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Workers' rights - heading in the Right direction?

Employment solicitor Jasmine Patel examines the most recent proposals to be published in the Tory party manifesto

Jasmine is an employment law solicitor who tweets as @JasmineJpatel
With the snap general election fast approaching on 8 June 2017 Theresa May has promised that she will oversee the “greatest expansion in workers’ rights by any Conservative government in history” if elected back into power.

One can only hope that if she was to retain her role as prime minister she will deliver on her promises.

Among the pledges made in their manifesto, the Conservatives have vowed that if they are elected, all the rights workers currently enjoy are guaranteed as we leave the European Union. This is of course positive. Many employment law practitioners have been fearful about whether employment rights will be protected after Brexit and Theresa May’s clear statement on this point is promising.

Labour has also confirmed that they will guarantee these rights and if either party is elected and hold firm to this promise we know at least that we will not be slipping back to the Victorian era after we leave Europe.

However, we have a long way to go to measure up to some of the workers’ rights enjoyed by our European neighbours. In Germany for instance, a woman can only be dismissed during the period from the beginning of her pregnancy until four months following childbirth in very rare circumstances (known as a “Dismissal Ban”). The UK has some way to go before mothers can enjoy similar rights here.

So are the Conservatives proposing a move in the right direction when it comes to workers’ rights?

Alongside the promise to guarantee workers’ rights as they currently stand after Brexit, the Conservatives have made the following pledges:
 
  1. “To increase the National Living Wage to 60 per cent of median earnings by 2020 and then by the rate of median earnings, so that people who are on the lowest pay benefit from the same improvements in earnings as higher paid workers”
  2. To introduce new protections for ‘gig’ economy workers.
  3. To give representation to workers on company boards.
  4. To introduce a new statutory right for employees to receive information about key decisions affecting their company’s future.
  5. To introduce a new statutory right for employees to request leave for training purposes.
  6. A new statutory right to leave to care for a family member.
  7. To introduce new rules to protect workers’ pensions.
  8. To introduce reforms to the Equality Act 2010 to extend protection from discrimination to those with episodic and fluctuating mental health conditions.
  9. A statutory right to child bereavement leave, for those who have lost a child.
  10. To support those returning to the labour market after a period of absence, including those who have been caring for a child or elderly relative.

On the face of it these pledges look positive if a little haphazard. It is of course also difficult to know exactly what the Conservatives will do in practice as their proposals are quite broad-brush.

For example, with the increase of those working in the gig economy the Conservatives’ pledge to help these individuals is pertinent but at present we do not have enough information to know just how they will do so.

They are of course waiting for Matthew Taylor’s report following his review of employment practices and how they need to change to keep pace with modern business practices. Will they, following his report, propose introducing penalties on employers who are found to have wrongly classified their workers as “self-employed”?

Or will they make it easier for these individuals to challenge their status? Or both? Only time will tell.
Being given a statutory right to time off for bereavement is also a welcome proposal although if this is not accompanied with a right to pay during the entire length of this time it is questionable how many people will actually take this time off in practice.

The sentiment may be there but without proper thought on its execution I am doubtful how many people will feel they can afford to take this time off. Similarly, being given a statutory right to care for your family will only be beneficial if this is accompanied with pay protection.

Given that the Equality Act 2010 (or the Equalities Act as the Conservatives like to call it) already provides protection to workers with disabilities it is difficult to see what the Conservatives intend to extend with regards to those with “fluctuating or intermittent mental health”. That being said, in order to enjoy protection from disability discrimination, a person must first show that they are disabled in accordance with the Equality Act. Under the Act, to qualify as disabled you must show that your condition has a long-lasting (more than 12 months) and day to day impact on your life.

Unsurprisingly perhaps, it can often be an uphill struggle for workers to prove that they meet this definition.  If what the Conservatives have in mind is a proposal to enable workers to more easily argue they are disabled this would change things for the better and is perhaps part of a growing recognition in the UK that a person’s mental health is as important as their physical health and should be given the same amount of attention. Again, this remains to be seen.

Whilst these pledges certainly do not harm workers’ rights, the Conservatives have however failed to address what has undoubtedly been the biggest barrier to employees’ rights in recent years; namely the decision during Cameron’s government to introduce Tribunal fees.

If Theresa May wants to stand up for workers’ rights, she would do well to start by scrapping these fees. Indeed, reforms in other areas of employment law are meaningless if individuals are unable to afford to bring employment claims when they do have an issue.

Paying up to £1200 just to have your case heard in a tribunal is obviously prohibitive, especially to those out of work or concerned about their future employment, and there has been a not-surprising decline in the number of people bringing employment claims since the fees were introduced.

Whilst not all of the claims previously brought by individuals may have been meritorious a large number will have been and at present these people are being prevented from seeking the justice they deserve.

The fact that an employee must generally wait two years before being entitled to bring an unfair dismissal claim has also not been addressed.

Unfortunately, until someone has a problem at work, they often remain unaware of this requirement and they are then shocked to be told that they have not worked at their job long enough to enjoy what should be a basic protection, the right not to be unfairly dismissed.

I have witnessed this shock on many occasions myself and whilst a balance must of course be struck between enabling an employer to be flexible in hiring (and firing) its workforce and an employee’s right to complain when they are fired, at present the need to have two years’ qualifying service is clearly too heavily weighted in the employer’s favour.

If Theresa May wants to be remembered as the Conservative leader who did the most for workers she would do well to make these issues her top priority.

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