Effective employment rights – how do recent reforms contribute?

1. Effective employment rights – how do recent reforms contribute? Shirley Lerner Lecture 2014 Professor Linda Dickens

2. Employment Law Review • Parliament-long review of employment laws ‘to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive’ (Coalition programme for government 2010). • The ‘Red Tape Challenge’ – identification of unnecessary and burdensome measures for repeal including in employment rights area

3. Perceived problems and response • Too many disputes going to employment tribunals (200,000 claims per year); too easy to apply. • Nature and operation of ETs (cost, delay) • Employers over-burdened by employment rights • Rights hampering labour market flexibility and efficiency, undermining competitiveness • Employer fear of ET cases preventing recruitment and growth in the economy • Enterprise and Regulatory Reform Act 2013 (and other measures)

4. Reform measures: rights • qualifying period for UD increased to 2 years (April 2012) from 1 year (one of longest in G8) • New ‘employee shareholder’ status (shares in return for giving up employment rights) September 2013 • 12 month earnings cap on UD awards (from July 2013) • Financial penalties up to £5000 for wilful breach of rights by employers (not yet introduced) • Other areas: equality; H&S; flexibility requests; AWB. • No ‘gold plating’ of EU Directives: review of Agency Workers Regs.; collective redundancy consultation; TUPE

5. Reform Measures- ETs • Review/simplification of Tribunal rules; case mgt • witness statements taken as read; no automatic expenses for witnesses • Move away from tri-partism. Judges sitting alone • cost award limit raised (£20K); deposit orders raised (£1K). • Fees from July 2013 (issue fee £160/£250; hearing fee £230/950; remission system if low income/benefits; fees for appeal. If claim successful employer refunds fees • Mediation encouraged (judicial and workplace) • Settlement agreements facilitated – UD ‘protected conversations’ (where no ‘improper behaviour’) • All claims to Acas‘Early Conciliation’ from April 2014

6. Impact/ Implications • ‘Protecting fairness’? ‘minimum necessary’ employment protection. Employees bear more labour market risks. • Reduction in scope of protection. Experience of unfairness; labour mkt change and vulnerability • Problems of ‘self-help’ enforcement system (awareness, knowledge, preparedness, ability) exacerbated. Barriers increased; help reduced • Number of claims down since fees. Good news or not? • Increased opportunities for non-judicial resolution (mediation, settlement agreements; EC)

7. Lifting regulatory burden from employers? • Burden? Minimum standards as beneficial. Small employers ‘often supportive of need for regulatory framework and recognised impact of regulation on their business was minor’ (Jordan et al 2013). • Survey results need careful interpretation (e.g. negative predisposition to government intervention) • Anxiety-inducing rhetoric – adding to regulatory burden • Mismatch between ‘solutions’ and employer concerns (complexity; frequency; piecemeal change; administrative consequences and cost) – ‘business friendly’ reforms may exacerbate problems. • Consultation process

8. Evidence, assertion and ideology • Impact will depend on soundness of problem identification, robustness of evidence and analysis • Perceptions and reality. Facts and fears (e.g. risk of litigation; level of compensation; costs; meritless cases). • Legislating on mistaken beliefs - why it matters • Information, advice, assistance. Agency approach • BeecroftReport 2011 – agenda and benchmark • Weakening employment rights as part of growth strategy (deregulation contention) – but ‘countries with quite different levels of employment protection can experience equal levels of success in generating employment’ OECD. Pre-existing low EPL

9. Early conciliation • all claims to Acas first. Need EC certificate (unique ref. no) to go to ET from 6.05.14 • A calendar month conciliation pause (14 days longer/ shorter). Voluntary. Free. • Building on success of post- and pre-claim conciliation. • reducing volume of ET cases. Post claim saving c78% of potential hearing days; 20,000 PCC cases pa, 50% settlement, 25% subsequent ET claim • cost saving for state and parties(employers average saving £2,700 PCC cf hearing). • time saving, less stressful etc., settle on ‘own terms’, confidential.

10. Potential for broader contribution • opportunity to help develop fairer workplaces less likely to generate future ET claims - embedding good practice; conflict management cf. case disposal. • Acaspotential as institutional intermediary – beyond the individual case. • Independent tailored advice direct to employers in context where likely to be heeded. • Fit with Acas’ overall mission – to improve organisations and working life through better employment relations • Current emphasis of reform agenda risks undermining this potential – narrow perception of purpose and measure of ‘success’ (case disposal) - and resource issues

11. Workplace dispute resolution • Declared aim not reflected in action? Filtering out/deterring claims v resolving issues, improving workplaces • Workplace mediation • Workplace voice and representation facilitate dispute resolution. Union role in standard setting and enforcement; check arbitrary behaviour; provide warning system. Link recognised but not followed through in public policy. • Regulatory tools of non-state actors not harnessed

12. Over to you…… • L. Dickens (ed) Making Employment Rights Effective. Issues of Enforcement and Compliance (Hart Publishing 2012) • L. Dickens ‘The Coalition’s Reforms to Employment Tribunals and Statutory Employment Rights – Echoes of the Past’ in Industrial Relations Journal (forthcoming 2014) • Linda.Dickens@warwick.ac.uk