The UK’s Employment Law Review: the dynamics of policy-making under coalition government

1. The UK’s Employment Law Review: the dynamics of policy-making under coalition government • Steve Williams & Peter Scott • The UK Coalition Government and Employment Relations • University of Portsmouth Business School • Monday 16th December 2013

2. The UK Coalition Government’s Employment Law Review • The coalition’s Employment Law Review (ELR) has been articulated as a five-year rolling programme of reform; announced in the 2010 ‘coalition agreement’ – the Programme for Government • The principles underlying the ELR; and its content • But a particular focus on the characteristic features of the ELR policy making process • A distinctive and dynamic ‘coalition effect’ on employment relations policy; and the indeterminate policy trajectory evident

3. The principles underpinning the ELR • Flexibility: creating a labour market which ‘gives employers the confidence to hire people’; employers ‘feel that they have no rights – the pendulum has swung too far in favour of employees’ • Effectiveness: an emphasis on enabling individual workers and employers ‘mutually agreeing ways of work that suit their situation’ • Fairness: a minimum level of regulation is desirable, because of unequal employment relationship; fairness also supports mutuality. Fairness for employers too.

4. The content of the ELR • Flexible working and parental leave (the Modern Workplaces initiative) • Making it easier to dismiss employees, especially for alleged under-performance; see the measures associated with the Resolving Workplace Disputes initiative (raising the qualifying period for unfair dismissal; compensated ‘no-fault dismissal’; ‘settlement agreements) • Reforming the system of employment tribunals (e.g. fees regime; streamlined rules of procedure) • Changes to TUPE and redundancy consultation

5. The policy process • Sponsorship of the ELR by the Department of Business, Innovation and Skills (BIS) • - the employment relations ministerial portfolio held by a Liberal Democrat (currently Jo Swinson) • - why such an attachment to deregulatory measures? ‘Orange Book’ liberalism? • - some of the more controversial measures have emanated from Conservative elements of the coalition outwith BIS; e.g. the employee- shareholder initiative

6. The policy process • The role of the extensive array of consultation exercises • - the outcome of consultation has led the coalition not to pursue some proposed changes (e.g. the abolition of the ‘service change provision’ under TUPE) • - elsewhere the outcome of consultation holds little sway (e.g. the employee-shareholder initiative); or is used to add legitimacy to decisions already taken (e.g. the cap on unfair dismissal compensatory awards) • - Lib Dem ministers frustrating Conservative initiatives (e.g. compensated no-fault dismissal)

7. The policy process • The absence of evidence-based policy making • - generally, a lack of rigorous evidence to inform employment law changes • - faith-based policy making predominates • - for example, the 2011 report for David Cameron written by Adrian Beecroft calling for ‘radical changes’ to reduce employment regulation in order to boost competitiveness; based on his ‘personal impressions’

8. The policy process • The function of the ‘Red Tape Challenge’: ‘an additional lens through which to view the obligations on businesses in employing people, by focusing on specific regulations’ • - akin to an online crowd-sourcing exercise • - the coalition claims that priorities for the ELR have been influenced by responses coming through the Red Tape Challenge • - a device for validating reforms for which evidential support is sparse

9. The policy process • Realising the ELR measures • - through primary legislation (e.g. Enterprise and Regulatory Reform Act 2013) • - secondary legislation (e.g. changes to redundancy consultation) • - an increasing emphasis on guidance and information tools for employers, especially SMEs • - the ‘Employers’ Charter’: raising awareness of the ‘rights’ of employers

10. Interpreting the ELR • The ELR as a highly activist programme of deregulatory reform • Some evidence of a distinctively ‘Liberal Democrat’ coalition effect; but largely a meeting of neo-liberal minds • The trajectory of the ELR; a marked acceleration in the pace of deregulation • Impression management: the ELR as a label to signal the presence of a coherent policy strategy • The role of external actors (esp business organisations) in legitimating and validating change

11. Conclusion • The course of the ELR illustrates the extent to which an ideological preference for employment deregulation is central to coalition policy in work and employment relations (and its highly activist nature) • The presence of a distinctive ‘coalition effect’: not so much policy compromise as a policy convergence • The dynamics of employment relations policy: how the ELR illuminates the specific and indeterminate trajectory of coalition policy-making