11 October 2012

By Roger Jeary

Roger Jeary, a delegate at the IER’s recent sell-out Employment Law Update 2012 conference, reports on the event.

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On 10th October a packed hall in Hamilton House in London heard from an array of employment law practitioners, academics and other experts as the Institute held its annual Employment Law Update event. Against a background of erosion of both individual and collective rights and the 2012 Tory Party Conference, where selling employment rights for shares was the latest undisguised and misinformed attack on workers’ rights, the importance attached to this sold out event clearly demonstrates that, for many, employment rights are worth more than the £2,000 of shares in dodgy companies proposed by the Chancellor.

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Keith Ewing

Professor Keith Ewing opened up the contributions with his usual incisive overview of current events in the field of employment and trade union legislation. He rightly reminded those present that the current state of affairs represented a major shift of power from workers and their trade unions to employers, whether they be contractual rights, statutory rights or trade union rights. As subsequent speakers explored in more detail some of the changes both actual and potential the impact on workers and trade union rights became apparently acute. What was equally clear was that whilst the environment for change and actual change is government led and based more on ideology than practical or evidential experience, the collusion of employers and their organisations is equally damaging.

Examples of employers using S188 of TULRA 1992 to bring about contractual change or introducing the right to unilaterally change contracts without agreement leave workers very often with Hobson’s choice when it comes to acceptance. Such practices are not confined to small or medium sized employers but are being used by major household companies and of course the public sector.

Statutory rights are of course determined by parliament and the conference heard about the significance of the Beecroft Report and the 16 pages of proposals designed to fundamentally limit individual employment rights to those who can afford to challenge unfair practices. I will return to the interesting comments made about the introduction of fees and changes to costs in the tribunal system below. Before doing so the issue of trade union rights and, most importantly the attack on collective bargaining was properly highlighted by Keith and enforced by Sarah Veale from the TUC. Whether it is the facility time arrangements in the civil service and other public sector areas or the moves to regional pay, or proposals in the pipeline to restrict further industrial action, these all amount to direct or indirect attacks on trade union collective bargaining which is at the heart of trade union organisation. A recurring theme of this event was that whilst there are ways to challenge these changes as they occur or through judicial review in some instances, the absence of a clear political alternative from the Labour Party has to be addressed with urgency by trade unions and workers. The establishment of a Commission on Employment Rights, so far proposed by the Party, is no substitute for positive action to restore and improve collective and individual rights at work.

Paul Statham

As the event progressed, so the enormity of the attack became clear. Paul Statham from Pattinson & Brewer, Solicitors addressed in some detail the changes to the ET system both already implemented and to come. He rightly reminded us that although the qualifying period for unfair dismissals had returned to the 2 years imposed by the last Tory Government this did not apply to dismissals linked to a statutory right whether that be discrimination, health & safety, industrial action or trade union activities. These exclusions likewise apply to the change of judges sitting alone. But it was the issue of fees which rightly caused the sharpest intake of breath from delegates. I am not going to repeat the details here, they can be seen in “>Paul’s paper, but the fact that these fees are higher than those required to take a case to the Supreme Court; are questionably in breach of Treasury rules on the level of court fees and disregard the fact that some tribunal cases have no monetary value and others attract awards less than the fee! The other telling fact he told us was that 39% of awards are not paid at all. As Sarah Veale from the TUC told us this one change was probably “the most pernicious piece of legislation” as it could deny access to justice for so many of the most vulnerable. In an uncharacteristic political statement from a TUC speaker, Sarah demanded that the Labour Party give a firm commitment to repeal this legislation should it come to power.

An interesting piece of advice came from Paul Statham on the subject of protected conversations. Should any worker be invited to such a conversation he/she should ask at the beginning whether the reason for the conversation was because they were black, gay, disabled or old, making sure that this question was recorded. It would be interesting then to see if the conversation proceeded.

Stuart Brittenden

The attention to discrimination law was handled by Stuart Brittenden, Barrister from Old Square Chambers. From this session we learnt about the impact of cuts at the EHRC, the scrapping of tribunal awards with wider recommendations and the removal of the questionnaire procedure and proposals to abolish the 3rd party harassment provision. Of course none of these make sense at a time when equality is supposedly at the heart of government policy. Whenever a consultation document appears from the government on such subjects the front cover is emblazoned with the strap line “Putting equality at the heart of government”. If it wasn’t so serious it would be laughable.

Following these debates there was a Q&A session. On how to fight back against equality changes, Stuart reminded us that the law derives from the EU and that references to the European courts was one avenue, albeit lengthy. It also provides the basis of judicial review here in the UK and it was suggested that unions could be more pro-active in their use of this avenue. Perhaps it was Keith Ewing’s response to a question about living wage campaigns and the impact on regional pay which was most thought provoking. He posed the question as to whether in the long term we really wanted to go down the route of more wages being regulated by government. This is surely the role of collective bargaining he argued and such moves were likely to depress wages and diminish the role of collective bargaining. He reminded us that in 1980 82% of workers were covered by collective agreements; that had now diminished to 32%. Our aspiration must surely be to increase coverage to the levels enjoyed in many European countries where as high as 98% has been achieved.

The event then heard more on Contract law and how changes can be effected by employers from Jeanette Sainsbury of Thompsons. Much of this is determined by case law and the tactics advised was pursuance of cases, but bearing in mind always that unless financial loss can be demonstrated then remedies are limited.

Sarah Veale

The morning session finished with Sarah Veale putting much of what we had heard into a political context and how campaigning can be used to challenge the changes being made. Given that the day before the Chancellor had announced his new idea of employment contracts which offered shares in return for giving up basic employment rights it was hardly surprising that a number of speakers should make reference to this as the most bizarre and ill informed proposal yet to come from the Coalition Government. The comments were enhanced by reference to the fact that most employer organisations had already poured cold water on the idea and referring to the comments by Justin King, CEO of Sainsburys (not renowned for his trade union sympathies) saying it would undermine already low levels of trust in business. He is quoted in the Guardian as saying “I would not wish to trade good employment practice for greater share ownership. What do you think the population at large will think of businesses that want to trade employment rights for money?”

Sarah went on to highlight some of the further changes being talked about in government corridors which would attack trade union rights – balloting thresholds; use of agency workers in disputes; preventing essential workers from taking strike action; narrowing the ‘trade dispute’ definition and a requirement to opt in to a political levy. This on top of the attack on trade union facilities – another piece of dogma without any basis in need or value. Whistle blowing was another area of law which could also be under attack as was the Agency Workers Regulations. Little wonder that the plea for everyone to support and turn up to the march on 20th October was made with this as much in mind as opposition to austerity and welfare reforms.

The specifics of Age discrimination, TUPE, Collective Redundancies and Health & Safety were all up for debate during the afternoon sessions. I was impressed by the analysis provided by Stuart Brittenden again on the outcome of the Seldon case and others on where age discrimination was now. In a sense, the outcome has created a vacuum of uncertainty for employers and employees alike. The Supreme Court ruling effectively identified inter-generational and career aspirations as arguments that could be used to defend enforced retirement. But the decision went further than the European judgements that preceded it by saying that direct age discrimination can only be justified by legitimate aims of a public interest nature. The question posed by Stuart was does this benchmark offer greater protection for employees in the UK? Stuart also made reference to the comments of Lady Hale in the judgement welcoming the fact that she had diminished the “dignity” argument (i.e. limiting the need to dismiss by way of performance management) by stating that if a business already had sophisticated performance management measures in place it may not be legitimate to avoid them for one section of the workforce. The other major case referred to in this area was that of Woodcock v Cumbria Primary Care Trust where the dismissal of the CEO took place at a time which denied him access to his pension. The EAT has determined that this was a legitimate position for the Trust to adopt as it had a duty to be mindful of the cost to the taxpayer. Stuart rightly argued that this decision undermines the whole purpose of the Age Discrimination Act by using an economic situation as a contributing factor impacting on the social reasoning for the legislation in the first place.

We moved at rapid pace on to and through the current situation on TUPE. I regrettably am old enough to remember the Acquired Rights Directive and the introduction of the TUPE Regulations. Ever since then I have struggled to keep up with the ever changing legal position determined by case law in this and other countries across Europe. I admired Bruce Robin from Thompsons in his expert whistle stop tour of the current case law on this subject and commend his paper on the subject. Any attempt to summarise or comment would undoubtedly lead to errors on my part, so suffice it to say that Bruce’s plea to unions to make their views known on current and future consultations on this subject is eminently sensible.

Steve Cottingham

And so to the final session of a full day and it was down to Steve Cottingham of O H Parsons to update the meeting on developments arising out of the Löfstedt Report. The Report was the subject of a previous IER event which included participation by Professor Löfstedt himself so detailed comment on the contents again is not necessary at this time. What Steve made clear was that regardless of what the Report might have said, and it wasn’t as bad as it might have been, this government was hell bent on reducing the ‘burden’ of health and safety on businesses. It is using its Red Tape Challenge and the Lord Young Review to bring about a diminution of health and safety protection for workers. It is in the field of enforcement where this most likely to have the greatest impact as any attempts to replace existing H&S Legislation can be challenged unless it meets the requirements of the original EU legislation. If anything the accusation of ‘goldplating’ legislation which is made against these regulations is quite the reverse. The liberal splattering of ‘reasonably practicable’ across the regulations is not as Löfstedt suggests in his report “the key principle at the heart of Great Britain’s health & safety legislation”, but rather an invitation to courts and governments to determine how far responsibilities should go. Steve made the very valid point that there is nothing wrong with ‘goldplating’ if it occurs since EU directives are simply minimum standards to be the base for legislation across member states.

In summary the event, as in previous years, provided an informative update on employment legislation in the UK albeit tinged with the unpalatable fact that currently there is a government hell bent on eroding individual and collective rights. On the political front we have a long way to go to persuade the Labour Party that this is a topic which requires clear positive policy decisions and promises in advance of any election to avoid the mistakes of the previous Labour government in shying away from recognising the importance and validity of the arguments in favour of worker rights at a collective and individual level.

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