Legal Opinion: Have you had your say on the Red Tape Challenge?

This article is in association with Rosenblatt law firm

On 7 April 2011, the Prime Minister issued a letter to government ministers in which he highlighted a need to tackle onerous and burdensome business regulation, as part of an effort to liberate and encourage businesses to compete, create jobs, and provide individuals with freedom and responsibility.

While Mr Cameron acknowledged the need to maintain sensible and proportionate regulation, he complained of “too much costly, pointless, and illiberal government red tape”. He cited examples such as regulations dealing with ice-cream-van jingles to the display of bed prices. Consequently, he announced the formal launch of the “Red Tape Challenge”, a process designed to reduce the number of existing statutory rules and regulations from the current estimated UK total of 21,000.

Consultation

As part of the Red Tape Challenge, the Government has set up a consultation website where the public and those affected can register their comments about UK regulations in specific industries. In addition, the website invites comments on regulations that apply across all sectors, which have been grouped into six general themes: company law, health and safety, environmental legislation, pensions, equalities and employment.

According to the website, it is for the public and affected persons to say “which regulations are working and which are not; what should be scrapped and what should be simplified”. Following this, ministers have three months to decide the fate of the earmarked legislation and if appropriate, to repeal it “as quickly as possible”.

Of obvious interest to employers, HR professionals and employees is the possible repeal of regulations categorised under pensions, equalities and employment law. The repeal of such legislation would be highly controversial.

For example, under the equalities theme, the Red Tape Challenge website cites the entire Equality Act 2010; a piece of very recent legislation which only received Royal Assent on 8 April 2010 and which was designed to replace, consolidate and build upon a raft of pre-existing anti-discrimination and equality legislation contained in numerous other enactments. This is perhaps surprising and a worry to a broad section of society, including employees. Indeed, the overwhelming majority who have commented on the website so far appear to support the Equality Act 2010 and express concern at the notion that it should be repealed.

Under the employment law section of the website, there are 151 pieces of legislation including the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), the Working Time Regulations 1998 and the Maternity and Parental Leave etc Regulations 1999. The idea that such pieces of legislation could be repealed is also alarming to many. Further, this alarm can only be exacerbated by the coalition Government’s suggestion that, whereas under previous Governments it was assumed that regulation should stay, the default position now is that burdensome regulations will be scrapped, unless there is strong reasoning for survival.

The future for employee rights

So, does the Government’s bold regulation rhetoric really sound the death knell for employee rights? Is it likely to alter drastically the working practices of HR or employment law professionals? Despite voiced concern, there is significant room to doubt drastic change on either front. While it is conceivable that specific provisions within certain employment regulations may be “thrown on the scrap heap” or else clarified, drastic watering down of employment practices could only be brought about by scrapping, in their entirety, pieces of legislation such as the Equality Act 2010 and TUPE. This would not be likely, given the UK’s requirement to comply with and implement EU legislation. There is also cause to question the value of the consultation element of the Red Tape Challenge and the extent to which the Government will heed public opinion. Many people have not even heard of it and it is certainly not being pushed into the public eye. For the consultation to be at all worthwhile it must receive far greater exposure than it has to date.

So, have you had your say on the Red Tape Challenge yet?

Philip Minnis, solicitor, Rosenblatt Solicitors








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