulties that some of their proposals might encounter.

I’m going to take their proposals in the order they are given in their latest policy document “Labour’s plans to make work pay”.

Zero hours contracts

So this is a tricky one. In a recent post I suggested that Labour’s policy was shifting on this issue and that does seem to be confirmed by the new document. Here is what Labour says it policy now is:

Labour will end ‘one sided’ flexibility and ensure all jobs provide a baseline level of security and predictability, banning exploitative zero hours contracts and ensuring everyone has the right to have a contract that reflects the number of hours they regularly work, based on a twelve-week reference period

There is a lot to unpack there. But note the work that the word ‘exploitative’ is doing in that paragraph. You could, if you wanted to, read that to mean that zero hours contracts are exploitative and so Labour will ban them. But I think in context what is really meant is that Labour will seek to ban those zero hours contracts that are exploitative. Non exploitative zero hours contracts will remain lawful.

How do we tell the difference between exploitative and non-exploitative zero hours contracts? Perhaps the clue is in the reference to ‘one sided’ flexibility. That refers to a situation where the employer does not guarantee that any hours will be provided but the worker is obliged to be available for any work that is offered. That situation would strike most people as unfair. Back in 2016 I wrote about the “availability provision” that was introduced in New Zealand. Perhaps Labour is thinking about introducing something similar here?

The idea of basing a worker’s guaranteed hours on their working pattern over a twelve week reference period strikes me as fraught with difficulty. Will that be a rolling requirement? Will employers have to keep adjusting contracts for employees to reflect their most recent working patterns? The document talks about having the ‘right’ to such a contract. Does that mean it will be based on some sort of right to request – perhaps using the right to request predictable hours created by the Workers (Predictable Terms and Conditions) Act 2023? Presumably there will be exceptions where there are good reasons why the work done in the previous 12 weeks will no longer be available? And how do you prevent employers from taking care to ensure that workers are not given regular hours in order to avoid having to formalise that working pattern in a contract? Could the new right just create an incentive to keep a worker’s hours as unpredictable as possible?

I don’t expect all of these questions to be answered in a general election campaign. The new document commits a Labour Government to a full process of consultation on the details and implementation of its proposals. Here is just one area where there will be a lot of work to do in coming up with workable – and meaningful – legislation.

Fire and rehire

Here is another area where it is easy to set out a policy, but much harder to frame workable legislation that achieves it. Here is Labour’s position:

Labour will end the scourges of ‘fire and rehire’ and ‘fire and replace’ that leave working people at the mercy of bullying threats. We will reform the law to provide effective remedies against abuse and replace the inadequate statutory code brought in by the Government, with a strengthened code of practice. Ending fire and rehire means workers can be safe in the knowledge that terms and conditions negotiated in good faith can’t be ripped up under threat of dismissal.

Hand on heart, I’m not sure I understand what is being proposed here. The Code of Practice being referred to (which will come into force during the election campaign) is indeed pretty tame. A stronger code stressing that dismissal for refusing to agree new terms and conditions would only be fair when the business is at genuine risk if the changes are not made and all other alternatives have been explored would be one way of shifting the dial and making it harder for employers to justify going down that route. Some time ago Alan Bogg of University of Bristol wrote about how a policy aimed at ending fire and rehire could be translated into legislation. It’s a really good explanation of the legal options available.

My problem with the proposal is that unless you also make it harder to make employees redundant, I don’t see how you can ban “fire and rehire” without creating an incentive for employers to go down the redundancy route. The real problem here is that the ‘range of reasonable responses’ test makes it difficult for Tribunals to rule that business decisions made by employers are unreasonable with the result that unfair dismissal has effectively become a law about how an employee is dismissed rather than why (discuss). Without fundamentally changing the way in which Tribunals decide whether or not all dismissals are fair or unfair I think it is difficult to come up with a coherent set of proposals focussing purely on fire and rehire. Obviously this is something we are going to come back to (if the polls are right).

Day one rights

This has been a theme of Labour’s employment law policy for some time. Here is what they say:

Our New Deal will include basic individual rights for day one for all workers, ending the current arbitrary system that leaves workers waiting up to two years to access basic rights of protection against unfair dismissal, parental leave and sick pay.

That is a very badly written paragraph which on a first reading makes it sound like Labour aims to protect workers against sick pay. What it means, however, is that the qualifying period for unfair dismissal and parental leave will be abolished. There isn’t a qualifying period for Statutory Sick Pay but Labour says elsewhere that they will remove the three day ‘waiting period’ before SSP is payable.

There is currently a one year qualifying period for parental leave. It is quite a complex right giving parents a right to take up to 18 weeks’ leave – at the rate of no more than four weeks’ a year – for each child over the course of their childhood. But since the leave is unpaid, there is relatively little take up. I doubt many people will get excited about the removal of the qualifying period.

As for unfair dismissal however, the abolition of the qualifying period will be a huge deal. I wrote about Labour’s proposal in September last year and took the view that eventually Labour would settle on a six-month qualifying period. I don’t think that is still an option for them – they are clearly committed to scrapping the qualifying period altogether.

The abolition of the qualifying period for unfair dismissal can be done quickly with just a statutory instrument. But Labour does seem to want to add provisions into the Act around probationary periods. They say that they “will ensure” that employers can operate fair and transparent probationary periods which suggests that they won’t simply be leaving it to Tribunals to work out when it is fair to dismiss an employee for failing to pass probation. Exactly how those provisions are drafted and the extent to which the employer will have to justify a decision not to confirm an employee in post will be one of the key issues that employers will want to be consulted on by a new Labour Government.

Single status of worker

Labour says that it will “move towards” a single status of worker and “transition towards a simpler two-part framework” that distinguishes between those in employment and those who are genuinely self-employed. This would be a huge structural change to the way in which employment law works and there is a clear suggestion here that Labour is in no hurry to move this forward. I think it ultimately makes sense to have a law under which everyone who is ’employed’ has the same rights. But that would make the boundary between those who are employed and those who are not particularly important. If everyone who currently counts as a ‘worker’ had the right to claim unfair dismissal and redundancy, would that affect how Tribunal’s view arrangements that were finely balanced? It would also seem very odd if workers who now qualified for full employment rights continued to be taxed as self employed. On balance I doubt this will form part of Labour’s first big bill on employment rights – but it is clearly an issue that we will return to at some point. Let’s just park this idea for now.

Overview

While Labour’s proposals on trade unions and industrial relations – though controversial – seem largely straightforward to me, their policies on individual employment rights will need a lot of work before they can reach the statute book. “This new document “Labour’s Plan to Make Work Pay” emphasises their commitment to engaging with all stakeholders in consultation before finalising their proposals, and this will take time. I suspect that what we might see is a Bill dealing with trade union issues brought forward quite quickly in the first session of Parliament while other issues are deferred to later. There is surely too much being proposed here for the Business Department (whatever it is called under a Labour Government) to get it all through in one go. If Labour is elected I think we will be looking at employment law changes spread out across their first term.

We still aren’t done. In my next post I’ll look at what labour is proposing in relation to discrimination law and family-related rights.

Posted in Uncategorized | Tagged economy, employment, Labour Party Employment law proposals, labour-law, news, politics | 5 Comments

Labour’s Plans for Trade Union Law

Posted on May 27, 2024 by Darren Newman

I refuse to believe that Sharon Graham, General Secretary of the Unite the union is genuinely unhappy about Labour’s plans for employment law. An updated plan was published by the Labour party on Friday and she was reported as saying that it had “more holes than Swiss cheese” and that it was in danger of becoming a “bad bosses charter”. If she genuinely thinks that then this is a bizarre reaction to the most union-friendly manifesto for employment law that has ever been put forward by a party that is actually expected to win an election.

Press attention seems to have focussed on the caveats that have been asserted around the proposal to ban “fire and rehire”. It is true that I struggle to make sense of what is actually being proposed in this area. I would also agree that the proposal on zero hours contracts has clearly been watered down (I discussed this recently). But it would be a mistake to concentrate too much on these proposals and ignore the other measures (more than 30 of them) that a Labour government would bring forward.

In this post I want to focus purely on the area of trade union rights, industrial action and union recognition. What Labour has committed itself to doing in this area would transform the industrial relations landscape in Great Britain.

The overall thrust of the policy is to reverse what is described as the Tories’ “scorched earth” approach to industrial relations and introduce a new regime based on “good faith negotiation and bargaining” ushering in “a new partnership of cooperation between trade unions, employers and Government”. What will that mean in practice? Well strap in.

Union access to the workplace

One issue for unions seeking to organise and recruit new members, is gaining access to workplaces where they have yet to be recognised. A Labour government would “act to ensure that union members and workers are able to access a union at work through a regulated and responsible route where there is support within the workplace”. Exactly what that would look like in terms of legislation is not clear – perhaps it is something that the Central Arbitration Committee would be able to order when there was some support for the union but not enough to trigger full recognition. But significantly “Labour will introduce rights for trade unions to access workplaces in a regulated and responsible manner, for recruitment and organising purposes”. Employers will also be placed under a duty to inform staff of their right to join a trade union. This will be something that will have to be included in the written statement of terms and conditions that must be given to all workers.

Labour then says that it will “enable employees to collectively raise grievances about conduct in their place of work, to Acas”. That’s a bit odd. Acas doesn’t handle grievances from anyone. The document goes on to say “this will be in line with the existing code for individual grievances” which must be a reference to the Code of Practice on Disciplinary and Grievance Procedures. Under that code, of course, the grievance is raised with – and determined by – the employer. Acas isn’t involved. Something has got a bit mixed up here, but I wonder if what lies behind it is a proposal for the right to be accompanied to be extended to collective rather than just individual grievances. Currently, S.10 of the Employment Relations Act 1999 gives individual workers the right to be accompanied by a trade union official at a grievance hearing. When that right was introduced, unions were frustrated that the right was confined to individual rather than collective grievances. If Labour now contemplates requiring employers to hear grievances raised by groups of workers, accompanied by union officials, then that could be really significant.

These measures on their own would amount to a significant package of new rights for unions and their members – but there is more.

Industrial action

Labour will repeal the Trade Union Act 2016. This was the act that introduced turnout requirements for industrial action ballots and increased the notice that trade unions had to give of any industrial action from one week to two. It also placed a six-month time limit on the validity of strike ballots, introduced additional requirements on the wording of the ballot paper and placed additional restrictions on picketing. All of these will go.

The Strikes (Minimum Service Levels) Act 2023 will also be repealed. It’s difficult to argue against this because that Act has proved to be hopelessly unworkable. All the same, If I were a union, I’d be glad to see the back of it.

Before taking industrial action, unions have to conduct a ballot of their members. That ballot must be fully postal – which means that the ballot paper must be posted to each individual member who then has to complete the ballot paper and return it by post. For younger readers the “post” is a process by which actual pieces of paper are carried between two people by a company called Post Office Ltd – who you may have read about in the news recently [correction – as pointed out in the comments, it is actually the Royal Mail that handles the post, but the point remains]. You have to pay for each piece of post you send, so organising large-scale strike ballots is a costly undertaking.

Labour proposes to scrap the need for a postal ballot and replace it with a system of “modern, secure, electronic balloting and workplace ballots”. This is a very big deal. Postal ballots are time consuming and expensive. Switching to electronic and workplace ballots will make it much easier to organise industrial action.

The proposal does not come out of the blue. The Trade Union Act 2016 provided for an independent review of the feasibility of electronic ballots and that resulted (in December 2017)) in the Knight Review. Its conclusions were that the world was not yet ready for electronic ballots but that the Government should consider a pilot scheme. The Government, however, never got around to responding. Of course, doubts about the fairness and security of electronic ballots did not stop the Conservative party from using electronic voting to choose Boris Johnson and Liz Truss to be Prime Minister, so it is a little bit hard to argue that it is wrong to use a similar system to allow council workers to decide on an overtime ban.

Union recognition

We still aren’t finished. Labour is also proposing changes to the statutory scheme for union recognition – removing some of the compromises it made when it first introduced the scheme in the Employment Relations Act 1999. Gaining union recognition under the scheme means demonstrating that recognition is supported by a majority of the workers in the relevant bargaining unit. Currently the Central Arbitration Committee may only accept a recognition request as valid if it considers that the majority of workers in the bargaining unit would be likely to favour recognition. This is a decision that must be made before any ballot is organised and Labour proposes to scrap this requirement – making it much easier for a union to obtain a recognition ballot.

In a recognition ballot the current rule is that recognition will be awarded only if it supported by a majority of those voting in the ballot and at least 40 per cent of those entitled to vote. Labour will abolish this threshold requirement and provide for recognition to be awarded where there is a simple majority of those voting. Overall Labour will make it easier for unions to win recognition from a reluctant employer.

Transforming employment law

If I were a trade union leader I would be absolutely delighted with these proposals. They are a million miles away from anything that a Conservative government would do and suggestions that there is no real difference between Labour and Conservative are – in the field of employment law at least – very wide of the mark.

The measures I have outlined in this post would make for a pretty chunky Trade Union Bill. But they are only one aspect of what Labour is proposing. In my next post I plan to look at their plans for individual employment rights. Then I will round off with an assessment of their proposals for discrimination law. I can’t stress enough that the sum total of what Labour is proposing is transformational. Sharon Graham must realise that. Perhaps she is only pretending to be cross in order to help persuade the business lobby that Labour’s proposals have been significantly watered down. If she was jumping up and down with glee, that might not play well in the Daily Mail.

Posted in Uncategorized | Tagged general election, industrial action, Industrial action, Labour proposals, news, politics, trade unions, union recognition, unions | 6 Comments

Ending the “sick-note culture”

Posted on April 22, 2024 by Darren Newman

The Prime Minister gave a speech on Friday proposing to tackle our “sick note culture”. Probably the most significant proposals made were to do with the wider issue of benefits for those were economically inactive because of long-term ill-health. Those issues fall outside my expertise, but the PM also talked about the use of fit notes in the context of employment and that is something I have views on.

I was interested to see that according to the Mail, doctors are about to “lose the power to hand out sick notes”. The idea that doctors have the ‘power’ to issue fit notes made me smile. Most doctors would think of it as a chore rather than a power. If I were to lose the power to do the washing up, I wouldn’t be too upset about it.

By the way, I don’t blame the press for talking about sick notes rather than fit notes. Sick notes were renamed fit notes in 2010 for reasons we will get into – but I’ve never really got used to the new name and it still sounds strange to me. But there does seem to be some misunderstanding out there over what a sick note / fit note actually is. The Telegraph told us:

Sick notes, which were rebranded as “fit notes” in a previous reform, are waivers signed by GPs and other doctors that give someone the right not to go into work.

That is very wide of the mark. A fit note does not give an employee the right not to go into work. It does not, for example, protect an employee from dismissal for poor attendance.

A fit note’s specific legal function is to act as evidence of an employee’s unfitness for work. An employer is entitled to require medical evidence when an employee is claiming Statutory Sick Pay (SSP) and the Statutory Sick Pay (Medical Evidence) Regulations 1985 (as amended) set out the form that the fit note takes. If a valid fit note is produced then the requirement for medical evidence has been met and the employee will be entitled to be paid SSP at the princely rate of £116.75 per week.

Of course many employers pay more than the SSP minimum and will use the fit note as a key part of their absence management process. In this context there is a genuine and long-standing concern that a fit note is simply too easy to obtain and that some doctors regard work as a hazard from which employees should be protected whenever possible. The rebranding of “sick notes” to “fit notes” was intended to address this problem and shift the emphasis from what employees cannot do to to what they can do.

So the modern fit note amounts to advice directed to the employee under which the doctor ticks one of two boxes. The first box says “you are not fit for work” and the second box says “you may be fit for work taking account of the following advice” There is then a section where the doctor can add some specific advice about matters such as a phased return to work or a change in working hours or duties.

In his speech on Friday Rishi Sunak was concerned that this second box was not being used. He said:

“11 million of these Fit Notes were issued last year alone.  But what proportion were signed “maybe fit for work”? 6 per cent. 

That’s right – a staggering 94 per cent of those signed off sick were simply written off as “not fit for work.””

His solution is to “test ..shifting the responsibility for assessment from GP and giving it to specialist work and health professionals who have the dedicated time to provide an objective assessment of someone’s ability to work and the tailored support they need to do so.”

There is certainly something to be said in cases of long-term sickness for seeking the advice of specialists who know about the workplace and can suggest ways in which an employer can get an employee back to work. This is what an occupational health service does and many employers use such services to help them manage long-term sickness absence. It is not something that GPs are trained in and that might be one reason why the second box on a fit note is so rarely ticked.

Back in 2014 the Government tried to address this issue by providing an occupational health service for all employers to use. I was sceptical about its benefits at the time and indeed it was scrapped in 2018 due to a lack of take up. It appears, however, that the Prime Minister wants to have another go and “design a new system where people have easy and rapid access to specialised work and health support to help them back to work from the very first Fit Note conversation.”

But in 2014 the offering was occupational health advice that was in addition to the medical evidence that was provided by the fit note. In his speech, the Prime Minister appears to be suggesting that employees would have to use the new service as a means of obtaining a fit note – that doctors would no longer be the ones providing them.

The idea that that employees should have to go to this new service from the “very first fit note conversation” is just absurd. Would someone who has flu have to use this service? What about someone recovering from surgery? Of the 11 million fit notes issued in a year many if not most will be for straightforward forms of ill-health or injury that require medical treatment and a period of rest and recuperation away from work. There is surely no way the Government are going to require employees to go and use a separate service to certify their unfitness for work in those circumstances.

And of course, many people who are off sick will still need to see a doctor because they are, well, sick. They may be receiving medication or other treatment and the doctor might also give them advice about staying away from work simply as part of their medical care. What happens if the advice given by this new service – perhaps withholding a fit note – contradicts the medical advice given by a doctor? It just isn’t a workable proposal.

Apart from anything else it all seems rather pricey. Who is going to pay for a service of ‘specialist work and health professionals’ to issue 11 million fit notes a year? If employers want help in finding ways to get their employees back into work after a period of sickness or injury then a wide range of occupational health services are available and I don’t see why that should be paid for with taxpayer money.

My idea for reform is rather more straightforward. Let’s just get rid of fit notes altogether and let employers manage and fund their own absence management processes. Why should it be a function of the NHS to determine whether or not an employee is entitled to sick pay? In fact, while we’re on the subject, why not scrap SSP as well? The Regulations surrounding it are hideously complicated – reflecting the fact that it was initially designed as a social social security payment administered by employers. We could just replace it with a straightforward entitlement to a minimum level of contractual sick pay.

Employers may worry that without fit notes employees will be free to fake illness in order to stay away from work. But under the current system how many deliberate malingerers are thwarted by a vigilant GP who spots their ruse and – in the ten minutes allotted for their appointment – explains why a fit note will not be issued? The reality is that for most employees, obtaining a fit note is just a formality – so what is the point of it? Perhaps we should free up doctors to advise and treat their patients rather than complete paperwork for the benefit of employers. If employers need information about an employee’s medical position then it should be up to them to organise that using a provider who will be able to make a proper job of it.

One certain way of ending the fit note culture is to scrap the benighted things altogether.

Posted in absence management | Tagged business, employer, employment-law, fit notes, health, news, Occupational Health, sick notes | 1 Comment

Will Labour Ban Zero-Hours Contracts?

Posted on March 25, 2024 by Darren Newman

(UPDATED)

I’m spending an increasing amount of my time looking towards the next Labour Government and what it will mean for employment law. If the polls are right, it is going to be an exciting time to be an employment lawyer!

The main source for Labour’s policy on workers’ rights is ‘A New Deal for Working People’ a policy document launched by Deputy Leader Angela Rayner at the 2021 Labour Party Conference. It is significant that Angel Rayner continues to lead on this policy even though it would normally come within the brief of the shadow business secretary, Jonathan Reynolds. These proposals are a central part of Labour’s policy platform and we need to take them seriously.

In this post I want to concentrate on zero-hours contracts. Recent research from the Work Foundation has found that 1.1 million people in the UK are employed on zero-hours contracts and that almost three quarters of them experienced contractual and financial insecurity and a lack of access to basic employment rights. The report rejects the suggestion that zero-hours contracts provide welcome flexibility for both employers and workers and recommends that they should only be permitted where employees actively choose them.

Labour has been pledged to do something about zero-hours contracts for almost a decade.

In 2015 the Party’s manifesto said that “Labour will ban exploitative zero-hours contracts. Those who work regular hours for more than 12 weeks will have a right to a regular contract.”
The 2017 manifesto – the first with Jeremy Corbyn as leader – said that Labour would “ban zero hours contracts – so that every worker gets a guaranteed number of hours each week.” It went on to say “As well as legislating against zero hours contracts, there are many more workers on short hours contracts (some only guaranteed a few hours per week), but who regularly work far more. We will strengthen the law so that those who work regular hours for more than 12 weeks will have a right to a regular contract”
Then in 2019, the manifesto pledged Labour to “Banning zero-hour contracts and strengthening the law so that those who work regular hours for more than 12 weeks will have a right to a regular contract, reflecting those hours”.

So it is no surprise that in “A New Deal for Working People” we get this:

Labour will ban zero hours contracts and contracts without a minimum number of guaranteed hours. We will also ensure anyone working regular hours for twelve weeks or more will gain a right to a regular contract to reflect those hours normally worked

It really couldn’t be much clearer. Labour’s long-standing policy is to ban contracts that do not have a minimum, guaranteed number of hours. Allied to that – but distinct from it – is a policy to ensure that those working regular hours over 12 weeks will have a right to a regular contract reflecting the hours that they have normally been working.

Well maybe.

On 19 March Rachel Reeves delivered the Mais Lecture at the Bayes Business School. This is a prestigious event and she would have known that her words would be scrutinised carefully. Here is what she said about zero-hours contracts:

We will ban exploitative zero hours contracts, by giving all workers the right to a contract that reflects the number of hours they regularly work, based on a twelve-week reference period.

Note that the proposal is to ban zero-hour contracts “by giving” workers a right to a contract reflecting the hours they normally work. The suggestion here is that the right to a regular contract where regular hours have been worked for 12 weeks is not a separate right in addition to the ban on zero-hours contracts, it is the method by which the ban on “exploitative” zero-hours contracts is to be accomplished. Is that right? If this had just been said casually in an interview I wouldn’t have attached any importance to it. This isn’t Rachel Reeves’ policy area and I wouldn’t expect her to be word perfect on what the policy is. But surely the wording of the Mais lecture was carefully checked with those whose policy areas were referred to?

Over the weekend Analise Dodds MP was interviewed on Sky News and it was suggested that Rachel Reeves had not made it clear that zero-hours contract would be banned. She said this in reply:

Well we are going to ban them, and I can set out the detail of that if it is of interest. We’ve said that there should be an assessment period to understand the pattern of people’s hours and then ensure that people’s contracts reflect that.

So that actually seems to back up Rachel Reeves’ suggestion that the policy is to ensure that workers have a contract that guarantees the working pattern that they regularly work and that this is how the ban on zero-hours contracts will be achieved. With two senior front-benchers making the same point is it possible that some sort of policy shift is taking place here? Is Labour going to subsume the ban on zero hours contracts into some wider right to have a contract that reflects the hours that an employee has been working over an “assessment period”? I’d be keen to hear what Angela Rayner has to say about that.

I’ve always been sceptical of a policy to ban zero-hours contracts. It is all very well saying that workers should have guaranteed working hours – but what is the minimum number of hours that will be guaranteed? If I guarantee you one hour a week then you may no longer be on a zero-hours contract, but your work is hardly less precarious than if there were no guaranteed hours at all. What would the guaranteed minimum be? 8 hours? 16? Perhaps as the reality of Government grows closer, Labour is thinking about what a ban on zero-hours contracts actually means.

As it happens, however, I’m no more impressed by the policy of giving workers a right to a regular contract if they are, in practice, working regular hours. In the first place it strikes me that it is the workers who are not working regular hours who need the most protection. But there is also a risk that telling employers that if they give workers regular hours for 12 weeks then they will have to make that practice permanent, simply creates an incentive for employers to ensure that work stays irregular and unpredictable. I just don’t see how a policy that looks at a worker’s average hours over a 12 week period and then enshrines that average in the contract could be at all workable.

My suggestion would be to beef up the Workers (Predictable Terms and Conditions) Act 2023. That Act gives workers on unpredictable hours a right to request a regular work pattern. As currently drafted it is of almost no practical use because employers will still be able to refuse any request for a predictable work pattern as long as the decision is genuinely based on a business reason. There is no requirement for the refusal to be a reasonable one. But the Act could easily be amended to require employers to refuse requests only where there is a compelling business case for doing so. That would ensure that most workers could not be restricted to zero-hours contracts if they did not wish to be.

That could not quite be said to be a ban on zero-hours contracts – although perhaps Labour could say that it was “ending the practice of exploitative zero-hours contracts” which sounds almost the same. Whatever the ultimate solution, Labour needs to think about how to convert slogans into legislation that actually works. Perhaps what Rachel Reeves said is part of that process.

On the other hand, it might have been a typo.

UPDATE: 1 April (seriously)

In this post I asked what Angela Rayner would make of the comments made by Rachel Reeves and Analise Dodds. Well on 28 March Left Foot Forward published an interview with the Deputy Leader where she denied that there was to be any slow down in the rolling out of new employment laws under Labour. But here is what she said about Zero-hours contracts:

“What we won’t have is people working regular hours who are given a zero hour contract and no security, we’re calling time on that and I think most people recognise that and can see that you can’t get a mortgage, you can’t plan for your future, you can’t get credit if you’ve not got a contract that doesn’t give you any hours, it’s completely insecure’.

[Update to thee update: ~~Richard Dunstan (@wonkypolicywonk) has pointed out that this interview was quoting Angela Rayner speaking on the Today programme. He gives the full context of the comments here]

That does rather suggest that the ban on zero hours contracts will only apply to those working regular hours. this can’t just be a case of politicians speaking off the cuff and getting the details of two policies mixed up. There really has been a change.

This morning’s Times seems to confirm the shift in Labour’s thinking. In an article looking at the whole sweep of Labour’s employment law proposals we find this paragraph:

Labour has also promised to ban exploitative zero-hour contracts. This will not be an outright ban on all zero-hour contracts, recognising that some people appreciate the flexibility, but will take the form of putting a duty on employers to provide a contract based on the hours people have worked for the preceding 12 weeks.

I think the position is now as clear as it is going to be before the publication of the election manifesto. Labour will not ban zero hours contracts as such. Instead there will be some sort of law that will require employers to formalise working patterns that have been observed in practice so that the workers have some assurance that those hours will be continued in the future. I don’t quite see how a law like that would work without simply encouraging employers to keep working patterns as irregular and unpredictable as possible – but these are details that will have to be worked out when Labour is in Government.

I wonder which policy will be given this sort of treatment next. Fire and rehire perhaps?

Posted in Uncategorized, Zero Hours COntracts | Tagged A new deal for working people, Labour Party, Mais lecture, politics, predictable terms, uk-politics, zero-hours | 9 Comments