UK Government Outlines Intentions To Make Unfair Mass Dismissal Easier

by richardhutton

Largely ignored, but on 7th March 2013, Employment Relations Minister Jo Swinson outlined her intentions to make it far easier for employers to dismiss employees unfairly, while equally making it much more difficult for unfairly dismissed people to gain tribunals or compensation:

“The government is taking a number of steps to improve existing employment law.

These include:-

Reducing the unfair dismissal qualification period for the right to claim unfair dismissal extended from one to two years;
•the introduction of a 12 month pay cap on the compensatory award for unfair dismissal;
•making Acas Early Conciliation (EC) a key part of the conciliation process meaning that all claims relating to alleged infringements of individual employment rights would go to Acas rather than the tribunal service; and
•taking steps to reform TUPE and the government is currently consulting on proposals to reduce burden whilst still protecting fairness to employees.”

The meaning of this is not overt. It needs to be read in light of the following:

“The UK has one of the most lightly regulated and flexible employment systems in the world. What this study shows is that we need to work with employers to help them better understand their rights and responsibilities leaving them free to focus on growing their business.”

Through the government’s Employment Law Review we are reviewing existing legislation with the aim of providing clarity and certainty for business to give them the confidence to manage their workforce effectively.

In slightly more honest terms, UK employment rights are weak. The government is seeking to raise awareness of this fact among employers, so that they can fire people – with confidence that the people in question will have little legal recourse for redress if their rights have been infringed. For example, if a woman is fired because she becomes pregnant; or if a man is dismissed because it becomes known that he is homosexual. That’s as it stands – as Swinson states, it’s going to become easier still.

The reference to “taking steps to reform TUPE” is buried in a footnote. What this means is that when a business changes hands people “automatically become employees of the new employer on the same terms and conditions“. The government intend to ‘reform’ this, while simultaneously making it more difficult for people to claim unfair dismissal. A pretty significant prospect for public sector workers set to have their jobs outsourced to private contracters.

As a sign of how ill-thought this really is, it’s worth contrasting the vaunted aim of creating a “workforce that is the most flexible in Europe”, with the government’s own guidelines on unfair dismissal:

Situations when your dismissal is likely to be unfair include if you:  asked for flexible working

Its other examples of reasons for unfair dismissal are:

  • refused to give up your working time rights – eg to take rest breaks
  • resigned and gave the correct notice period
  • joined a trade union
  • took part in legal industrial action that lasted 12 weeks or less
  • needed time off for jury service
  • applied for maternity, paternity and adoption leave
  • were on any maternity, paternity and adoption leave you’re entitled to
  • tried to enforce your right to receive Working Tax Credits
  • exposed wrongdoing in the workplace (whistleblowing)
  • were forced to retire (known as ‘compulsory retirement’)

It’s not stated at all openly, but the repeat references to weaker employment laws encouraging “employers to take on more staff” can only really mean replacing unfairly dismissed employees without having to await the outcome of tribunals. There is nothing else which obviously lacks facilitation under existing employment laws. Certainly nothing outlined by the government.

This legislation is partly based on the ‘Enterprise and Regulatory Reform Bill’ of October 2012, which – amongst other proposals – mandates that complaints against discrimination will be left at the discretion of the person accused of being discriminatory:

“Procedures for gathering discrimination information

This is a statutory procedure which enables anyone who thinks they have been discriminated against to seek information from the person they think has acted unlawfully against them…we intend to repeal the provision, leaving businesses free to decide how and whether they respond to enquiries of this sort”

And repealed “the right of civil action against employers for breach of statutory duty in relation to health and safety at work regulations”.

This follows on from the December 2012 announcement that redundancy notice would be reduced from 90 days to 45: this is the period in which alternatives to redundancy are discussed. Swinson described the prospective consequences of the reform in the same mealy-mouthed fashion as above:

“Our reforms will strike an appropriate balance between making sure employees are engaged in decisions about their future and allowing employers greater certainty and flexibility to take necessary steps to restructure.”

This is the same idiom government ministers use when describing people out of work as ‘stock’. The government’s own estimate is that this will see employers gain £290 million in ‘wage reduction’:

“reduction in wage costs by allowing large scale redundancies to take place more quickly. We currently estimate this to be in the region of £290m per annum”

By contrast, c. £250 million in “wages that would have been received during the longer collective consultation period” will be lost to employees.

This is about weakening the rights and protections of people in work, so that their employers can discriminate against them more easily, and dismiss them without checks and balances being an obstacle. It’s worth considering the fact that with 3.3 million people unemployed, advertised jobs attracting an average of 20-50 applicants, and a major decrease of salaries and working hours for people in work, there is a massive swathe of low paid, easily replaced workers, with few legal safeguards protecting them from exploitative working practices – these are set to be weakened further still.  As it stands, employers are increasingly at liberty to treat people as they wish.