No to beer and sandwiches: An imagined opportunity

15 Jan 2019

If proof were needed that we are in uncertain and exceptional times, a look at the front page of The Times on the Friday before the crunch vote in Parliament on 15 January 2019, would have confirmed this.  The headline told of a Conservative Prime Minister seeking support from leaders from some of the largest trades unions in the UK for her Brexit deal negotiated with Brussels at the end of last year, and with much at stake.

If the approach to seek support in return for reassurances on workers’ rights, health and safety and environmental protections was exceptional in party political terms, the rebuff was swift and predictable.

The rebuff came apparently as there was little of substance on offer. But what could the Prime Minister have realistically proposed?

Early on in her leadership Prime Minister May sought to reposition her party as that of the working person.

However, little of substance has followed to substantiate those claims. Her credibility to deliver could have been substantially increased had she seized upon the general unease about the ‘gig economy’.  However, it is the Judiciary, rather than Government, which has taken on the mantle of scrutinising modern arrangements seen by many as underpinning an economy of low paid, unsecure work.  The Taylor Review has also being seen by many as a missed opportunity.  As we reported here last month, while there are some proposals for change in the Government’s Good Work Plan, the cudgels have not been taken up in the way that some might have hoped.

The Government’s blueprint for future relations in the EU, published in November last year, only mentions joint working between Brussels and the UK to safeguard workers’ rights in brief terms. There is nothing precise.

No doubt it was unrealistic to expect the Trades Unions to support the Prime Minister given the febrile (many say toxic) political mood around Brexit, and the fact that the leader of the Labour Party is prioritising a General Election.

Furthermore, looking at things from a strictly legal point of view, it should be remembered that as a general rule, no Act of Parliament can entrench rights such as they cannot then be undone by a subsequent piece of legislation. In other words talk of ‘guarantees’ lasting beyond the current Parliament is somewhat hollow.

However, in an imagined conversation, there are at least three areas where the Prime Minister could have offered much and potentially stolen some of Labour’s clothes (as well as those of the Trades Unions she was seeking to persuade).

First, the issue of low pay continues to dog the labour market.  That benefits continue to ‘top up’ the income of low paid workers is something that many find baffling.  The confusion between the National Minimum Wage, and the Living Wage doesn’t help, and with one in four of those on the (lower) National Minimum Wage being underpaid, and six million people being paid below the rate of the National Living Wage, there is clearly an issue that needs to be looked at afresh.

Secondly, the law of unfair dismissal, now almost fifty years on from its introduction, is a relatively uncontroversial area.  However, the period of qualifying service being set at two years (having been raised over time from six months when originally introduced), provides an unnecessarily long period of uncertainty for employees.  The qualifying period is often seen as being equivalent to a probationary period, but there will be very few roles indeed where an employer needs more than twelve months to assess the effectiveness of a new recruit.  Reducing the qualification to a year should also reduce the number of spurious, opportunistic discrimination claims where employees disaffected about how they have been treated realise they have insufficient service.

Thirdly, picking up on the issue of the gig economy, one of the underlying issues relates to the ‘status’ of an individual.  Are they self employed, a worker or an employee?  If there was a presumption that an individual earning, say, less than the national average income was a worker (or even an employee) this would reduce the amount of uncertainty (and litigation for employers).  In cases of genuine self employment, the employer could still seek to dispute the point, but it would be for them to successfully challenge presumed status. Of course it would increase costs for employers, but many employers seek clarity over their legal obligations; it is the relative few that seek to arrange their operation so as to avoid paying (say) National Insurance.

None of these areas directly relate to law which started life in Brussels. Alterations could be made irrespective of the precise form of Brexit. It would have been open to the Prime Minister seeking to indicate a new approach to employment relations to have heralded any of these, as a means of signalling her intent to seize the initiative, and reset at least some of the arguments about who seeks to protect the more vulnerable in work.

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