The HR community needs to put pressure on the Government to become a much
more effective legislator, otherwise there will be a risk of widespread
non-compliance from employers in the future
It is understood that the Department of Trade and Industry has recently
asked the CBI and TUC to discuss how the EU directive on information and
consultation should be implemented in the UK. This process of involving the
‘social partners’ in drafting employment law is driven by the need for the
Government to reach political solutions to implementing legislation. It was, of
course, always thus. However, as the number of European-led changes to
employment law has grown, this apparent failure to prioritise practical and
workable legislation above the politically expedient has become of increasing
concern to organisations and HR professionals left to grapple with the final
regulations.
Employers need to be encouraged and supported in the pursuit of good people
management and development by a sensible legal framework that balances their
rights and responsibilities with those of their employees. Such a framework
cannot be shaped by partisan but loud voices; it requires the views of all
stakeholders to be taken into account. It also demands that the detail of
legislation – which can cost employers, employees and the taxpayer dearly in
employment tribunal cases – be ironed out.
As European directives are implemented through regulations, which can only
be accepted or rejected by Parliament, EU-driven legislation is not scrutinised
in the House of Commons or the Lords. This means the Government needs to be
particularly scrupulous in drafting legislation to implement directives. It is
likely that this process would benefit from a great deal of scenario planning,
giving a much more detailed consideration to the consequences of legislation
than a typical consultation exercise allow.
A process of this kind is likely to be considerably more useful than the
regulatory impact assessments (RIA) that are now required to accompany all
proposals for new law. These assessments focus on the financial costs of
regulation, with the resulting sums of little or no use to employers covered by
the proposals.
The administration costs of implementing the Fixed Term Employees
Regulations 2002 would be approximately £2m, stated the RIA in the consultation
document on this issue. This was based on an estimate of 20,000 affected
employers paying for two days’ work by a personnel clerk – paid an average of
£250 a week – to adjust the payroll system. I suspect there are few HR
practitioners, who, on hearing about the new law, threw a copy of the
regulations on the desk of the personnel clerk and told them to change payroll
accordingly.
As the UK is obliged to implement European directives, RIAs presumably have
little effect on the policy-makers’ decisions, particularly if the Government
follows its stated aim of not ‘goldplating’ directives. Where regulation
stemming from Europe is concerned, government departments’ time might be better
spent looking at the real effects of law in the workplace, rather than making
guesstimates of the financial costs.
Spurred on by the Better Regulation Task Force, the DTI has started to take
more seriously the difficulty faced by employers in implementing new employment
law.
It is helpful that two set dates each year will be introduced for new
regulation, but this is a very small starting point. But it is more important
that the Government focuses on a coherent approach to ensure that any side
effects of new regulation are not more problematic than the issue the
regulation is designed to address.
There is also a need for more timely guidance for employers on what
directives might mean. There is little excuse for Government departments that
copy out European legislation into domestic law, and then leave employment
tribunals to interpret the law, at the expense of employers and employees.
For our part, the HR community must continue to put pressure on government
departments to develop legislation that makes sense for businesses and the
employment relationship. Otherwise, we risk more employers giving up the fight
altogether, and a resulting move to a non-compliance culture.
By Diane Sinclair, CIPD lead advisor on public policy
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