End of employment law as we know it?

A more sane approach to settling disputes is to look to the workplace for
answers, says Mike Emmott

Deregulation has been on the UK political agenda now for two decades. What
is there to show for it in relation to the employment relationship?

Most employers would say little or nothing. While both major political
parties have pledged to tackle the issue, and the present Government has
irritated the trade unions with its claims to be "business-friendly",
the last few years have seen an increase, not a reduction, in the rate at which
new employment law has reached the statute book. Is deregulation simply an
empty slogan?

Nobody is arguing against minimum legal standards for employees on issues
such as pay and safety. But employment law has gone well beyond this.

The European Commission has enthusiastically promoted legislation on issues
including part-time, fixed-term and agency work, "posted" workers and
hours.

But even the Commission may be starting to run out of steam in finding new
areas of the employment relationship to legislate about, focusing instead on
promoting flexibility, social inclusion and full employment.

There are some encouraging signs that the Government is looking for ways to
avoid imposing unnecessary further obligations on employers. Secretary of State
for Trade and Industry Patricia Hewitt has appointed a task force to recommend
ways of promoting flexible working with a "light touch". This partly
reflects the Government’s stated preference for adopting solutions that employers
and unions can both support.

But another answer is that people are beginning to question how effective
employment law has been in achieving its objectives. UK legislation has never
been noted for its clarity of purpose, preferring to require or outlaw specific
behaviour, rather than adopt broad declarations of intent.

In general, however, employment law is generally seen to operate by
protecting individual employees and/or promoting good practice by employers.

How far has the law succeeded in these two ambitions? By and large, it is
remarkable how little we know about the answer to this question.

In practice, the provision for enforcement through employment tribunals has
produced a curiously lopsided result. Three-quarters of claimants withdraw
their claim or are "bought off" by an offer of compensation from the
employer.

But what about the majority of staff who don’t bring tribunal claims or seek
advice from their union or Citizens’ Advice Bureau?

The short answer is we have little idea how far their rights are respected.
The answer may be that in many instances employers are either unaware of the
law or choose to ignore it.

Take as an example the current working time regulations. Research by the DTI
and by the CIPD confirms that they have had little impact so far on the number
of hours worked, which was clearly one of the key intentions underlying the EU
directive on which the regulations were based. Many employees have agreed to
"opt out" of their legal entitlement, others see the regulations as a
threat to their overtime earnings. Most managers who voluntarily work long
hours are probably not covered by the regulations. The net effect on workers’
health seems likely to have been insignificant.

The current enforcement machinery in the UK fails to protect individual
employees from bad managers. It is an unlikely tool for promoting "good
practice" among employers, who are forced instead into adopting a
"compliance" mentality.

Taken with the efforts to establish a non-legalistic form of individual arbitration
for unfair dismissal claims, the recent consultation paper on employment
tribunals appears to reflect a sea change in Government thinking. It looks like
an implicit acceptance that piling up new employment rights has a limited
future unless more cost-effective ways can be found to implement those rights.

One way towards a more sane system may be to accept that workplace issues
are primarily about resolving differences between employers and employees, and
rely less heavily on legal process and precedent. Other countries with a common
law background, including the US and New Zealand, have been ready to follow
this route: why not us?

Mike Emmott is the CIPD’s employee relations adviser

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