Your Employment Is At Risk

As the Green Party votes on its approach to Brexit, some thoughts on what the real priorities should be for party policy on the British workplace. This article was first published on the Green Left website and in the Watermelon newsletter distributed at Green Party and Global Greens conference in Liverpool.

In the run up to the referendum, the Leave campaign talked repeatedly about the need to remove EU regulations that allegedly hold back the UK. As the debate descended into little more than internecine Tory grunting, neither side offered any explanation of what EU regulations cover, leaving voters to wonder what they were never mind their merit. And since the vote for Brexit, the Greens’ focus on staying in the Single Market may mean that we lose sight of the need to defend what truly is at risk – and what sort of society we could be looking to build instead.

While there is no question that a wide range of employment rights, especially in respect of discrimination, do derive from EU directives and agreements, many more do not but are arguably even more at risk in the gung-ho “entrepreneurial” environment May and her ilk are seeking to craft. While we argue about access to a free trade zone that is in many respects inimical to our long-term aims of localised and sustainable economics, employers’ think tanks are joining with their Tory allies to seek a bonfire not so much of EU regulations but of all employment rights.

Their adopted tone however is not the shotgun blast of the past, but rather an insidious, devious range of tactics aimed to divide employees and play people off against each other. The “choices approach” where employers offer staff a menu of rights linked to their performance at work – i.e., longer maternity leave for prized workers; varied periods of probation before employment protection is activated, etc – will be formulated to appeal to enough people, initially, to gain some level of acceptance. All this is proclaimed in the name of national competitiveness, when in fact the collective concept of “national” couldn’t be any further from the reality of corporations carving up even more of the cake for themselves. Having in effect destroyed collective trade union rights, they are now finally coming for the rights of individual employees and workers.

Yet we are mistaken in seeing the EU as a guarantor of our workplace security. Its’ flagship Acquired Rights Directive (better known in the UK as TUPE) offers little more than a fig-leaf of protection to transferred workers. Similarly, Brussels and the ECJ were nowhere to be seen when the Lib Dem Ministers in the Coalition introduce fee arrangements which have led to an 80% collapse in employment tribunal hearings.

The protections we have against unfair dismissal, the right to a written contract, the right to equal pay for work of equal value, the right to paid holidays and to bank holidays, the national minimum wage – all these come from British law, not European.

So are Greens making a strategic mistake in putting our energy into remaining in the single market in the belief that it protects workers? In truth, what workplace protections it does require are ultimately about ensuring no single member can undercut another rather than about the inherent rights of workers. It is about regulated capitalism, not human rights.

As the EU faces major “populist” challenges to liberalise its economy, in spite of the fact it already largely has been, Greens need to argue for positive rights in the British workplace as these will be squeezed out regardless of our membership status. It is imperative we use this time of change to advocate for the type of economy we want to develop, one which is not dependent on the protection of some distant behemoth of questionable repute, but rather one that rests firmly and deeply in our society and its shared values.

Now is the time to be calling for a business environment that gives breaks to co-operatives, community enterprises, employee buyouts and takeovers. Now is when we should be advocating hardest for the living wage AND the citizens’ income (not either or, but both) and even for some level of protectionism as we take key industries into democratic ownership. Corporate law should be transformed to end its cosy legalisation of profit-maximisation as PLCs sole objective to instead a range of duties to employees, communities and the environment. And we must be clear that we are happy to show the door to those who threaten to go – that is real “taking back control”.

Alongside this, we should be arguing for a root and branch change to the whole employment relationship. Incredibly, though maybe unsurprisingly, our employment rules still rest on the 18th century Master and Servant laws. While heavily modified over the years, the idea that you are a servant and your employer is your Master remains the central legal concept in the employment relationship. In any democratic society, this is a complete nonsense and it is time to turn it on its head, prefiguring of course a transformation of ownership rights and the control of enterprises.

For ecosocialists such as those of us in Green Left, there is also a wider debate to be had as we move towards a world where technology has the capacity to set more and more free from labour and how the abundance in both time and resources is used equitably and sustainably. The day is not far away when, as human labour is less central to material productivity and service delivery, the whole concept of paid employment can be done away with. As we develop that argument, of course, we will be charged with everything from utopian dreaming to economic treason, but as we know, if we don’t map the path for real change, capitalism will do it for us and take our planet in a very different, very hostile and very dark direction.

Sacking With CONfidence: The Epilogue - "You're Fired!"

This is the last in an occasional series of blogs on the Coalition Government's assault on employment rights - the rights that give all of us just a tiny bit more security against pernicious treatment and even summary dismissal from our livelihoods.

It is the last because the assault is over and, I am sorry to say, the Lib Dem/Conservative has had its way. All of us who are employees - which is about 85% of the working population - are substantially less well protected than before 2010.

Since then, with the piss-taking pseudo-leftwing Lib Dem Vince Cable at the helm of employment "reforms", the Government first off extended from one to two years the length of time someone has to work for an employer before they are protected against unfair dismissal. Let's get that in perspective: at any time in the first 24 months of working for an employer, you can be dismissed for absolutely no reason at all. Your manager doesn't like you? You're fired! You come in late because the bus was cancelled? You're fired! Your boss doesn't like the colour of your jacket? You're fired!

And you've absolutely no comeback. Nada! Zilch! Forget the Daily Mail stories about pots of gold in compensation - you're out and you're not coming back; you've not got a penny and who will ever employ you again, a sacked worker?

As long as you survive two years in a job, you do finally acquire the right to not be unfairly dismissed. Note - unfairly. Because always, under all employment protection laws, employers have always had a right to fairly dismiss you. So, if you are persistently late, and you are warned not to be, you could be fired fairly. If you steal or assault a colleague, you could be fired fairly - as long as you were given the right to respond to any accusations against you and the employer's decision to dismiss was based on a reasonable assessment of the balance of probabilities: proof beyond reasonable doubt was never required, just a fair investigation and a meeting to hear the employee's side.

How would something as plainly reasonable as this constitute the shocking red tape strangling our apparently cowed entrepreneurs that Cable and co made out it was? Yet almost from Day One, with his Employers' Charter, he was busy reminding employers of how easy it was to get rid of people - and promising to make it even easier. He restored the qualifying period to the level Margaret Thatcher set it at. And more, much more than that.

In the past, if you were dismissed, you could seek redress for being unfairly dismissed if you had twelve months' service (back in the 1970s, it was six months). You could go to an Employment Tribunal, which would hear your case and your employers, and if it found in your favour, it could award recompense. Contrary to the handful of unusual settlements for large sums of money, most awards were low: on average, rarely more than £9,500 with the median award around £4,500 even although you had been found to have unfairly lost your employment.

But this was still too much for Cable. So he brought in a new barrier to workplace justice: at the same time as he viciously restricted the already small amount of legal aid available for employment cases, he introduced charges to lodge a case. If someone wants to pursue an unfair dismissal claim now, they need to pay a minimum fee of £400 - even although logic dictates that in many cases, dismissed and out of work, the complainant will not have this money, or at least not be able to afford it. And, even worse, if their complaint is about discrimination on grounds of sex, race, disability, religion or sexual orientation, then although you can bring a case even before two years' service, you have to pay a fee up to 300% higher than the unfair dismissal fee: over £1,200.

Some remissions of charges are permitted for the very poorest, but if your household has more than just £3,000 in savings, you have to pay in full  - and evidence shows that this very disproportionately affects women. This is borne out further by the fact that of all categories of cases, the fall in sex discrimination claims is the highest. Similarly, there has been a 68% fall in claims for non-payment of wages; when workers have to pay £390 to pursue such a claim, can you imagine why the numbers have fallen?

Percentage fall in tribunal claims by type of claim

Type of claim	Fall in claims
Sex discrimination	77%
Disability	58%
Race	57%
Sexual orientation	75%
Age	63%
Religion and belief	60%
Pregnancy related dismissal	59%
Equal treatment rights for part-time workers	79%

So, let's recap: if you are dismissed because the boss didn't share your sense of humour or you got him the wrong sandwich at lunchtime, you pay £390 to take a case forward. That's bad enough. But if you were sacked because you refused to sleep with the boss, you have to find £1,200. But of course, Cable hails from the institutionally sexist and bullying-riddled Lib Dems, so its easy to see where the mindset originates for this sort of "justice". He also knows quite a bit about charges and fines although in his case he has us to bail him out.

And the outcome of the new tribunal charges?

Well, after just 12 months in operation, the new rules have delivered what Cable and the Conservatives wanted. The employers' organisation the CBI has welcomed the Government's "unclogging" of tribunals and now The laughingly titled Ministry of Justice has reported that there has been a 79% decline in the number of employment tribunal cases. Four out of five claims have been stopped in their tracks.
Little wonder. And shame on Clegg, Cameron and co for claiming to support "hard-working parents" and "alarm clock Britain." Now earning 10% less now than pre-recession, never in forty years have these hard-working people been more vulnerable and less protected against the whims of their profit-seeking employers.

And no one gains, no one but the already cash-soaked corporations that dole out billions in bonuses and dividends off the backs of increasingly marginalised workers and exploited consumers. The majority - the vast majority - of us see our rights diminished, our security reduced and our livelihoods ever more dependent on the random goodwill of employers rather than the basic reassurance of a modicum of employee rights. It is hardly a recipe for a happy, productive workplace or a successful country.

Vince - hasn't always paid his own charges promptly.

But the alarm clock will soon be ringing for the Cabinet of Millionaires: in just over one year, it will be time for the 85% of us who are employees to sling these duplicitous charlatans out without notice and tell the Con Dems, "You're fired!"

Sacking with CONfidence (Part 5)

Yet another update on the right-wing populist and often ignorantly uninformed slaughter of employment law and protection of employees in Britain.

So yesterday we were treated to the spectacle of Mrs Windsor, who has never attended a job interview in her life but who has a pretty mean track record when it comes to maltreatment of her staff in the low wage Royal Household, informing us how her Government intends to create more flexibility for employers. This will give them even more opportunities to rip off customers and staff alike by making it even easier for people to be dismissed without any chance of recompense. Lizzie's family has already got form in trying to break employment tribunal rules and withhold legal evidence, so it seems she is happy for her Ministers to make life a bit easier for the likes of her son in future employment disputes.

Get to work and be grateful, peasants!

Not content with doubling from one to two years the period of time employees new to a company can be dismissed for absolutely no reason at all, the Con Dem Government has brought forward  a series of measures to make it much harder for people who have been dismissed to raise any complaint at an Employment Tribunal. the quality of the legislation mooted in the Enterprise and Regulatory Reform Bill betrays the fact that the legislation is pretty much about Tory prejudice against all employment rights rather than a serious attempt to reform the law.

For example, in the name of reducing the number of tribunals, people pursuing a complaint will have to first lodge their complaint with ACAS in an attempt to reach a conciliated settlement. This appears to be in total ignorance of the fact that this already happens - all tribunal claims are automatically lodged with ACAS and a conciliation officer is appointed to try to broker a solution. If what is perhaps implied here is that there is a new stage of conciliation via ACAS before you can even lodge a claim to a tribunal, this suggests a number of inbuilt flaws, which probably combine hostility towards employees with a lack of understanding of how the current system works.

1. If the conciliation stage is a separate phase to the tribunal complaint, this seems to be adding to red tape rather than reducing it.

2. Tribunal awards usually pay compensation for loss of earnings to successful complainants for the period of time from the end of employment to the conclusion of the tribunal process. An additional phase of conciliation will extend this period of time, which means either employers face higher costs at the end if an employee is successful OR the Government is going to reduce the amount of compensation available even when a claim of unfair dismissal is successful - any ideas which option this Government might take?

3. Nearly two-thirds of employment tribunal complaints are already conciliated - half by ACAS and the rest privately. Few people enjoy taking their employer to a tribunal - I know, having been involved on both sides often enough - so the conciliation process is already pretty effective. Dragging things out when conciliation is not possible will simply make the process much harder on many levels for both sides - but perhaps the Government calculation is that this will deter people from asserting their rights even when they have been bullied or harassed out of their livelihoods - so much for justice.

4. The tribunal system is in much need of reform: it works essentially for two groups alone - lawyers and people with tenuous claims. People who have genuinely lost their jobs unfairly get piss poor awards averaging less than £9,000 - the fantastic six figure sums touted with some furious fanfare in the likes of the Daily Mail are news precisely because they are few and far between. However, the current round of so-called reform will do little to change this. Instead, it will simply deter yet further people in vulnerable situations from asserting what tiny amount of power they have in the employment relationship, which remains even now governed at its core by the ancient laws of Master and Servant.

In the despair of the Lib Dem wing of the Coalition, a few of their number have suggested that they might not be so enthusiastic about these new proposals, but let it not be forgotten that the most pernicious changes to employment rights so far have been driven forward by Lib Dem Ministers in the name of cutting red tape, and even their adjustments to existing laws on family leave (actually a confirmation of plans put in place by the Labour Government pre-2010) include a reduction in maternity leave rights for expectant mothers.

But then, the Lib Dems have been weak on employment rights for people for a long time now, ignoring the fact that over 85% of the workforce are employees and so the protections afforded against arbitrary dismissal are important to a large number of us ordinary mortals. In 2005, Clegg's predecessor, the supposedly social democratic Charles Kennedy fought the General Election on a platform of seeking "a bonfire of the red tape" that allegedly stifles employment in the UK.

Seven years ago, in my final days of Lib Dem membership, I was irate about reading that their MEPs were supporting the continuation of the British opt-out of the European Working Time Directive, which has prevented workers from having to work excessive hours across the Continent - apart from in Britain thanks to the opt-out negotiated by the Tories in 1992. I wrote to the then leader of the Lib Dem MEPs, Chris Davies. His reply could easily have come from any Tory backbencher, so packed it was with prejudice against workers - and it was the final thing, of many, which tipped me into leaving and joining the Greens.

The text is below: so, don't let anyone fool you - the legislative drive to weaken our employment security in the middle of a recession is very much the offspring of both parts of this most poisonous regime, which seems to view its own citizens as its enemy.

(bold italics are my emphases)

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Sent: 13 May 2005 14:54
To: chrisdaviesmep@cix.co.uk
Subject: Working time regulations

Dear Chris Davies,

I have been a member of the Liberal Democrats and our predecessor parties for 27 years and am writing to you after reading about our MEP's vote against the proposed changes to the EU working time regulations this week, including your own criticisms on your website about the vote to end the 48 hours maximum average working week opt-out.

I am surprised and disappointed by the Lib Dem MEPs approach to the proposed changes. I am also quite baffled by your comments that most people work a 37 hour week in the UK, but as a point of principle, people should be able to choose to work longer.

The fact is that most recent surveys indicate the averge working week in Britain is actually around 42 hours and, as I am sure you must be aware of, a "long hours culture" exists in many industries, especially among lower paid workers. While, since slavery is illegal, as a legal technicality they may "choose" to work longer than their contracted hours, the fact is that very often they have no realistic choice if they wish to avoid punitive action against them by their employer. A recent TUC survey found that less than 1-in-3 people who regularly work more than 48 hours per week have ever been asked to sign the legally required opt-out and there have been instances of people being told they had to sign the opt-out a a condition of their employment. To suggest therefore that "choice" enters into the equation for the vast majority of people who are expected to work long hours is quite frankly misguided.

The regulations as proposed would average the working week over an entire year - it is not as if people could never work more than 48 hours in any one week, or even for quite prolonged periods. It simply requires that over a full year, people do not work more than this on average. I don't know about you, but if I had a relative requiring care, or was myself being driven on a bus or train, I would feel very concerned if the person administering drugs or driving the bus/train had really been working more than 48 hours that week and had been doing so routinely. In addition, regular long hours of work make the worker more prone to both short-term illnesses such as flu or colds from a reduced immune system and longer terms diseases such as diabetes and heart condtions, which can be of little good to the worker, or, for that matter, their employer in the long run.

I am quite astonished that Lib Dems are taking such a stance - where is the care about people that we have campaigned on for years (remember "People First"?)? Liberals were among the first, decades ago, to introduce health and safety requirements to the workplace, tackling both moral and productivity issues at the same time. I regret deeply that this no longer seems to be the case - as additionally evidenced last autumn when the federal conference voted against holding mulitinationals to ILO standards in the employment of some of the most vulnerable people on this planet.

You may argue that you agree with all that I have said, but that the core of your argument is about subsidiarity. However, given that Britain is widely seen as a low wage, low regulated economy, is it little surprise that other EU states might want our opt-out to be ended given the unfair competitive advantage this gives to our corporate shareholders over those in other countries in what is meant to be a single market? What happened to our long trumpeted call on the Major Government to sign up to the Social Chapter with all the labour protection that envisaged? Was it our policy to sign up as long as we could opt out? I don't remember it being so and I fail to see what has changed.

I implore you and the other MEPs to revise your view on this and similar employment protection measures. Seeking to protect our people from the demands of employers who in most cases have as their sole objective profit maximisation is well within the long traditions of both liberalism and social democracy. It is also one, given that most people are employees, which would not be electorally damaging as long as you do not portray this as something which limits people's ability to act for themselves, which in all truth it is not.

I must stress I write as  a Personnel & Training Manager who has worked in the residential care industry for 15 years now. I do not find complying with these regulations, including the end of the opt-out, as a difficulty and any company that did struggle with them would quite frankly be one which was not functioning effectively at all.

I hope to hear from you.

Friday, 20 May 2005, 10:53

Chris Davies MEP  wrote:

As am MP in 1996 I introduced a Bill in to the House of Commons calling for greater employee protection within the UK.

My reason for supporting the British opt-out of the EU Working Time Directive is entirely on subsidiarity grounds.

If people want strict controls over working hours at the risk of loss of competivity then they should vote for Government to introduce it. I do not believe that measures of this kind should be set as EU standard.

It would be hard to find a more pro-European politician than myself, but if Liberal Democrats do not respect our own belief that decisions should always be taken at the lowest practicable level then we will have no hope in convincing others of the merits of the European case.

The Working Time Directive was introduced using the Health and Safety legal basis. We have supported its application where this is relevant (lorry drivers, doctors etc) but it's application in other instances is I believe illegitimate.

Yours Sincerely

Chris Davies MEP.