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Theresa May's employment law proposals - A new and Tory socialism?

18 May 2017

The Conservatives are promising the greatest extension of workers' rights by any Conservative government in history and, apart from Edward Heath introducing the right not to be unfairly dismissed, they are absolutely right.

Oh, and Margaret Thatcher preventing any unauthorised deductions from employees' wages, and John Major introducing protection for disabled employees and removing the cap on compensation for discrimination. So, apart from three out of the last four Conservative governments since the war, they are absolutely right. And Winston Churchill introducing Wage Councils, Disraeli legalising picketing and Robert Peel bringing in the Factories Acts.

OK so they're wrong then. This is either dyed-blue drivel or forgivable pre-election hyperbole; probably both. What of the proposals themselves? Here they are:

  • Protection for all workers' rights currently guaranteed by EU law. The Conservatives will guarantee all rights that workers currently enjoy as we leave the European Union. I'll come back to this one.
  • A commitment to increase the national living wage in line with median earnings until the end of the next parliament in 2022.
  • New protections for 'gig' economy workers, following the Matthew Taylor review that Theresa May established in one of her first moves after becoming prime minister
  • Representation for workers on company boards, under the Conservatives' wider reforms to corporate governance.
  • A new statutory right to receive information about key decisions affecting your company's future, subject to reasonable safeguards, and in keeping with but not exceeding the rights of shareholders.
  • A new statutory right to request leave for training purposes, to help workers gain the skills they need to retain good, well-paid jobs.
  • A new statutory right to leave to care for a family member, in line with other countries.
  • New rules to protect workers' pensions from irresponsible behaviour by company bosses, like unsustainable dividends and takeovers that put the future of the pension scheme at risk.
  • Reforms to the Equalities Act to extend protections from discrimination to those suffering fluctuating or intermittent mental health conditions.
  • A statutory right to child bereavement leave, for those who suffer the tragedy of losing a child.
  • The introduction of new returnships for people returning to the labour market from a period of absence, including from parenthood and elderly care

Some of this is obvious and welcome, such as the commitment on the National Living Wage. Others are intriguing, such as the promise to legislate to implement the Taylor Review. And, on the face of it, the boardroom should be concerned about the corporate governance and pension suggestions: these are not so much tweaks to employment law as tinkering with the DNA of capitalism itself.

Which may be why, to this regrettably cynical eye, they are unlikely to amount to much in practice. They are too stained by the rest of the blue dye for us to take them seriously.

One need look no further than some of the proposals themselves. Take the first, the promise that the Conservatives will "guarantee all rights that workers currently enjoy as we leave the EU". Which is fine until you understand that EU law is what the Court of Justice of the European Union (CJEU) says it is and Mrs May has said we are not going to be bound by the Court. So, English Judges in English Courts will decide what EU law means in England and if the CJEU decides that it means something different, then Mrs May will have to decide which promise she breaks: do our judges proudly and stubbornly ignore their EU brethren or do we let workers' rights slide? Actually that's an easy circle to square: English Judges will copy CJEU decisions whilst claiming loudly that they are not and that they have come to this conclusion completely on their own, even if it was opposite to the one which they had held only a few months before. As this is the sort of tawdry, rank hypocrisy on which the whole of Brexit is based, absolutely no one should have any problem with this.

There is more in this vein. For example, there is an existing right to request time-off for training but it only applies in companies with 250 or more employees: it was this government which prevented its extension to all employers. And what reforms are necessary to the Equalities Act to deal with intermittent mental-health conditions, unless the requirement that the impairment has a substantial and long-term adverse effect on the individual's ability to carry out "normal day-to-day activities" is going to be dropped? They surely don't mean that.

If I think I'm being too harsh, too unfair, then, along with every other practicing employment lawyer, I remember one thing: fees. The Conservatives are the party (and to be fair the Lib Dems agree with them) that require people to spend five to seven per cent of net average annual earnings before they are allowed to fight an employment claim to its conclusion. Imagine: you've just lost your job, or not been paid, and you learn it could cost you the best part of a month's income to seek redress, money you probably won't ever got back. And that's if you're on average earnings: very many people are not even close to earning that much, particularly the weakest and most vulnerable. There seems little real doubt that this explains why individual tribunal claims have dropped by nearly 70%.

In the interests of balance I should note that there is a fee-remission system, but equally in the interests of fairness, I should further note that it is of such byzantine complexity that it defeats even qualified practitioners. Employers, remember, pay nothing.

A right without remedy is worth nothing. So long as the current fees regime is in place, any promise by any party to improve workers' rights has the air of tired tinsel in the pawn-shop window: mere decoration for the desperate.

I cannot believe that this is all the PM wants. Her key adviser, Nick Timothy, whose imprint seems strong in these proposals, is a solid Erdington man who holds the great Birmingham reformer Joseph Chamberlain (no relation) as his hero. He was a politician from a different time: yes, they had spin then but they also had substance. He was serious. Mrs May is serious. I really hope the intent behind these proposals is serious, for despite my cavilling there is much to recommend in them. However, until the fee system is comprehensively reformed, even the blue-dye is a very sad and watery shade.


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