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Fewer rights for working people? What the Tory majority could mean for employment law

Annie Powell considers what effect the new Government may have on worker's rights following the May 2015 election

Posted on 18 May 2015

In coalition many people argued that the Conservative party weakened protection against unfair treatment in the workplace by doubling the period in which employers are allowed to dismiss their staff unfairly and by introducing employment tribunal fees which severely curtailed workers’ ability to enforce their existing rights.
Now that the Conservatives are unhindered by Lib Dem coalition partners, what can we expect in terms of employment law changes?

Right to strike

In the forthcoming Queen’s speech, we are told, will be proposals further limiting the right to strike of those working in “essential public services”, specifically health, education, fire and transport.

According to reports Strike action by these public sector workers may be unlawful unless at least 40 per cent of all those entitled to take part in the strike ballot support the proposed industrial action, as well as a majority of those who do vote.

It is worth pointing out that only 37 per cent voted Conservative on 7 May 2015. It is not clear why the Conservatives think that governing the country requires a lesser mandate than a union calling a strike. 

Disabled people and Access to Work

The Tory manifesto contains the following laudable statement: “Last year alone, 140,000 disabled people found work. But the jobless rate for this group remains too high and, as part of our objective to achieve full employment, we will aim to halve the disability employment gap: we will transform policy, practice and public attitudes, so that hundreds of thousands more disabled people who can and want to be in work find employment.”

But the manifesto contained no concrete proposals as to how this might be achieved. One proposal that has been reported, however, is a plan to cap the amount of support that any one person can receive from the Access to Work fund. Access to Work provides support to disabled people in the work place, in many cases making work possible.  

A cap will prevent some disabled people from receiving that vital support.  

Zero-hour contracts

In their manifesto the Conservatives promised to “take further steps to eradicate abuses of workers, such as …exclusivity in zero-hours contracts.”

Enforcement of a ban on exclusivity causes does merit attention but exclusivity clauses are far from the worst aspect of contracts that offer no minimum amount of work each week.

The Conservatives have expressed no intention to address, for example, the lack of security of workers on zero hour contracts who can’t be certain that they’ll have any work in the upcoming week or month (even when their employer’s business has a steady and predictable need for staff and could easily provide such security), or the practice by some employers of punishing zero hours workers for being unable to meet a demand to work a certain shift by offering them less work in the future.

Volunteering leave

Before the election the Conservatives pledged to introduce paid volunteering leave. If this promise is kept, an employee working full time for an employer with over 250 staff will be entitled to three days’ paid volunteering leave, with the cost to be borne by their employer. It will be interesting to see if and when this is actually implemented.

Effect of leaving the EU

A significant number of rights currently enjoyed by British workers were acquired or reinforced by EU law. If the promised referendum on Europe results in a British exit from the EU, a host of employment rights will no longer be underpinned by European legislation; these include the right to equal pay, protection from discrimination in the workplace, family friendly rights such as the right to request flexible working and protection for agency and part-time workers. 
David Cameron has openly condemned the European legislation which ensures that agency workers who have been employed for 12 weeks or more in their role have the same rights as their colleagues who were hired directly.
The Prime Minister has also referred to the Working Time Directive as an example of EU law that he thinks should not be applicable in the UK.   The Working Time Directive guarantees rest breaks and paid holiday and limits working hours to 48 hours a week, amongst other protections.
If the UK were to leave the EU it seems likely that our laws protecting agency workers and enshrining working time rights would be at risk by the Tory administration.
Equality laws

It is also unclear how safe workplace equality laws would be without overriding European legislation. We have just seen Dominic Raab appointed as Justice Minister, the Tory MP who in 2011 wrote that “we need to ditch Labour’s equality and diversity agenda” and  that “while we have some of the toughest anti-discrimination laws in the world, we are blind to some of the most flagrant discrimination – against men.”
What next for workplace justice?

The evidence is clear that tribunal fees have prevented employees who have been treated unlawfully at work from being able to access justice. Since the introduction of £1,200 fees for an unfair dismissal or discrimination claim and £390 fees for claims such as unlawful deductions from wages, there has been a 66 per cent decrease in the overall number of claims.
Not even the Conservatives can argue that this drastic fall is attributable to the weeding out of weak claims as the percentage of successful claims at tribunal has actually reduced since fees were introduced. But the government still sees tribunal fees as a success story, stating in their manifesto “we have already helped small businesses by … reducing the burden of employment law through our successful tribunal reforms …”
So are fees here to stay for the foreseeable future? One glimmer of hope is provided by Unison’s judicial review of the tribunal fee system. Unison is arguing that the fees contravene the European principle of effectiveness because they make workplace justice prohibitively expensive for many and that they also indirectly discriminate against women, ethnic minorities and disabled people because these groups are more likely to suffer discrimination at work.