The
Government is inviting comments on its intention to give employment rights to
workers as well as employees. What might this mean for HR?
Background
The
current state of play in relation to employment protection can be confusing.
Certain people who satisfy the definition of ’employee’ are given wide-ranging
employment protection, including the right not to be unfairly dismissed, the
right to minimum periods of notice of termination, the right to receive a
statutory redundancy payment, the right not to be discriminated against on the
grounds of race, sex or disability etc.
However,
there are groups who are not self employed, but who do not satisfy the
definition of ’employee’ – such as home workers, agency workers, casual workers
and office holders. As a result, they are not covered by the protection given
to employees.
On
the other hand, other employment rights, including the right to receive the
national minimum wage and rights under the Working Time Regulations (including
the right to paid holidays) are available to ‘workers’, including agency and
casual workers. The Government believes this system has resulted in the present
coverage of statutory employment rights being uneven and confusing for those
trying to determine their statutory rights.
The
rumour mill
Prior
to the publication of the Government’s Discussion Document on Employment Status
in Relation to Statutory Employment Rights (DTI, July 2002, URN 02/1058), it
was rumoured that the Government was about to effect significant changes in the
area of employment law. Advance word on the content of the document suggested
the following changes:
–
an extension of the category of persons protected by unfair dismissal
legislation to include ‘workers’ and an extension of the rights of all
employees
–
removal of the one-year qualifying service requirement for unfair dismissal
protection
–
making the remedy of reinstatement mandatory in some cases
–
a major increase in the maximum compensatory award, which currently stands at
£52,600
Was
the speculation correct?
In
a word, no. The discussion document specifically states that its purpose is to
consider the coverage of existing rights and not whether new rights should be
introduced or whether current rights should be repealed. The document also
states that it will not seek to re-examine the length of qualifying periods for
certain rights, including the one year required for unfair dismissal and the
two years required for the right to receive a statutory redundancy payment. The
document makes no reference whatsoever to the current cap on the compensatory
award.
Main
provisions of the document
The
Government states that the framework of statutory employment rights should
deliver minimum standards of employment protection in respect of all forms of
employment but, at the same time, it should strike the right balance between
flexibility and worker protection.
Section
23 of the Employment Rights Act 1996 allows the Government to extend the
coverage of many statutory employment rights by secondary legislation. Section
23 covers rights conferred on individuals by the Employment Rights Act 1996
(including unfair dismissal, the right to maternity and parental leave, time
off for dependants, the right to receive written particulars of employment
etc), the Employment Act 2002 (when it comes into force) and the Trade Union
and Labour Relations (Consolidation) Act 1992.
It
does not, however, apply to the protection given by the Sex Discrimination Act
1975, the Race Relations Act 1976 or the Disability Discrimination Act 1995.
Therefore, the document is not concerned with the extension of
anti-discrimination legislation.
The
Government outlines the groups of workers who may benefit from an extension of
employment rights (home workers, agency workers, casual workers, labour-only subcontractors,
office holders and the clergy) and highlights the advantages and disadvantages
to such an extension. The Government then specifies four options and seeks
consultation on these options from the public. The four options are:
–
maintain the status quo and consider the scope of new rights on a case-by-case
basis
–
extend the scope of some existing employment rights on a case-by-case basis, to
some or all of the groups described in the document, keeping coverage under
review
–
extend the coverage of all existing statutory employment rights across the
board to the same group of working people abandoning the current ‘targeted’
approach to coverage, with the aim of simplifying the scope of employment law
–
conduct a broader review of employment status and definitions, looking at the
relationship between status for employment law and tax purposes
The
Government is also seeking views on matters such as whether there are any other
categories of workers who should also be included, the effect of extending
employment rights between employers and workers, and the effect on the labour
market of the extension of all or some statutory employment rights to a wider
category of the working public.
Consultation
period
Responses
on the issues raised in the Discussion Document must be submitted no later than
11 December 2002. Copies of the document can be obtained from the DTI’s website
at www.dti.gov.uk
Comment
The
result of the consultation on this document will be interesting. It is
anticipated that employers and employment agencies are likely to resist a
wholesale extension of statutory employment rights to the groups specified in
the document, whereas that will be the aim of groups representing such
categories of workers.
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It
remains to be seen what the extent of the changes to employment protection will
be. However, the influence of the EU should not be forgotten and it may well be
the case that any proposals by the Government as a result of this consultation
exercise may be overtaken by proposals from Europe – the European Commission
has brought forward a proposal for a directive on agency workers. The current
draft applies an equal treatment principle to agency workers as compared to
similar permanent workers in the user company in respect of certain "essential
employment conditions". At present, this proposal is subject to
consultation.
Pamela
Keys is a professional support lawyer in the employment unit at McGrigor Donald
Scotland, member of KLegal International. E-mail: [email protected]
