Who needs European Employment Rights

bullshit

I logged into Twitter and someone had posted this image into my timeline. My eyes nearly rolled out of their sockets. The Brexit debate could scarcely be said to have been characterised by the accuracy and honesty of the arguments advanced, but this seems to me to be very seriously misleading.

I am going to deal with each of the points made. But two general points can be made immediately. First, the EU does not have the power to regulate Employment Rights generally. It is perverse to criticise the EU for not creating a right to a minimum wage where Member States have been scrupulous to ensure it does not have the power to do so. Second, the EU law sets a floor not a ceiling. There is nothing to stop the UK having more generous rights whilst remaining a member of the EU. The only thing continued membership prevents is having less generous rights.

Right to Holidays

The Holidays with Pay Act 1938 did not create a general right to paid holiday. It applied only to those workers who had their minimum wages set by a wage regulating authority (section 1(1)). Any worker whose pay was fixed under the Trade Boards Act 1909 and 1918 or the Agricultural Wages (Regulation) Act 1924 were not to be entitled to more than a week’s paid leave in each year and the former were not to be allowed to take more than three consecutive days of leave (Section 1(2)).

The relevant part of the Act was repealed in 1975. By 1997 there was no statutory right to paid annual leave (unless you were an agricultural worker). That position changed as a result of the Working Time Regulations 1998. The Regulations were intended to implement the Working Time Directive 93/104/EC.

The Directive created a right to four weeks’ annual leave.

The UK fought tooth and nail against the introduction of the Directive. It went to the European Court of Justice in an attempt to get it annulled. The attempt failed (see United Kingdom v Council of the European Union C-84/94).

It is true that the UK subsequently increased the entitlement by 1.6 weeks. The reason for the increase was that UK employers had insisted that bank holidays should count towards the four week entitlement. The significant point here is, as stressed above, that the Directive does not prevent the UK being more generous. It does, however, prevent the UK being less generous. It sets a floor not a ceiling.

So in Bear Scotland Ltd v Fulton UKEATS/0047/13, the Employment Appeal Tribunal made the latest in a series of findings that the UK had failed properly to implement the entitlement to paid annual leave. The Working Time Directive was used to bring the rights of UK workers up to the standard that applies across Europe. Without the Directive, UK workers would have had less protection.

Equal Pay

Should we pat ourselves on the back for having legislated for equal pay before even joining the EEC? In short, no.

The right to equal pay was enshrined in Article 119 of the Treaty of Rome itself, which was signed in … 1957. That meant that we were going to have to legislate if we wanted to join.

Although the Equal Pay Act was enacted in 1970, it was not in force in 1973 when the UK joined the EEC. In fact, it did not come into force until December 1975. By then the Equal Pay Directive 75/117/EEC was in place. It required a substantial broadening of the right so that it covered cases where men and women were performing work of equal value. Again, Europe enhanced the rights of UK workers.

A number of subsequent decisions identified respects in which the Domestic legislation had failed properly to implement the European right. One example was the fact that the 1970 Act limited back pay claim to two years. That was held to be inconsistent with European Law and extended to 6 years.

Maternity

Couldn’t the EU be more generous in respect of Maternity Leave? Couldn’t it set a minimum rate of pay?

In 2010, the European Parliament (that bunch of ELECTED Eurocrats) voted in favour of a series of amendments to the Pregnant Workers Directive 92/85/EU. These provided for, amongst other things, 20 weeks’ maternity leave on full pay.

The proposals were blocked in Council. The UK (you’ll probably have guessed) opposed the amendments. Who went along to block them? Vote Leave’s very own Chris Grayling MP: https://www.gov.uk/government/news/uk-ministers-lobby-europe-against-socially-regressive-maternity-proposals

The ECJ has on a number of occasions forced changes to the UK Law protecting pregnant women and those who take maternity leave against discrimination that would have been permissible as a matter of Domestic Law.

Wages

It is entirely correct that there is no EU minimum wage law. The EU does not have competence to legislate in this area (see Para 4.4 here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/332524/review-of-the-balance-of-competences-between-the-united-kingdom-and-the-european-union-social-and-employment-policy.pdf).

It is true that not all Member States have national minimum wages. Some have sectoral minimum wages and others achieve the same result by way of widespread use of collective agreements.

We were late to the party. The French have had a statutory national minimum wage since 1950.

Discrimination

Since we joined the EEC in 1973 and the Sex Discrimination Act was not passed until 1975, a TARDIS seems to be required.

[Edit: The article responds to the specific points made in the graphic circulating on the Internet. The scope of European influence on UK Employment Rights is much greater than the subset addressed here. If you are interested in a complete picture of what rights are under-pinned by European Law, I strongly recommend this opinion produced for the TUC by Michael Ford QC: https://www.tuc.org.uk/sites/default/files/Brexit%20Legal%20Opinion.pdf ]

Notes from the National User Group, March 2015

With my Legal Officer at the Free Representation Unit hat on I go to the meetings of the Employment Tribunal National User Group.

From time to time I’ve written up some of my notes, on the basis that there was interesting information that could be usefully distributed further. This may become unnecessary, since HMCTS is making the minutes available. But, if only to draw attention to that, I thought at least one more post might be useful.

Note, however, that these are my best notes of the meeting and shouldn’t be read as any formal statement by any of the tribunal judiciary or HMCTS (any errors are mine alone). I didn’t get a full note of some of the detail, so that will have to await minutes.

Next year’s fee paid judges / members budget

This has been reduced, to reflect the fact that HMCTS expect fewer cases. It shouldn’t be regarded as a budget cut, because it’s based on the modelling of the case-load rather than trying to reduce costs. If there are more cases than expected there will be a case for more budget and that case will be made.

HMCTS Reform Programme

MoJ is doing ongoing reform work, including within the Employment Tribunals, focused in particular on IT and premises. This will start to affect the ETs in the next 12 to 18 months. Likely to be some changes users will like and some we’ll dislike.

Premises

Bristol and Nottingham have both recently moved into combined court premises. Initial feedback seems to be positive and HMCTS feels they’ve been able to maintain the informality of the tribunal while making efficient use of the premises estate.

Huntingdon moved into the law courts a few years ago and has been the only user. Due to changes elsewhere the Crown Court will be moving back in, partially displacing the Employment Tribunal. There will therefore be sittings in Cambridge as well as Huntingdon.

Pension Loss Guidance

The guidance booklet Compensation for loss of pension rights: employment tribunals, third edition is currently marked on the Gov.uk website as withdrawn. People who follow me on twitter may have seen that I was curious about this and so I raised a question.

The present position is as follows. Following the Court of Appeal judgment in Griffin v Plymouth Hospital NHS Trust the President of Employment Tribunals has formed a working group to consider whether there should be updated guidance. Any new guidance will be the subject of consultation. It may well take the form of Presidential Guidance, rather than a new booklet.

There has been no formal withdrawal of the 3rd edition guidance. Parties must take their own view on the extent to which, in any individual case, it is appropriate to rely on that guidance in the light of Griffin v Plymouth and what, if any, other material should be presented.

Remission

MoJ continues to work on the process for applying for remission. We can expect further changes in the Autumn.

Postponement Consultation

Slightly over 30 responses have been received. Given the timescales, the response is likely to be published after the election.

Will the next government put the ‘fair’ back into unfair dismissal law?

Last week, for some reason, my mind kept wandering back to 2011, the year in which every stakeholder meeting with BIS officials was dominated by a shouty policy wonk from the British Chambers of Commerce. The year in which BIS spent taxpayers’ money compiling a consultation response that – without so much as a ‘winking’ emoticon to let you in on the joke – stated:

In a survey of 1,100 of their nuttiest members, the Institute of Directors told us that large numbers of businesses had expressed concerns about dismissal and the risk of tribunal claims in relation to recruitment plans. Fifty-one per cent of respondents to the survey said that the one-year qualifying period for unfair dismissal was a ‘significant’ or ‘very significant’ factor in considering whether to take on an additional employee.

Yes, OK, I added ‘nuttiest’. But I don’t think it makes any difference. For the fact is business secretary Vince Cable opted to extend the unfair dismissal qualifying period to two years, on the basis that 561 (two per cent) of the 34,000 members of a Pall Mall-based organisation that’s had only two female heads in its 112-year history thought they could get a bit more deregulation of the labour market by ticking a box in a survey questionnaire. Perhaps, being a Liberal Democrat, Dr Cable just felt a natural affinity with the largely woman-free Institute.

To be fair to Dr Cable, the somewhat less nutty CBI did say that extending the unfair dismissal qualifying period would “have a positive impact on marginal hiring decisions, particularly in smaller firms.” But then that sort of depends on how you define ‘marginal’. Because what the November 2011 BIS consultation response failed to note is that, at that time, the UK’s 1.2 million employers faced an unfair dismissal claim just once every 27.5 years, on average. So, if business leaders really were hamstrung by anxiety over whether their next hiring decision would result in an unfair dismissal ET claim, then we know who to blame for the UK economy lagging behind so many of its competitors.

The BIS consultation response also overlooked the fact that, as shown by the following chart, the number of unfair dismissal claims had been declining steadily since early 2009 (when, of course, the economy was not exactly in best form). Faced with such statistical evidence, as distinct from the views of a self-selecting sliver of the membership of an exclusive Pall Mall club, most time-pressed ministers would probably have opted not to try and fix something not obviously broken. But poor Dr Cable had the abominable Adrian Beecroft and his pals in 10 and 11 Downing Street to deal with. So, with the economy struggling to get out of first gear, Dr Cable thought it best to make workers (aka consumers) a little bit more insecure, but not quite as insecure as Beecroft would have made them.

UDeras

And so it was that, in April 2012, the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 extended the unfair dismissal qualifying period from 12 months to two years, and what we might call the Blair-Brown era of unfair dismissal claims (the red columns in the chart) came to an end. Then, somewhat ironically, given that the BIS consultation response had predicted the extension would result in a 3.3 per cent fall in the number of unfair dismissal claims, the dawn of the Beecroft-Cable era (the blue columns in the chart) saw a not insignificant increase in the number of such claims. (That 3.3 per cent, incidentally, is what we policy nerds call ‘spurious precision’. BIS had absolutely no idea how much claim numbers would fall by, if at all, but cunningly concealed that fact by suggesting it had calculated the drop to a tenth of one per cent. MPs and especially journalists fall for this every day of the week.)

Yes, there might have been an even bigger rise, had Dr Cable not acted as indecisively as he did. There’s simply no way of knowing. Whatever, by early 2013, the number of unfair dismissal claims had slipped back pretty much to where it had been in late 2010. And then, of course, we entered the Grayling-Swinson era (the orange columns in the chart), during which the number of unfair dismissal claims has fallen to levels not seen since the Institute of Directors last had a female head, in 1926. With the result that UK employers now face an unfair dismissal ET claim just once every 87 years, on average.

In short, this was evidence-free policy making, based on nothing more than an ideological hunch that eroding legal protection against unfair dismissal would somehow boost job creation. Yet, amid ever greater casualisation of the labour market, the move has unquestionably shifted the imbalance of power between workers and employers a little bit more in favour of the latter. So, with the economy now doing somewhat better than it was in late 2011, there’s a good case for putting the qualifying period back to one year (or even lowering it all the way to six months).

Good employers would have nothing to fear from such a move, as the law on unfair dismissal does not prevent an employer from dismissing a qualifying employee for incompetence or even just for not working hard enough – it simply requires the employer to follow a fair process when doing so. And, as Simon Jones notes in this blog post, that isn’t hard to do. But a shorter qualifying period would create a bit more security in what is an increasingly insecure labour market.

It seems safe to assume this is not a direction of travel in which Conservative ministers would go after 7 May, and the Liberal Democrats’ pre-manifesto, published last September, is entirely silent on the matter. The July 2014 report of Labour’s National Policy Forum, which is supposed to form the basis of the party’s general election manifesto, does include the extension of the qualifying period among a list of Coalition policies that have “fundamentally undermined employment rights”, but there’s no clear commitment to reverse the extension. Similarly, Labour’s better economic plan for prosperity, published yesterday, states:

The [Coalition] Government has actively encouraged a race to the bottom [in wages and skills] by weakening the UK’s enforcement regime and promoting a hire-and-fire culture: doubling the qualification period for unfair dismissal; introducing fees for employment tribunals; and setting up a controversial scheme whereby employees trade their employment rights in return for a share in the company.

Despite this highlighting of the issue, there’s still no place in the plan for a pledge to reverse the doubling of the qualifying period for unfair dismissal (or, indeed, to do anything at all about the equally controversial employment tribunal fees). But then there was no mention in the National Policy Forum report of increasing paternity leave and pay, and that omission – together with a price tag of some £150m per year – hasn’t prevented Ed Miliband from pledging to do exactly that if Labour win in May.

If they genuinely believe in supporting businesses to win the race to the top, not get dragged into a race to the bottom, senior figures in both Labour and the Liberal Democrats should ensure their election manifesto includes a commitment to promptly lower the unfair dismissal qualifying period to 12 months. British bosses should not need more than 12 months to decide whether or not they’ve hired the right person. And the Institute of Directors should be told to go fish.

Rights At Work

“Workers and their families have always distrusted the law, and rightly so. It is not an instrument geared to our needs, and the people who administer it are unrepresentative, out of touch and antagonistic to our demands. Nevertheless, through political and industrial action workers have secured a set of legal rights which can be exploited.

Use the law only when industrial activity fails…Going to law is always a risky business-it takes time, it exposes individual workers to publicity and harassment, it hardens attitudes, and workers rarely win outright…You should only use the law when all prospect of solving an industrial problem through negotiation, conciliation or industrial action have vanished”.

Powerful words especially if you are a young, post-grad student about to start writing a thesis with the pretentious title “The Historical Development of Individual Employment Law”. They are from the first 2 paragraphs of “Rights At Work, A Workers Guide to Employment Law” published in 1979 by Pluto Press.  This book was found on the shelf of many union officials and quite a few labour lawyers, including myself in the 1980’s.

The words quoted above deliberately echo the famous opening words of “The Worker and the Law” by his teacher at the LSE, Bill Wedderburn

“Most workers want nothing more of the law than that it should leave them alone”

The author has just died, tragically young…HHJ Jeremy McMullen QC.  He was then an official in the General and Municipal Workers Union.  Subsequently he became a practising barrister, QC and Senior Judge at the EAT until 2013.  A pretty unique career path.

I leave it to others to write his obituary.  My purpose is to explore whether Jeremy was right and whether what he said above is still valid today.

In 1968 the Dagenham Fords Sewing Machinists (as in the film and now  musical with the earworm of a title tune, “Made in Dagenham”) went on strike for equal pay.  They wanted re-grading from unskilled B grade to semi-skilled grade C.  They settled for a wage rise to 100% of B grade but not the re-grading to grade C.  They didn’t get “equal pay” with their male colleagues.

In 1983, the Equal Value Amendment Regulations were introduced by a reluctant Tory government on the back of an adverse European Court judgment.  The first case brought to tribunal in 1984 was by the same Dagenham Fords Sewing Machinists making the same demand for re-grading. They argued their work was of equal value to that of the male semi-skilled grade C workers.  My firm was instructed by the union to act.  I was a lowly articled clerk taking notes at conferences and running errands.  Suffice to say the case was lost as was an appeal.  The women then went on strike in December 1984 and stayed out for 9 weeks closing down production. Arbitration through ACAS led to a ruling that they should be re-graded to grade C.

Ten years later, a union activist on the Underground was dismissed for allegedly assaulting a manager.  Now qualified as a solicitor, I was instructed by the union to take a claim to the tribunal for interim relief on the grounds of union membership and activity.  The case was won, mainly due to the brilliance of my client in the witness box.  London Transport refused to reinstate and so the tribunal made a continuation of contract of employment order (I remember being quoted in the Evening Standard, saying how outrageous it was that tax payers money was being wasted paying my client to tend his garden).  The Central Line then had a 1 day strike, the matter was referred to an ACAS conciliator and my client got his job back.  He is now Assistant General Secretary of the union.

At the Matrix Chambers Employment Seminar yesterday in a discussion about the increase in interim relief cases in whistleblowing claims, James Laddie QC asked me why there were so few trade union activities claims.  My recollection was that I probably ran on average 1 case per year but was only successful in one other case in 30 years (ironically where I instructed Jeremy).  The common factor in both cases was the performance of my client in the witness box compared with the employer’s witnesses.  Such claims are very hard to prove to the satisfaction of the tribunal and even if you win the employer doesn’t have to reinstate.  The employer also gets 2 bites of the cherry to get their evidence right as to why trade union membership or activities played no part in the decision to dismiss, “anyone is free to join a union” and “some of their best friends are union members”.  Tactically interim relief is often not the best option.

These are but 2 examples from my personal experience that seem to bear out Jeremy’s words. There could be many more.  Of course when Jeremy wrote those words we were in a very different economic world.  The labour market was completely different.  Union density is now 25.6% with 6.5m members.  In 1979 it was over 50% with 13.1m members.  For many workers today, the protection of strong union membership with terms and conditions set by collective bargaining, is never going to happen.  The law is the only protection of minimum standards of fairness and dignity at work.  The reality for many workers is insecurity and exploitation, with pay below the minimum wage, zero hours contracts, casualisation and unsafe workplaces.

Matters will only get worse if the Tories are elected in May with a working majority.  We are promised further restrictions in strike ballots with new minimum thresholds.  Osborne hinted at Davos there would be further changes to facilitate labour mobility (no fault dismissals a la Beecroft?)

And now you have to pay for the privilege of enforcing your rights.  If Jeremy was writing “Rights At Work” today he would add a sentence.  “And you have to pay a £1200 tax to enforce your rights”.

Passing new laws is not necessarily the answer.  What is?  I await your comments.

There is to be a Jeremy McMullen Memorial Fund to support female candidates for the Bar through work-experience and marshalling.  Donations can be made here.

HHJ Jeremy McMullen QC 1948-2015, trade union official, barrister, judge, friend, neighbour and occasional cycle to work companion, you will be missed but the debate about Rights at Work will continue.

Costs threats in employment tribunals: a proposal for reform

The Employment Tribunal Rules implemented in 2013 went wider than simply introducing fees.  As a package, I would argue that they have shifted too much of the risk of bringing a claim onto the claimant.  In particular, the increase in the maximum cost order from £10,000 to £20,000 has made it more attractive for employers to make unwarranted costs threats in an effort to force employees to drop their cases or settle on unfavourable terms.  My proposal seeks to remedy that by allowing tribunals to order an uplift in compensation where an employer makes an unreasonable costs threat and goes on to lose at tribunal.

Prior to July 2013, the main financial risk a claimant faced at tribunal was a costs order, which could be made if the tribunal found that the party or their representative had in conducting proceedings ‘acted vexatiously, abusively, disruptively or otherwise unreasonably’ or if their bringing or conducting of the proceedings had been misconceived.

The maximum costs order the tribunal could make was £10,000. The tribunal also had the power to order a party to pay a deposit of up to £500 if at a pre-hearing review it was held that their arguments had little prospect of success.

The Rules introduced in July 2013 widened the scope and potential scale of costs orders: the maximum costs order was increased to £20,000 and the tribunal gained the power to make a costs order where the party’s claim or response has no reasonable prospect of success. The maximum deposit order was increased to £1,000.

Whilst costs orders can be made either way, they tend to be made against a losing claimant and on the request of the winning respondent. Even when the maximum costs order was £10,000 there was evidence that costs warnings were being used to try to pressurise employees to withdraw their claims. This was acknowledged by the Government’s Resolving workplace disputes consultation in January 2011:

Anecdotal evidence suggests that in many cases, where the claimant is unrepresented, respondents or their representatives use the threat of cost sanctions as a means of putting undue pressure on their opponents to withdraw from the tribunal process. We would welcome views on this and any evidence of aggressive litigation.

In fact Citizens Advice published a paper in 2004 illustrating the extent of unjustified costs threats.  They reiterated these concerns in their response to the 2011 consultation.  They were not alone: Cloisters (whose members include three past chairs of the Employment Law Bar Association) noted that:

Regrettably, members of chambers have seen the oppressive use of costs threats by some respondents or their representatives.

Unite, the union, wrote:

The Union has no doubt that where the claimant is unrepresented the threat of costs sanctions is used by some respondents as a means of putting undue pressure on the claimant.

ACAS reported that:

…a few representatives make almost universal use of this tactic when faced with unrepresented claimants.

Organisations representing employers acknowledged the practice too.  EEF, the manufacturers’ organisation, stated that they were:

…aware that some respondent representatives use cost warnings as a standard tactic in defending claims.

They added that they did not support the practice.  Indeed they thought it counter-productive.

Given the widespread reporting of costs threats, and the concerns raised by organisations representing both employers and employees, it is unfortunate that the Government responded by doubling the maximum costs award – without including any protection for claimants.

£20,000 is a terrifying sum of money to most people and whilst a tribunal has to consider a party’s means when making a costs order, they are construed fairly widely.

Given the prevalence of respondents’ threats, one might think that tribunals regularly make costs orders.  But they are made less than 1% of the time. In 2013/14 the median costs order was £1000.  As the Citizens’ Advice Adviceguide website notes:

Your employer’s representative may say they will apply for you to pay costs but, usually, they are just trying to scare you into dropping the case or accepting a low offer of settlement.

So there is little to stop a respondent or their representative from making a cost threat, even where the claim has obvious merit.  The risk is that employees with legitimate claims are being put off getting justice because of cost threats that are not made in good faith.

Whilst tribunal awards are meant to be compensatory, there is a precedent for increasing awards where there is unreasonable behaviour: where a party unreasonably fails to comply with a relevant ACAS code of practice, the tribunal can order an uplift or downlift of up to 25% in compensation awarded.

So it would not be a huge departure from existing practice to allow the tribunal to order an uplift to compensation where a respondent has made an unreasonable costs threat.  The test should be a mirror of the test for making a costs order – that is to say the respondent’s costs threat must be found to be vexatious, abusive, disruptive or otherwise unreasonable or misconceived, or had no reasonable prospect of success.  This is a relatively high bar.  Just as a claimant who loses does not automatically have to pay the respondent’s costs, a respondent who loses should not have to pay an uplift simply because they have made a costs threat.  The respondent should have acted unreasonably before the uplift kicks in.

This modest reform is likely to have several effects, almost all of them beneficial.  There would likely be a reduction in the number of costs threats being made by respondents and their representatives.  All other things being equal, this might result in more cases going to a hearing as claimants would be less likely to drop otherwise meritorious cases in response to a costs threat.

However, adding an element of risk to costs threats may in fact encourage more early settlements.  Losing the opportunity of a ‘free hit’ on costs threats would likely focus the respondent’s mind on the hearing at an earlier stage and lead them to conclude that it is better to try to settle early.  Claimants may also be more receptive to settlement offers – as a number of responses to the Resolving workplace disputes consultation noted, costs threats can be counter-productive, antagonising claimants and making them more determined to see the case through to a hearing.

A reduction in the prevalence of costs threats might also mean that claimants would be better able to recognise and respond appropriately to genuine costs threats.  There would likely remain an element of bluff in the system, but it would no longer be a risk-free bluff.

The question of whether a costs threat is unreasonable should be a question of fact for the tribunal, as should whether a communication constitutes a costs threat.  A respondent who provides general information about costs should not be considered as making a costs threat, but the need for respondents to do this would be reduced if at the same time the ET1 form was amended to give claimants more information about the risks of costs.

If a communication is made and the claimant or their representative thinks it may be an unreasonable costs threat, they should be able to put the respondent on notice that should they win, they will ask the tribunal for an uplift. The respondent would then have an opportunity to withdraw the communication. If the respondent withdraws the communication they would be not be able to use it at a later stage as evidence that the claimant had acted unreasonably.

One potential pitfall of this approach is that claimants may start to disregard the risk of being ordered to pay costs because respondents and their representatives will become overly cautious about making warnings.

There are two answers to this.  First, the amended tribunal rules should be drafted in a way that makes clear that a costs threat is not automatically unreasonable just because the party who made it goes on to lose.  Second, an amended ET1 form would provide factual information about the circumstances in which a claimant might have to pay costs.

Whilst any law reform has potential risks, the benefits of this approach are potentially substantial – more cases settling early, more ethical behaviour, less mistrust between employers and employees, and increased confidence in the justice system for claimants.

It simply cannot be right that a claimant who is unfairly dismissed can be effectively compelled to drop their case because of an intimidatory costs threat.  These claimants are being doubly let down, by their employers and by the justice system.  That is why we need this reform.

How should we deal with ex-offenders?

Public debate about whether professional footballer Ched Evans should return to his job as a professional footballer following his release from prison for rape, provides a topical example of a wider problem. Over 9.2 million people were known to the police with a record on the police national computer in 2009/10: around 15% of the UK population. Research by Working Links suggests that three quarters of all employers would not employ anyone with a criminal conviction and that 74% of all newly released prisoners remain jobless. In relation to the purpose of employment in the wider criminal justice system, the CIPD found that

…employment is the single most important factor in reducing reoffending. Of the 144 HR professionals who have knowingly employed ex­offenders, only 8 have reported cases of reoffending. In addition, two­ thirds of HR managers state that employing ex­offenders has been a ‘positive’ experience.

Whilst many espouse the view that once locked up, the key should be thrown away, in 99% of cases this will simply not happen. This blog is not specifically about whether Ched Evans should be allowed to return to the game, or indeed on the necessity or desirability of those who have been convicted of very serious offences being back in the public eye,  there is enough comment elsewhere on this. What this is intended to address is how we deal with ex-offenders as a society. There is no substitute for Working Links’s research, but some of the most interesting parts of the paper deal with the reasons for employers either being reluctant, or refusing outright to employ ex-offenders.

In most cases, if not the lowest down on the list, a direct bad experience with ex-offenders was usually well towards the bottom. Of those who had knowingly employed an ex-offender, only 7% indicated a consistently “worse than expected” performance. Generally however, most employers expressed the view that they would be more likely to employ ex-offenders if there was more support and information for employers during the recruitment process and safeguarding thereafter.

What is worth taking from the majority of employers’ experience of employing former convicts however, is that the majority of the time, negative perceptions are not backed up by actual experience. The low employment rate amongst former offenders is undoubtedly a direct costs to the public purse in respect of jobseeker’s allowance, but also in respect of increased indirect costs by a higher level of reoffending. Ex-offenders who had a job to go to on their release from prison had  45%reoffending rate compared to a 58% overall: the lowest rate of reoffending of all of the groups for which employment status on release was recorded.

It is undoubtable that increased employment for ex-offenders is desirable, both from a societal self-interest point of view, as well as a more altruistic one. An interesting proposal has been the implementation of an “Offender Discrimination Act”, presumably along the same lines as the Equality Act, although the political will for this is never likely to be sufficiently strong to see any progress through Parliament.

There is limited protection in the form of section 4 (3) (b) Rehabilitation of Offenders Act 1974 which provides:

a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment…

This provides very little comfort to those whose convictions are not spent, or those without qualifying service (caselaw on section 4(3) found it was an automatically unfair reason for dismissal but those employees had qualifying service and there have been no cases yet on the extent of any exception to section 108 (1) Employment Rights Act 1996). Bearing in mind the very real problems that unemployed offenders cause, perhaps this is something that needs addressing as part of a more in depth consideration of the purpose of the criminal justice system. I suspect there are doubts that vast numbers of unemployed ex-offenders are a good thing.

 

UPDATE: Jamie Oliver has also hit the headlines since I wrote this post. His restaurant Fifteen, which donates all profit to charity, has taken on an apprentice who was previously sentenced to 4 years in a young offenders institution for rape of a child under 13. A representative of the restaurant has been quoted as saying.

…we decided that as he had served his sentence he should be allowed a place on the programme.  He has so far been an excellent student.

Hard Labour’s guide to UKEMPLAW election pledges

May of next year brings an election. Elections bring manifestos. Manifestos bring pledges. Some of them relate to what (over)-excites us here at Hard Labour: UK Employment Law. In the run up to the election we will be maintaining a page dedicated to Employment Law-related pledges. You can find it here or by clicking the link at the top of the page.

As always we welcome your input in keeping it as comprehensive and up to date as possible. To be included information must meet three criteria:

  • It must be an explicit pledge (e.g. we know Labour does not want to repeal the Human Rights Act 1998, but the table stays blank until there is a specific commitment on the issue);
  • The pledge must be officially made by or on behalf of the party; and
  • It must be available on the internet so that our readers can check it for themselves.