Vince Cable has announced yet more employment law reform. Rajeev Thacker questions whether there is any justification for this further erosion of employee rights
We have previously commented (here and here) on the coalition government’s previously announced reforms of employment law. Today, Vince Cable has given a lengthy speech which records the recognition by the OECD, hardly an agitator for employee rights, that the UK already has one of the “most effective and lightly regulated labour markets among developed economies”. Despite this, Dr Cable, and presumably his colleagues in government, feel that there is an even greater need for the sort of reforms requested by the likes of the CBI. And, in case you think I exaggerate in suggesting that this is a business-driven agenda, you can read the speech for yourself and note the frequency with which Dr Cable comments on the need to listen to those particular interest groups.
So, what we have is an obligation upon all claimants to take their claim to ACAS, prior to it being considered by a Tribunal, the possibility of a “Rapid Resolution scheme”, with some cases not going to a Tribunal at all, and the novel suggestion of “protected conversations” (of which more later). And we should not forget the “root and branch review of the rules governing employment tribunals”. There is, of course, no evidence to suggest that any of these proposed changes, as well as the previously announced increase in the qualifying period to claim unfair dismissal, will actually help create jobs or reduce burdens on business. But they do illustrate the almost limitless desire of this government to be seen to be doing something, even if there is no real understanding of how it will make any real difference.
It is apparent that the aim of the reforms is to reduce the rights available to potential claimants, since government sees that as the way in which the costs associated with a system of employment tribunals can be reduced. Yet, the longest and most complex cases involve allegations of discrimination and, in recent years, the part-time worker claims involving thousands of employees across the country. None of these can realistically be affected by Dr Cable’s suggestions. And one will search in vain in his speech for any mention of the emotional and financial cost visited upon employees who are treated badly at work, lack employment security and are ineligible for legal aid so as to be able to enforce their rights.
So, how about this concept of “protected conversations”? The idea behind this, apparently, is to “allow employers to raise issues such as poor performance or retirement plans in an open way, free from the worry it will be used as evidence in a subsequent tribunal claim.” There are, to put it politely, numerous problems with this. Any good employer will of course raise any concerns with employees in a way that will make it impossible for the employer to be viewed in a negative light subsequently. And since it is a requirement of much of employment law that concerns be raised with an employee prior to a decision about his or her future being made, it is difficult to see why an employer would not want an employment tribunal to know about such conversations. The problems with the proposed “protected conversations” are manifold. How does a court decide whether a “conversation” is indeed “protected”? Will some formality be required in order to come within such a category? And what about abusive behaviour by employer or employee in such a conversation? The difficulties that the courts have had in defining the boundaries of legal professional privilege are well-known. It is hard to see the justification for creating yet a further class of privileged discussions.
As with much of this government’s reform agenda, and, to be fair, that of previous governments, it seems as though individual ministers are more concerned about leaving their mark than properly thinking through proposals. With Dr Cable’s suggestions, there will at least be some consultation. However, it seems as though the tone of the forthcoming discussion around workers’ rights has been set. And yet again, it is the interests of business that are in the ascendency.