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‘Employment rights have to be enforceable to mean anything, but too often workers are locked out of justice and fail to receive proper protection.’
Labour Party National Policy Forum Report, October 2014.

We should have effective enforcement of employment rights… as the problem [of non-compliance] puts good businesses at a disadvantage compared with those who do not abide by the law.’
Katja Hall, Deputy Director General of the CBI, October 2014.

 

Such statements suggest a broad consensus on the need for basic workplace rights to be robustly enforced, not least to ensure a level playing field for employers. So you’d think the mainstream political parties might be putting some energy into thinking up bold, imaginative policies on the issue. But, mostly, you’d be wrong.

Conservative ministers such as Chris Grayling and Matt Hancock are so chuffed with their hefty, upfront tribunal fees – which have slashed the number of cases by 70% and left the average private sector employer facing a tribunal claim just once every 83 years – that they seem more likely to increase the fee levels than anything else. Add to that an almost certain revival of Adrian Beecroft’s infamous ‘fire at will’ proposal, and any future Tory government might just as well appoint a Minister for Rogue Employers.

Somewhat belatedly, the Labour Party has started making the right sort of noises on fees. However, its pledge to replace the fees regime with one in which ‘affordability will not be a barrier to workplace justice’ remains more a (badly written) slogan than an actual policy solution to the not insignificant problem that outright abolition now comes with a price tag: some £40m in lost fee income and increased operational costs.

Similarly, the Liberal Democrats have recognised the problem created by their Coalition partners without going so far as to say how they would solve it, should they get the chance to do so. At their conference in Glasgow, they adopted as party policy an equalities working group paper stating only that:

‘The right balance needs to be struck between deterring frivolous and vexatious claims and ensuring that employees’ rights are protected. We think that the high level of fees presents too much of a barrier to claimants. Liberal Democrats would review the level of tribunal fees to ensure that those [with] bona fide claims are not deterred by cost.’

Interestingly, I’m told that, as signed off by the working group, this policy paper included a commitment to scrap tribunal fees, but that wording was excised at the last minute by the party’s powers that be.

However, ensuring proper enforcement of workplace rights means more than restoring access to the employment tribunal system. Thanks to the ever greater casualisation of the UK labour market, understandable fear of victimisation or summary dismissal means that many abused workers will not even contemplate taking their employer on with a tribunal claim. And that leaves rogue employers to profit from exploitation with near impunity.

It was for this reason that, in 1999, the then Labour government established the mechanism by which the national minimum wage is pro-actively enforced by a team of HMRC inspectors. And similar reasoning lay behind the creation of the Gangmasters Licensing Authority (GLA) in 2005.

Until this month, only the Labour Party appeared to be giving any thought to the question of whether, and if so how, these and other State enforcement mechanisms and agencies might best be developed. The report of its National Policy Reform, finalised in July and published in October, includes a pledge to extend the remit of the narrowly focused GLA to ‘sectors of the economy such as construction, hospitality and social care, giving better protection to those workers’. And it states that ‘alongside increased fines and a new role for local authorities in enforcement [of the minimum wage], HMRC’s remit on enforcement should be expanded to include related non-payment of holiday pay’ – these being recommendations from the May 2014 report for Labour on low pay and the future of the minimum wage by businessman Alan Buckle.

However, at the Liberal Democrat conference in Glasgow, business secretary Vince Cable quietly announced – it wasn’t even mentioned in his conference speech – that the party’s manifesto for May 2015 will promise ‘a “one stop shop” for workers’ rights enforcement’. By combining the remits of ‘the minimum wage enforcement section at HMRC, the working time directive section at the Health & Safety Executive, the Employment Agency Standards Inspectorate, and the GLA,’ a new Workers’ Rights Agency would ‘revamp efforts to enforce employment law and tackle the exploitation of workers.’ According to Cable, this ‘joined-up enforcement approach’ would ‘ensure the minority of unscrupulous employers who break the law do not get away with undercutting other employers who play by the rules’.

Which is music to my ears. From 2001 until 2013, while at Citizens Advice, I repeatedly advocated just such an approach – including a consolidation of the four State enforcement bodies into a Fair Employment Agency – so as to shine a light into the murkiest corners of the labour market, provide better value to taxpayers, and secure a fair competitive environment for business.

The Coalition government’s first employment relations minister, Edward Davey, was quite taken with the idea – so much so that in early 2011 he launched a ministerial review to ‘look at the potential cost and operational benefits of enforcement models that would consolidate enforcement functions in a single body’. However, that review did not survive Davey’s sudden elevation to the Cabinet in February 2012 (following the resignation of the speedy Chris Huhne), and his replacement by Jo Swinson. By the start of 2013, Davey’s review had been quietly shelved.

So it’s good to see that the idea still has some political legs. For, in the words of employment lawyer and blogger Darren Newman, it’s ‘the sort of thing a Labour/Liberal Democrat coalition could work on’. And, with Labour facing meltdown in Scotland and the Tories ceding any chance of a working majority to UKIP’s false charms, that is now a post-election scenario not as far fetched as it seemed just a few months ago.

 

 

 

 

Profile photo of Richard Dunstan About Richard Dunstan
Richard Dunstan is a policy wonk who has worked for Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.

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1 Comment

  • shirley jones November 3, 2014 11:45 pm

    There will never be true rights for British workers that protect as they should, to the extent that they need to, when our Justice System and our Government uses, knowingly so, so called ‘expert witnesses’ that are neither qualified to be acting as the ‘experts’ they are put forward as, and do not have the necessary relevant experience in the specific industry that they are supposed to be giving ‘expert’ opinion on and in no way meet the criteria in the current legislation, Part 35 of the Civil Procedure Rules, that governs the use of ‘expert’ witnesses in court and in legal cases.

    Look past the company PR hype of the landmark Phurnacite group litigation case of 2012, hailed as a huge success but at most was only 50% successful and actually hid a much larger injustice. A large group action involving over 300 victims of cancers and other diseases from one polluting coke oven, smokeless fuel producing plant, one small Welsh town who were sacrificed so they could breathe clean air in London after the smog of the 50’s. The Governments own Inspectors deemed it to be ‘Europe’s Dirtiest Factory’, described by locals as Dante’s Inferno and by others as resembling a scene from the WW1 Battle of the Somme or Hell on Earth.

    They knowingly used an ‘expert’ toxicologist acting for the defence, a Government department, (he always acts for the defence) which was found out, only at the end of a very long, harrowing, difficult, expensive case, that cost the public millions and took victims decades to get it to court, that he was NOT qualified to act as a Toxicologist at all and therefore not qualified to give expert opinion on matters of causation of cancers or any disease. As the judge confirmed, he had no medical, no biological and no toxicological qualifications. Nor did he have any relevant experience in the complex industry he was giving expert opinion on. She justified using this witness, somewhat pathetically, as an epidemiologist despite him being relied on heavily throughout as a Toxicologist not an epidemiologist, who had taken part in at least 2 joint meetings of experts for the medical Doctors and the Toxicologists and had therefore influenced the joint meeting reports that were relied upon in court. There were other discrepancies too.

    A judicial review or public inquiry was essential in this case but the victims didn’t have the money to fund it. An initial health study had shown alarming results for employees and residents too, so an updated one was promised but this has never been undertaken, the cost cited as the reason but the town’s people were riddled with many cancers, respiratory disease was rife, and birth defect clusters were being spoken about. What are they frightened of finding?

    This is not the only case where this type of injustice has happened and sadly due to precedents set and the way judgements are arrived at, means thousands may be denied justice in the future too.

    So workers are not only denied access to justice due to them not having access to funding to fight these complex cases, they also have a seriously flawed legal system and experts who are not experts too working against them. Is that what they deserve?

    Anyone who has been robbed of their health and their life due to work exposures due to lack of protection and dire or non existent standards of regulation, is made a victim twice over by a corrupt, failing justice system that serves only to deny the truth and only afford protection to the industry, business and the Government too.

    It was shown in the last few years that there are serious flaws where so called expert witnesses are concerned. Psychiatrists and other experts used in secret family courts, where the result often was that children were forcibly removed from parents, a fifth were found to be not qualified to write the reports and to give the ‘expert’ opinions that they were giving in court. Then you have the evidence Lord Young wrote about in the investigation and report that he was asked to conduct by David Cameron, where he asked Lord Young to investigate and to write about Health & Safety. Lord Young found that SME’s were reliant on Health & Safety Consultants but that most of them were not sufficiently qualified. Yet this is the same pool of so called ‘experts’ that most workers legal cases would be reliant on.

    Then there are other so called ‘experts’ who are not ‘experts’ at all. Surely this is unlawful? Surely their evidence in flawed? They say the days of the ‘Hired gun’ have gone, but their replacement is no less sinister. These are far worse.

    Workers whose only purpose and desire is to work to provide for their families and to keep a roof over their heads, will still continue unnecessarily to die or become devastatingly debilitated and disabled due to the negligence of others while this flawed system continues.do we never learn?

    This isn’t British Justice, it’s an Expert Witness Whitewash!!

    Regards,

    From a victim, an expert victim…..

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