Busy day at work: the next Minister for #ukemplaw should not be a part-timer

The polls still suggest a close result but, with the Tory campaign in disarray and their supportive press barons suffering a collective nervous breakdown, I’ve started to feel vaguely optimistic that the next BIS employment relations minister will be a talented Labour MP such as Gloria De Piero, Stella Creasy or – if he survives the SNP tsunami – the excellent Ian Murray. And the reported remarks of Labour’s Lord Falconer, that the shadow cabinet has “very, very few” machinery of government changes in mind, has set me thinking about just how long a ‘to do’ list the new BIS minister would find waiting for them on their desk at 1 Victoria Street.

Because, as easy as it is to criticise the Labour manifesto for its lack of ambition on employment law-related reform, and the woolliness (ET fees) and/or daftness (zero-hours contracts) of some of its specific policy pledges, there’s actually quite a lot for a new Labour employment relations minister to be getting on with. In their first 12 months in the job, she or he will need to devote time and energy to some or all of the following work strands:

  • Working out how to translate the high-profile manifesto pledge to “ban the abuse of zero-hours contracts” into meaningful policy action;
  • Initiating the promised process, jointly led by the CBI and TUC, for agreeing reforms to the ET fees regime and – seemingly – the ET system more generally;
  • Working out how to implement a package of woolly pledges to enhance enforcement of the minimum wage (increased fines/penalties for non-compliance, a role for local authorities, a reformed/beefed up Low Pay Commission, and a possible new emphasis on criminal prosecutions);
  • Launching a consultation on “allowing grandparents who want to be more involved in caring for their grandchildren to share in parents’ unpaid parental leave”;
  • Developing a plan to “tackle exploitation in the care sector as a route to protecting staff and improving standards”;
  • Responding to the findings of the Equality & Human Rights Commission’s inquiry into pregnancy and maternity discrimination in the workplace (originally due out in March, but postponed until after the election);
  • Working out how to translate the pledges to “tackle undercutting by rogue employment agencies”, including by “taking action to crack down on rogue agencies that exploit workers illegally for profit”, and to “extend the Gangmasters’ Licensing Authority approach to cover sectors where there is evidence of high levels of migrant labour and exploitative working practices” into meaningful policy action; and
  • Preparing a Bill to legislate as necessary in relation to these and other strands of work.

That’s quite a ‘to do’ list for anyone to cram into five days a week, let alone someone who has a second job as a constituency MP. Yet the position of BIS employment relations minister has always been both a junior and a part-time role – the remit of the Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs currently covers, in  addition to employment relations: Post Office and postal policy; consumer policy and consumer affairs; competition policy; corporate governance; company law; social enterprise; Insolvency Service, including company investigations; and BIS better regulation, efficiency and reform agenda.

So, if Labour are serious about “supporting firms to win the race to the top, not get dragged into a race to the bottom”, perhaps one minor ‘machinery of government’ change they should consider is separating employment relations and consumer affairs, and appointing a Minister of State for Employment Relations. Some of of the above work strands will involve tricky negotiations with HM Treasury, the Ministry of Injustice and other departments, and on ET reform the minister will no doubt need to bang heads together at the CBI and TUC, so it would be handy not to be at the very bottom of the ministerial food chain. And promoting the position to Minister of State level would widen the talent pool from which to select what should be a prominent voice in any Labour government formed after 7 May.

Postscript: As if I hadn’t made the case well enough above, today the following photograph emerged, showing that the current holder of the post is too exhausted from her ministerial duties to notice that her campaign team are holding her placards upside down.



Manifesto mania: NMW enforcement not a job for the Home Office

So, we’ve had the Labour manifesto. And the Labour manifesto for Work, the Labour manifesto for Women, the Labour manifesto for Young People, and the Labour manifesto for Black and Ethnic Minority communities. I imagine before 7 May we’ll have the Labour manifesto for Dog Owners, and the Labour manifesto for People Who Listen to the Archers. But today it seems we will get the Labour manifesto for Home Office officials.

According to a report in the Guardian, the main feature of this will be a new “Home Office investigative unit” to target “the illegal exploitation of migrant workers”. This will consist of a “team of more [than] 100 police officers and specialists from the Gangmasters Licensing Authority”, who will be given “new powers to stop the abuse of workers and increase the prosecutions and fines of employers who breach employment laws”.

It’s far from clear how much this new unit will cost, but the Guardian reports “it will be paid for by levying a charge on non-visa visitors to the UK which is expected to raise £55 million”. And the unit will have “one overriding duty”:

To stop the abuse that makes the working families of Britain poorer. This new unit will have the powers and funding it needs to increase the prosecutions and convictions of Britain’s worst employers: those who exploit workers and drag down the wages of everyone else.

All of which glosses over the fact that we already have not one but four public bodies (or units) with much the same overriding duty: the aforementioned Gangmasters Licensing Authority, the national minimum wage (NMW) enforcement unit of HMRC, the BIS Employment Agency Standards Inspectorate (EAS), and the working time directive unit at the Health & Safety Executive. And, to access one or more of these bodies, you have to contact a fifth: Acas.

All of these bodies/units are severely underfunded: HMRC currently gets just £12 million a year to enforce the NMW, the GLA just under £3 million, and the EAS is about five people. And, if you were a government minister with a blank sheet of paper and some £15 million to spend on ‘tackling Britain’s worst employers’, you wouldn’t design a system with four (or five) separate bodies or units. You might, as Vince Cable suggested last year, create a Workers’ Rights Agency (or, say, a Fair Employment Agency), with “the powers and funding it needs” to tackle Britain’s worst employers. (Sadly, that suggestion hasn’t got much further than the inside of Dr Cable’s head, but at least he and the Lib Dems are thinking on the right lines).

So, if you are a new minister on 8 May, charged with the same remit, and have as much as a further £55 million to spend, you really shouldn’t create yet another public body (or unit). And YOU CERTAINLY SHOULDN’T PUT IT IN THE FUCKING HOME OFFICE.


[Postscript: here’s the Labour press release on Miliband’s speech]


Are there really no votes in employment rights?

So, the longest general election campaign in history – it surely started at least 12 months ago – has at last reached its final phase, with the three main political parties publishing their manifestos over a frantic three days at the start of this week. This blog’s founder, the fantabulous Sean Jones QC, has put his sanity at risk (so that you don’t have to) by ploughing through their combined 330 pages and documenting every last relevant policy commitment in the Hard Labour Guide to #ukemplaw Election Pledges. But I can’t resist adding a bit of (highly) subjective commentary.

Overall, it’s hard to avoid concluding that all three main parties see no great electoral advantage in trying to improve the working lives of some 30 million people. In 330 pages, there is just one mention of ‘flexible working’, and even that is just a reference (by the Lib Dems) to the Coalition’s extension of the right to request FW in 2014. Labour and the Liberal Democrats each use the word ‘exploitation’ in relation to workers just once, and the Tories four times – but five of those six uses of the word are in relation to migrant workers. Zero-hours contracts get six mentions by Labour, two by the Liberal Democrats, and one by the Tories, but there are no new ideas on how to tackle the exploitative use of such contracts. Despite the Coalition having handed the EHRC £1m to investigate “systemic” maternity discrimination, the issue gets just one brief mention (by Labour). And there is no mention anywhere of unfair dismissal.

Disappointingly, there is no space in the Liberal Democrats’ whopping, 160-page tome for Vince Cable’s October 2014 promise of a new Workers’ Rights Agency to “revamp efforts to enforce employment law and tackle the exploitation of workers” by combining the remits of “the minimum wage enforcement section of HMRC, the working time directive section at the Health & Safety Executive, the BIS Employment Agency Standards Inspectorate, and the GLA.” Perhaps I shouldn’t have pointed out that this was my idea. [Since I wrote this post, Jo Swinson has responded to a tweet from Sean Jones, saying “the idea still there” – ‘there’ presumably being the inside of Vince Cable’s head.]

Regular readers of this blog – hello David, Gem, Michael, Paul and Peter! – will not be surprised to hear that the first object of my skim reading was the issue of employment tribunal fees. The Tories let the cat out of the bag by claiming credit for “reducing the burden of employment law through our successful tribunal reforms” – that’s not what they said about their hefty, upfront fees at the time – and Labour can only find space for a tweaked, two-sentence version of the pledge previously set out in its Manifesto for Work:

The Conservatives have introduced fees of up to £1,200 for employment tribunal claimants, creating a significant barrier to workplace justice. We will abolish the Government’s employment tribunal fee system as part of wider reforms to make sure that affordability is not a barrier to workers having proper access to justice, employers get a quicker resolution, and the costs to the tax payer do not rise.

However, as noted previously on this blog, this raises at least as many questions as it answers. And note that the Manifesto for Work’s “costs to the taxpayer are controlled” has mutated to the arguably more restrictive “do not rise”.

Somewhat surprisingly, the Liberal Democrats are even more parsimonious on the subject of what their BIS employment relations minister, Jo Swinson, recently described as “one of the most high-profile debates around employment law in the last Parliament”. Their manifesto manages just a wishy-washy half sentence:

We will improve the enforcement of employment rights, reviewing employment tribunal fees to ensure they are not a barrier.

Whoopie doo. The Liberal Democrats devote more space to a promise of legal protection for bumblebee nests. Clearly, worker bees are more important than workers to a Liberal Democrat economy.

On the plus side, all three parties pledge to work to close the gender pay gap. The Tories say they “want to see full, genuine gender equality. The gender pay gap is the lowest on record, but we want to reduce it further and will push business to do so: we will require companies with more than 250 employees to publish the difference between the average pay of their male and female employees”. Similarly, a Labour government would “go further in reducing discrimination against women, requiring large companies to publish their gender pay gap and strengthening the law against maternity discrimination” – though there’s no indication of how they would do the latter. The Liberal Democrats only have enough space to say they would “work to end the gender pay gap, including with new rules on gender pay transparency”. The voting public could be forgiven for not realising that  little if any of this is new, mandatory gender pay gap reporting having been one of the last actions of the Coalition.

More positively, all three parties commit to the national minimum wage, and it’s especially heartening to see the Tories confirm they “strongly support the [NMW] and want to see further real-terms increases in the next Parliament”. They go on to expose the pathetic timidity of Labour’s promise of £8 per hour from October 2019, by stating: “We accept the recommendation of the Low Pay Commission that the [NMW rate] should rise to £6.70 this autumn, on course for a [rate] that will be over £8 by the end of the decade”. This is accompanied by a pledge to increase the tax-free Personal Allowance from £10,600 to £12,500, so that “those working 30 hours on the minimum wage pay no Income Tax”.

However,  as the FT’s John McDermott notes, this pledge is “less than it seems”, as a minimum wage rate of £8 per hour by the end of the decade would mean £12,480 per year for a worker on 30 hours per week. So, “give or take £20, [a Personal Allowance of £12,500] won’t make any tangible difference”. In any case, most workers on the minimum wage work fewer than 30 hours per week, so already pay very little if any Income Tax. And then there’s National Insurance.

Much the same can be said of the Tories’ other eye-catching move to outbid Labour’s core childcare offer (an expansion of “free childcare from 15 to 25 hours per week for working parents of three and four-year-olds, paid for with an increase in the bank levy”) with a pledge to “give families where all parents are working an entitlement to 30 hours of free childcare for their three and four year-olds”. This pledge is costed at £350m, which sounds too good to be true – and it is. As Sarah Hayward, leader of Camden council, points out in a splendid demolition job, the Tories have previously ‘costed’ Labour’s less ambitious pledge at £1.5bn (Labour’s own figure is £800m). So, to deliver 50% more extra hours than Labour for just £350m, “the quality of the childcare would need to be so appalling that no right-minded parent would ever subject their child to it”.

Elsewhere, the Liberal Democrats re-iterate their offer of an extra four weeks of paternity leave, but only at the current, lousy rate of pay (£138 per week, or just 60% of the NMW), and Labour repeats its February 2015 pledge of an extra two weeks, paid at a much more respectable £260 per week. And, in Labour’s separate Manifesto for Women, issued two days after the main event, there is an interesting promise to “consult on allowing grandparents who want to be more involved in caring for their grandchildren to share in parents’ unpaid parental leave, enabling them to take time off work without fear of losing their job”. This has been welcomed by the CBI, and represents a significant and well-deserved win for Grandparents Plus, which has mounted a sustained campaign on the issue.

And that’s about it. I just hope that, in 2020, at least some of the political parties will bear in mind the axiom that less is more. Because I just don’t think Sean Jones could survive 330 pages again.

Manifesto manifestations: Labour & Lib Dems offer hope on employment tribunal fees

I had been thinking I would save writing this post until after the main political parties have published their general election manifestos – which, back in the day, surely used to happen at the start of election campaigns? But it’s not often that I get a chance to write about good news and, well, I can contain myself no longer. For, over the past week or so, both Labour and the Liberal Democrats have restated their policy position on employment tribunal (ET) fees with a certainty and clarity that was previously somewhat lacking.

First up was Labour, which chose the afternoon my builders locked me out of my house (so away from my computer) to publish its Better Plan for Britain’s Workplaces (i.e. what normal people might have titled ‘Labour’s Manifesto for Work’). This states:

The introduction of fees of up to £1,200 for employment tribunal claimants has failed. It represents a significant barrier to workplace justice, and has failed to raise any money. Labour will abolish the Government’s employment tribunal fee system as part of reforms to make sure that workers have proper access to justice, employers get a quicker resolution, and the costs to the taxpayer are controlled. We will ask Acas to oversee a process led by the CBI and the TUC to agree reforms to the system.

Which is a significantly clearer (and bolder) statement of policy than that set out in last summer’s National Policy Forum report and first announced publicly if somewhat cryptically by shadow business secretary Chuka Umunna at the TUC conference in September, even if it still fails to answer the question of what kind of fees regime Labour might put in place of the current, “failed” regime. Which is an important question if, like me, you find it hard to believe that Labour would abolish fees outright. Or if you find it hard to believe that “a process” jointly led by a powerful business lobby group vehemently opposed to outright abolition would result in ‘agreement’ on outright abolition. Whatever, the clarification is vindication for those within Labour who have bravely pushed hard on the issue, especially NEC member Johanna Baxter.

However, the revised position also raises some new questions. If abolition of the current, “failed” regime would be tied to completion of a process, led by the CBI and TUC, of reaching agreement on a wider package of reforms aimed at ensuring that “employers get a quicker resolution, and the costs to the taxpayer are controlled”, how long would that take? Weeks? Months? A year? And would the current, “failed” regime continue in the meantime?

Call me picky, but to my mind that would be unacceptable. I suggest there would need to be an interim solution, involving an immediate (and substantial) reduction in the current level of claimant fees. Ideally, that would involve lowering both issue and hearing fees to a nominal level, at which I would hope to see them remain in the longer term as part of a revised fees regime including similarly nominal fees for employers to defend a claim, and a ‘polluter pays’ penalty on employers found by a tribunal to have flouted the law. The CBI has already indicated it could live with nominal fees for claimants, though of course it would have to be persuaded to accept nominal fees for respondents. Whatever, I very much doubt we will get answers to these (and other) questions before 7 May.

Three days later, and with much less fanfare, it emerged that Labour is not alone in tightening up its policy position on ET fees. On 4 April, employment lawyer (and Chair of the Law Society’s employment law committee) Laurie Anstis tweeted extracts from the contributions by each of the three main political parties to the April 2015 edition of the Employment Lawyers’ Association briefing (unpublished, but available online to ELA members, of which I am not one). The ELA had invited the three parties to “provide their manifesto proposals on employment law”, and the briefing sets out responses from Lord Hunt for the Conservatives, shadow BIS minister Ian Murray for Labour, and BIS employment relations minister Jo Swinson for the Liberal Democrats. Laurie has now very kindly provided me with a copy.

The section of Ian Murray’s contribution on ET fees is simply a reiteration of Labour’s previous, somewhat strangled position, now overtaken by the above events. And Lord Hunt hints that a Conservative government would go even further than the Coalition in restricting access to the ET system, as “There is still work to be done to ensure that ‘frivolous’ claims, which cost the taxpayer thousands of pounds in legal fees, are reduced”. There is? Really? But it was the contribution of Jo Swinson that most excited me (no, I never thought I’d write that either :-)). In a refreshingly candid section on ET fees, that is worth setting out in full (with my emphasis added), Ms Swinson says:

Liberal Democrats only supported the Conservative proposal to introduce employment tribunal fees on the basis that a rigorous review would be conducted, within a year of its introduction, to assess its impact and ensure no one was deterred from legitimate access to justice. Since fees were introduced, claims received by the employment tribunal have fallen substantially between July 2013 and September 2014 (notwithstanding the pre-claim conciliation service changing to the early conciliation service in [April] 2014).

Employers know that fees will put many potential claimants off bringing a claim. While I appreciate that many employment disputes will settle out of court, there is a real concern that bona fide claims are being unheard due to workers being unable to afford fees. Two years after its implementation, the Ministry of Justice’s failure to deliver an open and objective assessment of the impact of these reforms is inexcusable. It’s an issue repeatedly raised by myself and my colleague, Vince Cable. There is a clear, necessary and urgent need for this review to take place which goes to the credibility of our judicial system, not just the need for fairness.

There is also scope for tribunals to require the employer to reimburse a successful applicant. Studies have shown that over a third have not received any [of their monetary award] at all. It is absolutely wrong that employees end up paying fees in respect of successful claims for which they will never receive an award. The Liberal Democrats believe that a balance can be struck between managing the costs in terms of time, money and stresses of the tribunal system, and ensuring that employees’ rights are protected. That’s why we would review the level of tribunal fees to ensure that they do not prohibit people from making bona fide claims. A nominal fee could be appropriate to not unduly deter sound claims.

This is music to my ears, both on ET fees and on the shockingly common non-payment of awards, an issue I banged on about for a decade when at Citizens Advice, to very limited effect. Section 150 of the Small Business, Enterprise & Employment Act 2015, which received its Royal Assent in the last week of the Coalition, provides for the imposition of a financial penalty on employers who fail to pay an award (though as yet there’s no date for implementation). And just this week BIS added: “We are also introducing a scheme whereby employers who receive [such] a penalty may be publicly named.” But the next government needs to return to this issue, as there is still more to do, and Labour should think about including it in its proposed ‘reform process’ led by the CBI and TUC (which would, one hopes, include others such as the ELA).

So, I was a very happy bunny over the Easter weekend, and I’m looking forward to reading the Labour and Liberal Democrat manifestos. Normal service will no doubt resume shortly.

[With thanks to Laurie Anstis for granting me permission to include the above extracts from the ELA briefing]