God Spare Us from the Uninformed Lawmakers...

Well, first we had Deputy Prime Minister Nick Clegg calling for a "new" right for employers to have "off the record conversations" with employees they wanted to leave because of misconduct or bad performance.

Except the right already existed in the form of "without prejudice discussions" to resolve disputes that can not be entered as evidence to Employment Tribunals.

Next, Government adviser Adrian Beecroft thundered that employers should have the right to ask employees if they intend to retire any time soon. Their inability to do so prevented panning ahead and was choking off the flexibility and innovation needed for entrepreneurial-led recovery.

Except, again, this right already exists and is explicitly set out as a right in guidance from the current Government to employers. Check it here.

And now.....

Norman Lamb,MP, Lib Dem, has called for employers to have a right to be able to offer employees a payment in return for which they will waive the right to claim unfair dismissal at an employment tribunal.

This just takes the biscuit. What the hell are we paying these MPs for?

Compromise agreements, where employers pay an agreed sum to employees to terminate employment in return for waiving their right to go to an employment tribunal, has been a feature of employment law since the early 1990s.

If our political masters are really keen to make laws, it would be helpful if, first of all, they could take a small portion of time to check out what is already law. The three statements from these supposedly expert, high-paid men betray a total lack of research and simply a wish to pander to the ignorant or deliberately devious agenda of the right wing press that prints repeated lies about it being impossible to dismiss anyone.

Twenty minutes with an employment lawyer would have put them right about their ingenuous "new" ideas. And maybe saved the public some wasted money paying them for unnecessary work.

Personally, I'd fire the lot of them for gross negligence.

And yes, as long as I followed a fair process, if I was their employer, I could.

Oh, it turns out, I am their employer - and so are you!

Perhaps we should do something about their moves to allow employers to sack anyone with less than two years' service without needing any reason at all; and to remove employment rights for the millions working for small businesses. Smacks of definite breakdown of mutual trust and confidence...

"You fool! Check your facts! You're fired!"

The Spirit of Free Enterprise

The Guardian newspaper is reporting that the Business Secretary, the foot-in-mouth ballroom dancer Vince Cable, is likely to exempt small businesses from most employment law protection for staff. It isn't clear yet, but the exemptions seem set to reduce further the rights of millions of ordinary people, potentially allowing their employers to bully them, treat them unfairly and dismiss them with some ease. Although the Con Dem Government already accepts that Britain has one of the most "flexible" work forces in the world, apparently some folk are not tugging forelocks far or flexibly enough not to traumatise our nascent entrepreneurs. So what little practical protection exists for swathes of low paid, temporary, part-time, often female staff, will be taken away.

All to help unleash the spirit of free, but evidently not fair, enterprise.

Your Employment May Be At Risk

The Guardian reports (10 November) that Home Secretary Theresa May has been told by Government lawyers that the head of the Borders Agency, Brodie Clark, is highly likely to win his claim of constructive dismissal followingher very public intemperate outbursts about his alleged handling of passport checks over the summer and apparent background briefings at her behest that he was a “rogue” civil servant. She gave him no right to defend himself although he had been suspended and she pre-empted the outcome of any investigation and hearing into his conduct. She may not have been his immediate boss, but was part of his senior management line and so this breach of both civil service procedure and good practice, coupled with her damning comments about him, put him in a strong position to claims around £135,000 of public money in compensation.

It is far from reassuring to know that someone as closely connected with the workings of government so readily dispenses with (or perhaps simply does not recognise to begin with) the most basic premises of natural justice – that someone alleged to have done something wrong should have a chance to defend themselves through some sort of fair process and be presumed innocent until found guilty (even under the lesser test of “reasonable belief on the balance of probabilities” applied to employers dealing with their staff as opposed to “proof beyond reasonable doubt” required for court cases). Yet here we have May, who does appears on most levels to be a rather "rogue" operator herself, supported by the Prime Minister in her frankly dysfunctional, blame-shifting behaviour.

But at least Brodie Clarke will be able to defend himself by taking a claim to an employment tribunal. Unlike a growing number of British workers, he had employment protection against unfair treatment by his employer, a right that used to kick in after twelve months service.

Lib Dem Employment Minister, Ed Davey, has now decided to increase this qualifying period to 24 months – so, if you or anyone else has less than two years service, your employer will shortly be able to treat you just as badly or even worse than Brodie Clark experienced at the hands of Theresa May, and you will have absolutely no redress.

Likewise, while ruling out supporting recent proposals by David Cameron’s adviser (and also funder and holder of various seven-figure public contracts), Adrian Beecroft  to allow employers to dismiss staff without any explanation by giving them a payment equivalent to state redundancy pay (capped at less than £600 for each year of service), Deputy Prime Minister Nick Clegg has repeated his own wish to introduce a right for employers to have “protected conversations” with staff that cannot be used in any subsequent tribunal proceedings.

Such a right already exists where there is a dispute such as a performance management, disciplinary or grievance case ongoing – employers can have a “without prejudice” discussion, usually linked to agreeing some sort of compromise payment with the member of staff. However, Clegg wants this right to exist even where there is no active dispute. Basically, he wants an employer to have the right to talk to an employee off the record, regardless of the issue. So, your boss could say to you “I think you are useless, you should leave your job as fast as possible or I will make your life hell” and, if he or she has declared it a protected conversation, you could do nothing about it even after two years’ service.

Clegg’s words make clear that he is pretty well signed up to the belief that employers should have much stronger powers to discipline and sack staff than even Margaret Thatcher allowed; he forgets that 85% of workers are employees and, although there is a striking blindness among many that such arbitrary powers won’t affect them, I have come across all too many people from all walks of life who have been astonished when it has been their turn to be on the receiving end of pernicious behaviour by their employer.

Deregulation did nothing for the banking industry; why should anyone think for a moment that it will help the employment relationship which, at its deregulated core is still founded on the centuries old laws of Master and Servant?

Clegg and his allies are proposing nothing less than a bullies’ charter.

Theresa May must be licking her lips.

Sacking with CONfidence - Part 4

Continuing an occasional, but all too frequent, series on the Coalition's "reform" of employment law in Britain.

Capitalism to "Inspire" - you really couldn't make it up!

Yesterday we were treated to a chilling insight on how the Conservatives view British employees and their rights. A report on employment laws and their impact on the economy, commissioned by Chancellor George Osborne and supported by David Cameron, was leaked. Written by Tory supporting venture capitalist Adrian Beecroft, who has enriched himself to the tune of £85 millions in spite of the apparent encumbrance of UK employment law, it uses the most lurid and vituperative terms about British workers and the alleged need to bring us all the heel.

The report blames Britain's economic woes on the supposed inability of employers to fire people at will if they are underperforming. Beecroft wants a "compulsory no fault dismissal" system whereby employees can be fired without redress to an employment tribunal via a simple payment equivalent to the state redundancy payment (currently a maximum of £400 for each year of service). So, if after working for an employer for 10 years, your boss decided you were not performing well enough, Beecroft's view is that there should be no need to undergo any particular process of identifying and warning about the performance issues - if your company gives you £4,000, it is straightforward curtains to your career.

The report goes on further to make a list of complaints about employment protection given to the tens of millions of us who are employees (over 85% of the workforce!) which demonstrates lamentable prejudice, ignorance and pretty sloppy research (or lack of it) by Beecroft:

Beecroft donated £530k to the Tory Party: cheaper staff
could free up so much more!

- it demands  that employers should be able to have off-the-record discussions with employees with whom they are in dispute. They already can! Current employment law already allows without prejudice discussions in disputes which cannot be entered as evidence in tribunal proceedings.

- Beecroft complains that employers can't ask employees if they intend to retire and grumbles that this slows down recruitment and labour flexibility, apparently damaging the wealth of the nation. Again, employers can already do this! You can read the guidance from ACAS about how to do this in a fair and safe way HERE.

- Beecroft complains that the new rules protecting agency workers from summary dismissal and exploitative low pay arrangements will disadvantage Britain in the global economy. Yet he ignores the fact that the rules have come about as part of a European-wide directive and have to be the same in our nearest competitors.

All in all, it is a bigoted, ill-informed rant against the relatively low levels of protection enjoyed by British workers. And while some Lib Dems try to disassociate themselves from it, Nick Clegg made strikingly similarly ill-informed comments about performance and retirement only the day before - who knows what he's been reading lately?

It is easier, cheaper and faster for employers to fire British workers than in most western economies and it is disingenuous for employers and top managers to lay the blame for our woes at the feet of ordinary workers. While most employees have seen their pay static and reducing in real and even absolute terms over the last two or three years, Boardroom pay and bonuses have continued to climb relentlessly.

The Business Secretary, Lib Dem Vince Cable, has rejected the report today, insisting workers need protection otherwise their job insecurity will affect their spending and damage the wider economy. This sounds good until you reflect that Vince and his Lib Dem Minister, Ed Davey, are at the same time busy removing employment protection from millions of workers who will now have to work for two years rather than one before they will be protected from unfair dismissal. This is being done using very similar arguments as Beecroft does about labour flexibility. It was also Cable's department that rushed out a so-called Employer's Charter, quickly re-christened as a "sacker's checklist" last year to remind employers just how easily they can already dismiss staff. It makes the bad part of you wonder if the leak of the extreme Beecroft worldview was deliberately done to make Cable's current plans appear a little milder by comparison - but surely they wouldn't do that, would they?

The absence of trade unions from most of the British workplace has never been more in evidence. Employees face a difficult time ahead as first their employment and, coming up next, sickness protection are whittled away by people who in many cases have never really held down a normal type of job.  Capitalism, yet again, is busy blaming and punishing others for its own failings - biting back, like the cornered rat that it truly is.

http://www.comicsbybrad.com/2008/12/17/youre-fired/

Twisted Cable

The surreal freak show that is the Con Dem Coalition continues apace.

Talking to the GMB trade union, Lib Dem Business Secretary Vince Cable, warned the unions that any significant increase in strikes in opposition to Government public spending cuts could be met with legislation to restrict further the right to strike. Condescendingly, he suggested that the current level of disputes are ok and so he won't legislate - unless people start to use their right to strike. It is a twisted, deceitful logic that is being employed - you can have a right, as long as you don't use it. All the more insincerely patronising are his "this will hurt me more than it will hurt you" protestations, like some old headmaster admonishing the naughty boys. Who does this incompetent sell-out of a man think he is?

The right to collective strike action has been a mainstay of workplace rights ever since the Liberal Party Government reversed the Taff Vale Judgement back in 1901. The judgement used common law to hold trade unions liable for any costs incurred or profits lost by employers as a result of a strike - effectively crushing any legitimate right to strike. Following massive campaigning by unions and by Labour and Liberal politicians, the Liberal Government elected by a landslide in 1906 reversed the decision through the Trades Disputes Act, which removed trade union liability. This concept, of a right to strike without liability, has underpinned even the Thatcherite legislation of the 1980s. Its latest manifestation is in the Trade Union & Labour Relations Act passed by the Conservatives in 1992.

British employment law is at its heart still governed by common law nostrums on the law of contract and, within that, the enacted laws of Master and Servant which were introduced in the 18th century and which require "obedience and loyalty" of employees towards their contracted employer. Later statute laws on employment conditions have modified but not replaced this inherently inegalitarian concept, which is also at the centre of the capitalist economic system. Given that employers, particularly now in the form of large, financially powerful and impersonal corporations, hold the whip hand in this relationship, being effectively in control of the livelihoods and career prospects of their staff, the right to collective action by employees via their trade unions is utterly essential to provide any sort of counterbalance.

As the Liberal Prime Minister, Henry Campbell-Bannerman, argued when he told the Commons back in 1906, the protection for unions was essential because:

The great object ...was, and still is, to place the two rival powers of capital and labour on an equality so that the fight between them, so far as fight is necessary, should be at least a fair one.

Yet here we have a leading light among Campbell-Bannerman's successors a century on set to turn the clock back - not because unions might break the law, but because they might use their legal rights. Of course council and other public workers might strike against plans to cut services and make jobs redundant - these are perfectly legal as long as a strike ballot is held. And why on earth wouldn't they? What other weapon do they have to protest or try to save their jobs?

New Lib Dem employment rights policy announced

The unions are central to the defence of needlessly beleaguered public services - and popular in doing so. Polls repeatedly show that the public have much greater faith in the trade unions now than for decades and infinitely higher trust in them than in our political leaders and the corrupt business class whose interests our government so keenly serves. Strikes will come as the cuts bite, as services are withdrawn and people suffer - and if Cable's response is to try to remove the right to strike in order to suppress opposition, he and his ilk will be inviting strife probably unknown in this country for nearly two centuries.

Dangerfield wrote of the passage of the Trades Disputes Act as a seminal moment in The Strange Death of Liberal England, his analysis of the collapse of the once dominant British Liberal Party. A century on, by in effect seeking to repeal the principles it established, Cable looks firmly resolved to kill his party all over again.

And no one will miss it.


And now for something TRULY awful: Lib Dem sycophancy at it's very worst.

Sacking with CONfidence (Part 2) - The Employers' Charter

Just an update following on from last week's post about the Government's plans to double the period of time people will have to work without employment protection from 1 to 2 years.

The Government apparently also feels employers should be reminded of just how far they can push their workers under existing legislation - no need to wait for legal changes. Cable has issued an Employer's Charter pinpointing all the stuff employers can already do with relative impunity - so why he also feels the need to reduce coverage of employment protection, God and David Cameron alone know. Presumably it is either a throwback to his days running corporations like Shell or simply an ideological move intended to maximise "employment flexibility" (this from a man whose careless gossip a few weeks ago would have put him out of a job had he committed his misconduct in any normal workplace).

So, just in case you are an employer who has forgotten what you can do, here is Vicious Vince's timely reminder:

"As an employer - as long as you act fairly and reasonably - you are entitled to:
- ask an employee to take their annual leave at a time that suits your business
- contact a woman on maternity leave and ask when she plans to return
- make an employee redundant if your business takes a downward turn
- ask an employee to take a pay cut
- withhold pay from an employee when they are on strike
- ask an employee whether they would be willing to opt-out from the 48 hour limit in the Working Time Regulations
- reject an employee's request to work flexibly if you have a legitimate business reason
- talk to your employees about their performance and about how they can improve
- dismiss an employee for poor performance
- stop providing work to an agency worker (as long as they are not employed by you)
- ask an employee about their future career plans, including retirement." 

Careless talk costs jobs - except in Cable's case

The inclusion of the opt-out from the 48 hour working time directive is notable in that Britain's exemption from European law on maximum working hours has long been a cri de coeur of the Lib Dems: their European MPs have repeatedly voted against any attempt to reform it to reduce Britain's long hours culture and bring us in to line with the rest of Europe. This emphasis is definitely not one they can blame on the Tories - Mr Cable is simply showing his party's true colours.

It is deeply questionable as to why anyone thinks this guidance is even remotely required. There is even a printer-friendly version, designed like a little poster - perhaps for laminating and then posting on noticeboards to remind staff of their position or scare them into compliance - a bit like these old Victorian factory notices setting out fines for talking or working too slowly.

The Good Old Days?

Issued at a time when more and more jobs are being lost and workers feel increasingly vulnerable, employers seem on the whole already more than fully aware of their powers.Yet pandering to right wing mythology, Cable's missive has been sent out along with a letter from David Cameron stressing how important it is to butter up big business by sacrificing employees' rights - notwithstanding the fact that Mr Cable's Charter somewhat undermines the Prime Ministerial picture of workplaces where employers' are tangled up in intractably thick forests of workers' rights.

"Speak to businesses and they’ll say something else: that the balance of rights is tilted far too much in favour of employees over employers. They say it’s become far too difficult to hire and fire workers, and far too easy for those workers to make unscrupulous claims against them. This not only costs our businesses a lot of money – on average around £4,000 for defending a tribunal case - but takes up a huge amount of time and effort too. Vitally, it makes businesses think twice before taking people on.
I’m determined we shift some of that balance back." - David Cameron

Good to see some 1980s "balance" in the workplace again. Isn't it? (Though, it has to be noted, all these powers were already in place under the Nu-Labour Government).

Sacking with CONfidence

It was only a matter of time: having picked off the disabled, the elderly, the public sector and others, the Conservative Government is now turning its attention to slashing employment rights of British workers. The Business Secretary, the loose-talking Lib Dem stooge, Vince Cable, who used to work for such enlightened employers as BSkyB, has just announced a consultation process on changes to employment protection law. Among other measures designed to make it ever harder for workers to secure any protection against ill-treatment, the proposals will double the period of time employees need to work before gaining legal protection against unfair dismissal. If, as is almost certain, this neo-liberal "flexibility" measure goes through to the statute book, staff will have to work for two years rather than the current one year before they can seek any redress if their boss just looks at them one day and tells them to get out.

Government Gangmaster-in-chief Vince Cable

The Great Myth is that the current employment protection laws we have are dreadfully complicated, cost employers millions of pounds and make it virtually impossible to sack anyone, even if they are useless at their job/thieves/never at work, etc. The media regale us again and again with tales of people getting hundreds of thousands of pounds because their line manager looked at them the wrong way - political correctness gone mad!

Except none of it is true.

Employers can pretty much dismiss with impunity as long as they follow a set procedure and have reasonable grounds for their decision. Only if they dismiss someone (presently with more than 12 months service) without good reason or without following a process that complies with the ACAS Code of Conduct is there any chance that an Employment Tribunal will find against them - and in total just one in ten submitted unfair dismissal claims actually reach a full hearing and win.. Even if an employer loses a case and unfair dismissal is found to have occurred, the average award made to an unfairly dismissed employee is a paltry £9,120. The median award was just slightly over £4,000 in 2009-10.

The average award is therefore about five months' pay for the average earner, even although they have been found by law to have lost their livelihood.unfairly and will almost certainly struggle to find other work. And even worse, in 40% of cases where unfair dismissal is found to have happened, no award at all is made. So, in other words, less than 6% of submitted claims of unfair dismissal end up in a tribunal hearing where a financial award is made against the employer.

To claim this protection makes it difficult for employers to hire and fire staff, stifling entrepreneurship and preventing job opportunities for people who need work, is quite frankly a pernicious lie. Doubling the period without protection will help no one apart from unscrupulous slavers who want even longer to be able to "let people go" with absolutely no need to account for their actions, regardless of the impact on people and society.

There are, to be acknowledged, some "no-win-no-fee" legal firms that do sometimes lead to groundless claims being submitted in the hope of getting a compromise payment from a former employer, but tribunals already have the power to dismiss frivolous claims. Doubling the period of protection will by contrast simply leave innocent people vulnerable to the employers' they depend on for their livelihoods even longer - a shocking power imbalance. Ironically too, it may lead to some reluctance among staff to look for new jobs, reducing healthy turnover in many companies or organisations - if you are reasonably secure in your current job, why would you want to go and find another one if it meant that for 24 months you could be dismissed on a whim?

If society is about more than making money for owners, serious reform of our employment laws is needed. Capitalists argue that employers create employment for workers and so must be given the advantage in our economic arrangements. For this reason, British employment law is even now based on the traditional legal concept of the rules of "Master and Servant", whereby the master (the employer) has an absolute power over the servant (the employee) who in turn has an absolute obligation to obey. Thanks largely to the efforts of the trade unions, statute law has mitigated this appalling construct to some extent, but it remains core to the way the employment relationship functions. Yet where would employers be without their staff? As often touted in management manuals and corporate propaganda, businesses are their people - so the law should expect businesses to treat their people with some respect and dignity.

This blog has argued for a fundamentally different, socialist society. In its absence, the only fair alternative would be employment laws which provide protection from day one of employment - this would still allow dismissal if for genuinely fair reasons and via a thorough and fair process; but where unfair dismissal is found, the damages incurred by the employer should be punitive rather than the piss-poor half-hearted compensatory ones that currently apply.

The media and the Government of course will rail that such an arrangement would damage business. Yet even many of the people who write such twaddle ignore the fact that they are employees themselves, along with over 85% of working people and as such potentially subject to the arbitrary action of their employers. Fortunately, not all employers behave in unfair or arbitrary ways, but many people have suffered greatly at the hands of those who do, and if Vince Cable and his gang-masters have their way, these hands will be even more maliciously powerful than they have been in nearly two decades.