12 April 2013

By Janet Newsham

Janet Newsham reports back on the debate and lessons learned from the IER's most recent conference: Workplace Issues - Learning from the Front Line.

This was a practical conference providing information and discussion about how we should be responding in our workplaces to the changes being introduced by the Government.

The conference began with a presentation from Brian Doyle, The Regional Employment Judge; and Jo Seery, from Thompsons Solicitors. Brian Doyle explained how employment law has developed and plays an increasingly greater role in the labour market. He explained the changes that were about to be introduced in Employment Tribunals, including the introduction of fees, could have significant effects on workers accessing justice. There is to be a remission system introduced for low-paid workers but there are no details on this yet. The new system will create an environment where there is no incentive for employers to conciliate until after the employee has paid the hearing fee. The change also raises questions about how the successful claimant will be able to recover the fee.

The Enterprise and Regulatory Reform Bill which is expected to become law in Spring will introduce a number of changes to employment rights:

1. Deposit Order System – introduces deposit to be paid by claimant for any number of different parts of a claim
2. Party to pay expenses of attending witnesses
3. EAT to be almost exclusively judges sitting alone from summer
4. Unfair dismissal compensation to be capped
5. Protected disclosures- test changed to ‘in public interest’ with ‘in good faith’ coming in later at the remedy stage
6. Protected discussion – confidential termination discussions which cannot be used later
However they may be admissible to use in tribunals investigating discrimination issues
7. Settlement Agreements is the new terminology for compromise agreements and there is likely to be further changes because of recent gagging clauses
8. Political opinion/affiliation – announcement suggesting unfair dismissal from day one
9. Equality Act – rules on 3rd party harassment and abolition of questionnaire procedure

Jo followed this detailed look at the changes to employment law with an examination of changes to collective employment rights on redundancy. She explained that the government were pursuing an agenda which supports the interests of the employer, but not the worker:

These included:

1. 90 day redundancy consultation periods reduced to 45 days
2. An Acas guide to be introduced on the definition of an ‘establishment’
3. Fixed-term contracts to be excluded
4. Introduction of non-statutory guidance on a number of key issues
5. However, Jo reminded us that the employer still has to consult meaningfully and provide specific information and that there is a minimum number of days for consultations to take place. The remedy if the employer fails to do any of this starts with a protective award, which starts at the maximum of 90 days' pay.

Union negotiators need to:

1. Remind employers that there is a minimum consultation period and demand reasons for redundancies to take place
2. Remember fixed-term contract staff may be able to argue ‘less favourable treatment’
3. Ensure that the redundancies are not broken down to fewer than 20 employees at a time in an attempt to evade collective redundancy legislation
4. Be aware that, ironically, it may be that issues like outstanding wages can be dealt with better at small claims courts rather than ETs

Carla Bennett, also from Thompsons Solicitors, explained about contract changes and suggested that the approach union negotiators should take is:

1. Strongly argue that the contract is sacrosanct and challenge any changes
2. Pursue unlawful deduction of wages and breach of contract claims
3. Challenge ‘some other substantial reason’
4. A protective award may be able to be pursued if the employer changes contracts significantly

Peter Middleman from PCS talked about regional pay, wages and living standards. He noted the government’s u-turn on the issue of regional pay. However the Government are proceeding to attack national agreements. He explained about the extreme right wing think tanks with innocuously sounding names which are influencing Government policy and being presented as credible organisations to the public. However, he suggested that the tide might be turning because of the accelerating rise in the cost of living and the media attacks after the budget. There are a number of trade unions preparing to take industrial action and there is rising confidence amongst the membership.

After lunch there were a number of workshops which examined resisting attacks on facility time, organising against austerity and avoiding redundancy: negotiating for members.

In concluding, Carolyn Jones, Director of IER said that unions are only as strong as their members and it was up to all of us to push for change. She emphasised that there are alternatives - alternative facts, alternative figures and alternative policies - but that such alternatives can only be achieved by the organised working class – the trade union movement - making a difference.