Destruction of Employment Rights

Nick Toms, Streatham CLP and Barrister at Doughty Street Chambers specialising in employment and discrimination law, reports on alarming threats to our rights at work.

The Coalition Government is systematically destroying the limited employment rights currently enjoyed by individual employees in the UK.

In 2011, a report on employment rights commissioned by David Cameron and written by Adrian Beecroft, venture capitalist and Conservative Party donor, caused uproar when it recommended the abolition of unfair dismissal – the right that gives employees at least some element of protection against arbitrary treatment by employers.

BaileyThe report was dismissed at the time by Vince Cable as ‘the wrong approach’ saying ‘it was not the job of government to scare the wits out of people’. Beecroft, disappointed, denounced Cable as being a ‘socialist’ and unfit for office. He need not have worried – since then Cable and his Tory friends have set about dismantling employment rights piecemeal and by stealth.

Recent regressive changes introduced by the Government are set out below. But by far the most significant change has been the introduction of fees for bringing claims in the employment tribunal. A two tier system has been introduced. Smaller claims such as those concerning holiday rights and unlawful deductions from pay can only now be brought only on payment of an issue fee of £160. If the case proceeds to a hearing a further fee of £230 is payable. More complex claims such as unfair dismissal and discrimination have an issue fee of £250 and a hearing fee of £950.

There is a remission scheme for those with very low income and limited assets but the form is very complex and many applications have already been rejected.

The introduction of fees is already acting as a major deterrent to claimants with a devastating impact on the number of claims. Tribunal centres are reporting that cases in September were between 66% and 75% down on last year. While this may have been partly due to many claims being presented before fees came in at the end of July, it is likely that there will be a longer term reduction of at least 50% in the number of cases.

There is no evidence that it is the weaker cases that will not now be brought. On the contrary, the danger is that many employees with potentially good claims are being put off.

The underlying rationale for all these changes is that employment rights supposedly impact on jobs and the competitiveness of British firms. Yet there is no evidence to support this. The British labour market is already one of the most flexible in the world. A paper published by the OECD in 2009 showed that out of the 20 OECD countries (and ten selected developing countries), in only the USA and Canada was it easier to dismiss employees than Britain.

Some of the most severe restrictions on the employer’s right to dismiss staff can be found in countries such as the Netherlands, Norway and Austria which all have lower unemployment compared to the UK. The US, the country where is easiest to dismiss staff, has an unemployment rate of 9.1%.

Sadly, evidence and reasoned argument are lost on the Coalition. The UK is already a society with huge inequality. The rolling back of individual employment rights can only make this worse.

So far the opposition to these measures has been surprisingly muted. This must change if more rights are not to be lost. Socialists and trade unionists also need to campaign to commit the next Labour Government to reverse these changes, especially the introduction of fees, and for a positive bill of rights for employees in the workplace.

Recent regressive changes introduced by the Government

•Increasing the continuous employment needed to bring a claim of unfair dismissal from one year to two years. This affects around 12% of employees at any one time.

• Limiting compensation for financial losses in unfair dismissal claims to 52 weeks’ net salary (up to a maximum of £74,200).

• Repealing the protection of employees from harassment by third parties in the Equality Act.

• Abolishing the statutory questionnaire in the Equality Act which is used to help gather evidence in discrimination cases.
Discrimination claims are already hard to win and shamefully this vital tool will cease to be available from March 2014.

• Weakening the protection given to employees’ terms and conditions of employment in the Transfer of Undertaking (TUPE) Regulations when a service provider changes.

• Introducing a right for employers to have confidential conversations with employees about termination of their employment which cannot be referred to in employment tribunal hearings except in limited circumstances.

• Reducing the period of statutory consultation when more than 100 employees are to be made redundant from 90 to 45 days.

• Removing the right to have unfair dismissal claims heard by a full tribunal. The industrial jury has been replaced by judge only hearings in ever more types of claim.

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