Two cheers for the Employment Simplification Bill published last week.
The Bill claims it will save business millions by sweeping away unwanted employment laws. First for the chop are the statutory dismissal and grievance procedures, and barely anyone will mourn their demise.
Given that the CBI and the TUC, who are not usually like-minded, were agreed that those procedures weren’t working, their repeal was predictable. For all except maybe those who make a living advising on the procedures, their end probably cannot come soon enough.
But therein lies the first problem. We are probably stuck with those procedures until at least 2009, while the government works out what to put in their place.
More pain to endure
As anyone who has had to deal with them can testify, they are bureaucratic, onerous and almost impossible to follow in places. What was intended to spare parties the legal costs of a tribunal process instead just ‘front loaded’ those costs, since advisers had to be called in earlier to help their clients through the complexities. We therefore have at least a further two years of pain to endure.
To be fair to the government, most people supported the objective that underpinned the procedures – to seek to resolve disputes within the workplace rather than incur the cost of employment tribunal hearings. But the government’s complicated approach was disastrous. (The writing was probably on the wall when the DTI’s short factsheet summarising the procedures for employers, headed “It’s as easy as 1, 2, 3”, was found to contain at least three errors.)
However, the failure of the procedures highlights two problems any government will face in seeking to simplify UK employment law and reduce the volume of litigation.
First, there is a fundamental tension between, on the one hand, granting employees extensive new legal rights and, on the other, seeking to reduce the number of claims in the employment tribunal. Second, whether we like it or not, law is complicated. Often it cannot be made easy without causing injustice.
Looking at the first problem, it is hard to see what exactly the government can dispense with to lighten the regulatory load on business.
EU directives
Much of the UK’s most complicated employment legislation emanates from European directives – for instance, the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) implement the European Union Acquired Rights Directive. Without withdrawing from the EU – and even the Conservatives do not propose that – the UK cannot repeal such legislation.
Furthermore, some of the laws that trouble employers are seen by many as the flagship achievements of New Labour – the National Minimum Wage Act and the Human Rights Act, for example. If such measures were to be revoked, voters might be entitled to ask what exactly the last 10 years were for.
If such measures are to remain in place, it has to be accepted that some tribunal claims will be the result, since some employees will, rightly or wrongly, believe their rights to have been infringed or (whisper it) launch nuisance claims in the hope of a financial settlement.
With regard to the second problem, is it not better just to admit that employment law is inherently complicated? If anyone can explain the Disability Discrimination Act to me in a short space of time, I take my hat off to them.
But the complexity of employment law is not the disaster that the ‘it’s political correctness gone mad’ brigade would have you believe. The UK remains a growing economy with comparatively low levels of unemployment. As a last resort, businesses and trade unions can put aside budgets for HR professionals and/or employment lawyers if they need them.
If anyone believes that society would be better off without such regulation and cost, I would invite them to sample the stresses of the deregulated working environment in the US.
In the field of employment law, simplicity is easy to promise but hard to deliver.
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