Our employment law-making process is not working: too much recent employment law is either badly conceived or poorly executed, and often both. It is failing us all as citizens, employers and employees alike.
The evidence is plain for all to see. There has been a seemingly endless procession of cases on appeal on staff transfers, disability legislation, holiday pay under the Working Time Regulations, the change to the territorial scope provision regarding unfair dismissal and other basic employment rights, and above all, the complete fiasco that is the statutory discipline and grievance procedures, which were introduced in 2004.
The Employment Appeal Tribunal is heroically striving to put right the all too manifest failings in its conception and execution, which many legal commentators warned about at the time. And that is before the inevitable stream of cases on the problems with the religious and age discrimination law.
11th hour deficiencies
The Department for Work and Pensions has embarrassingly had to halt the pension dimension of the age discrimination law while it rushes through last-minute changes intended to plug some of the more obvious deficiencies that it realised at the 11th hour were such a serious problem they could not be ignored.
Our poorly executed age discrimination legislation is going to fill the appeal courts for years to come.
But all of these new laws have been the subject of extensive consultation with stakeholders, we are told. So is consultation part of the problem? I think it is.
It seems it is becoming a substitute for clear thinking about concept and delivery in government, because if the CBI and the TUC agree on something, it must be right, mustn’t it? Even though it is a fudge, the fudge gets perpetuated in law, with the inevitable problems that ensue.
There must be more scrutiny by Members of Parliament. Shamefully, fewer and fewer of them seem to have ever had a real job, so there is not much practical common sense to be found there.
Nor is there so much diligence over drafting as there used to be, and question marks have to be raised over the diligence and skill of not just our parliamentarians, but also of the Civil Service, which prepares them.
They may well both have a case in their defence to say there is too much law and too few of them to get it right, but that is not to excuse the systemic failure that currently exists.
And then there is Europe source of so much of our recent employment law. It does make laws badly.
There is a lack of consistency across directives – information and consultation of employee representatives is a common theme in employment directives, but nearly every one has a different version.
Then there are the differences between the official texts in the various official languages of the EU.
Last, there is the disaster area of sub-contracting legislation to the so-called social partners. The results so far on part-time work and telework show just how unfit these parties and process are for law-making.
We must take our share of the blame as we have our share of the decision-making process through our MPs, civil servants and members in the European Parliament.
And we are increasingly craven in our approach to implementation of directives, copying out the Eurospeak rather than translating it into practical English concepts.
So what is my proposed solution? Hard work and more restraint. More hard work in getting the concepts and execution right. More restraint from pressure groups with their special pleading for quick legislative fixes using their own drafting. Good legislative drafting skills are rare outside the parliamentary draftsmen’s office, and they do generally know best.
As ever, if something is worth doing, it is worth doing well. That does not necessarily mean taking longer, but it does mean being smarter, and it could mean committing less resource to consultation.
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