Government’s mish-mash review of employment law is creating fear

The adage that “too many cooks spoil the broth” is never more accurate than when applied to employment law. Joanne Owers, chair of the Employment Lawyers Association, believes that the kind of proposals leaked from Adrian Beecroft’s report this week are precisely what has led to arcane and complex legislation.

Even before Adrian Beecroft’s report was leaked this week, there were already three overlapping employment-law-related government consultations in train. At least four government departments, each with its own agenda, have an interest, and a hand, in shaping employment law. Now the spectre of abolishing the right not to be unfairly dismissed (which has been in existence since 1971) and effectively replacing it with “compensated no-fault dismissal” is apparently on the table.

However, with press reports already indicating the flaws in that proposal, which reveal an overestimation of the complexity of a fair employee-exit process under the current regime, along with an apparent lack of support from key players in the coalition, it is difficult to see the findings of the Beecroft report ever being implemented.

Joanne Owers

Joanne Owers, chair of the Employment Lawyers Association.

Were the proposals outlined in the leaked report to be adopted, it would arguably lead to a two-tier system of protection in the workplace; ie legal safeguards will apply to employees only with regards to a protected characteristic under the Equality Act.

Is it any wonder that employees and employers are uneasy and have come to regard employment law as complex and, in certain cases, burdensome?

Members of the Employment Lawyers Association (ELA) are united in wishing that this (and other) Government(s) would resist the temptation for quick fixes and headlines where employment law is concerned. It is that approach that has led to existing arcane and complex regulation.

There is a view that employment law alone is standing in the way of economic recovery and Britain’s global competitiveness. Many ELA members believe this to be misguided and wrong. In their view, employers will recruit according to the operational needs of their business; tweaking employment law will not influence those decisions.

It is time for responsibility for employment law to be centralised in one government department, not split across Whitehall as it is now. The Department for Work and pensions, the Department for Business, Innovation and Skills, the Ministry of Justice and the Home Office all have responsibility for areas of employment law and practice.

In terms of employment law, it is not the basic law that is the problem but the fact that in their eagerness to be seen to act to help business or employees, successive Governments have conducted “policy legislation by Elastoplast”, creating a bewildering mish-mash of regulation. Government needs to take a long, hard look at its own practices before it tinkers further with employment law.

What would make a significant difference in the longer term would be for government to adopt a culture of careful initial drafting and systematic rationalisation rather than piling regulation upon regulation; a single-department overview and the production of well-drafted business- and consumer-friendly guidance. In that way, they would win plaudits all round.

If there is a “fear factor” it is more likely to stem from frequently changing legislation that is rushed through, giving employers little time to digest what must be done. Keep things simple, only make changes that are really necessary, and ensure that those changes do not conflict with obligations arising under EU law.

Joanne Owers is chair of the Employment Lawyers Association, an organisation with a membership of more than 6,000 lawyers specialising in employment law, whether advising employers or employees.

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