The idea of a single body with responsibility for bringing bite to the enforcement of employment rights appears to be gaining increasingly in popularity. Daniel Parker takes a look at what the current proposals mean for both employers and employees.
The future of UK employment law is currently a hot topic in political circles, with much discussion about the extent to which worker entitlements may change in the coming years. Besides this high-level and headline-grabbing discussion about the specific rights employees enjoy, there has been another lively and perhaps equally important conversation about the way in which existing laws are enforced.
Though the regime of Employment Tribunal fees has ended, employment-related claims remain significantly (over 35%) fewer in number than their pre-fee levels. Amongst those claims which do make it to the Tribunal, certain types are noticeably underrepresented, such as disputes relating to the National Minimum Wage and the Part-Time Worker Regulations. This by no means suggests that such issues are unimportant to individuals. Part of the relative lack of these claims may be due to the fact that, as they tend to be lower in value, they can be more easily resolved without disproportionate recourse to litigation. On the other hand, however, it may be that employees with these complaints feel unable to raise them formally, whether due to financial, emotional or time costs; being unaware of their employment rights; or fears over job security.
The Tribunal is not the only means by which employment rights are policed and enforcement functions are spread amongst a number of agencies. HM Revenue & Customs has responsibility for enforcing the National Minimum Wage. Since 2005, the Gangmasters and Labour Abuse Authority has focussed on specific sectors where there is perceived to be a higher risk of exploitation, running a licensing scheme. Agency workers can complain to the Employment Agency Standards Inspectorate. In addition, the Health and Safety Executive’s remit also extends into the workplace.
However, these bodies and functions have developed in piecemeal fashion and many employees may not be aware that they benefit from these further sources of protection. A number of European countries have a more unified body with overarching responsibility for employment law enforcement generally, such as Ireland’s Workplace Relations Commission or the Netherlands’ Inspectorate of Social Affairs and Labour. While the office of the Director of Labour Market Enforcement was introduced in January 2017 to act as a liaison of sorts between the UK’s various enforcement bodies and provide strategic guidance, there are signs of a growing preference for real consolidation.
Following the Good Work Plan, the Department for Business, Energy & Industrial Strategy launched a consultation in July 2019 regarding the possibility of a single enforcement body for employment rights. The consultation closed on 6 October 2019 and we now await the outcome. Separately, in September 2019, Labour proposed a ‘Workers’ Protection Agency’, to be given “extensive powers to bring prosecutions and civil proceedings on workers’ behalves”.
It is suggested that each of these bodies is likely to take a more proactive role in ensuring compliance with employment legislation. Insofar as this reduces the burden upon individuals to raise individual complaints and pursue them through increasingly lengthy and costly Tribunal processes, this may deliver more cost-effective, immediate and helpful redress.
As the outgoing Director of Labour Market Enforcement, Sir David Metcalf CBE, has recognised, establishing a unified enforcement authority to achieve this is likely to be no small task, requiring extensive planning, implementation and funding. However, if this is indeed the direction of travel, it may herald a very different approach to employee relations issues. This is particularly so if matters which currently only give rise to employment claims for perhaps minimal financial compensation might instead trigger more substantial civil or criminal penalties or fines.
This does not necessarily represent bad news for employers or a total revolution of the existing system. It is likely that, for a great many issues, parties will still be encouraged to resolve matters internally and, if necessary, with the assistance of the Tribunal. There are no suggested changes to the Early Conciliation system or ACAS’ role more generally. Moreover, a more proactive approach to enforcement may favour the compliant majority of employers. As the Government’s consultation paper recognises, to permit certain unscrupulous organisations to breach employment protections with impunity affords them an unfair competitive advantage.
However, the scope and importance any single employment rights enforcement body is highly uncertain at present particularly against the background of an imminent general election. Even once it has been consulted upon, formed and funded, the day-to-day impact of such a body will depend greatly upon its enforcement priorities, which may well still remain focussed on the most vulnerable workers in specific sectors, as at present. However, there is little doubt that the emerging consensus about the need for an organisation to monitor and enforce certain employment rights hints at an appetite for real change.