18 May 2017
By Alex Just, employment law specialist
A Conservative Prime Minister has been in Number 10 since the Coalition government formed in 2010. Although Theresa May has described her party as “the party of workers”, its track record on employment law has largely revolved around weakening protections at work. Here, we look at some of the rights workers have lost over the last seven years.
1. The right not to be unfairly dismissed after working for your employer for one year
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012, which amended the Employment Rights Act 1996, increased the qualifying period for unfair dismissal from one year to two years for those employed after 5th April 2012. This change was supposed to encourage small businesses to recruit more staff by reducing hiring costs, but in fact businesses pocketed a trifling extra £4.7 million in the first year.
2. The right for your employment tribunal claim to be heard by a ‘full panel’
The Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, overturned the presumption that Employment Tribunal proceedings should be heard by a legally qualified Chair supported by two lay members – representing both the trade union movement and business community. Now, employment judges are given the discretion to pick and choose whether to hear an unfair dismissal case alone, or with a ‘full panel’. The right to have your employment dispute heard by a panel is one of the unique and crucial features of the original industrial tribunal system with “lay members” being part of what was known as the “industrial jury”. These panel members apply their “employment” expertise and real-life experiences in the work place to the interpretation and application of legal principles. They also provide a reassurance to the parties that their views are taken into account. They give the Tribunal a different look and feel to that of an ordinary Court and in many ways judge only hearings are a regressive back.
3. The right to be awarded more than one year’s pay if you are unfairly dismissed
Under the Enterprise and Regulatory Reform Act 2013, the government set a maximum award for successful unfair dismissal claims at one year’s gross pay for those earning less than £74,200 each year. This cap now allows bosses to easily calculate the cost of sacking their staff illegally and prevents an Employment Tribunal from punishing the worst-offending firms.
4. The right to bring a claim to the Employment Tribunal without paying fees
The introduction of tribunal fees under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 has priced tens of thousands of people out of justice. To bring an unfair dismissal claim you now need to pay an issuing fee of £250 and a hearing fee of £950 – at a time you are least likely to have cash to spare: When you’ve just lost your job! Anti-discrimination, equal pay rights, and a range of other individual employment rights have been effectively withdrawn from the millions of British people who cannot afford to pay £1,200 to bring a claim against their employer. Recent research by academics at Oxford University has shown that across the board the impact of Employment Tribunal Fees has led to a two-thirds reduction in most claims. Sex discrimination cases have reduced by a staggering 80% from their pre-fees level. Withheld wage claims are now uneconomic for the lower paid. If you think your employer owes you £400, the gamble of paying a £130 issuing fee, and a £250 hearing fee for a claim which might fail, and, might well not even be paid if it is successful (a 2013 government report found that 35% of claimants had not received any of the compensation they were owed), is a risk many are not prepared to make.
5. The right to be properly consulted by your employer if they are planning to make you and at least 99 of your colleagues redundant
Under the Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013, the minimum period for consultation with workers where an employer proposes to make 100 or more employees redundant within a 90-day period was cut from 90 days to 45 days before the first dismissals could be made. Workers coming to the end of a fixed-term contract are now completely excluded from the consultation regime, so if your time with a firm is coming to an end they can now get rid of you without you being consulted at all.
6. The right to strike if you work in an ‘important public service’ and a majority of your trade union colleagues vote to take legitimate industrial action
Under the draconian Trade Union Act 2016, millions of public sector workers have had their fundamental right to take part in industrial action taken away. Under the Act, a minimum of 50% of those entitled to vote on any strike must take part in the ballot, and in ‘important public services’ at least 40% of those entitled to vote must vote in support of the action.
This means that if you work in an ‘important public service’ such as a state school, fire station, A&E hospital or drive a London bus; and half of your trade union colleagues respond to a postal ballot, then it will require an 80% vote in favour to allow for legal industrial action to go ahead. If 79% of your colleagues vote in favour of striking, and the action goes ahead, then the employer will be almost certain to be granted an injunction to stop the action. If less than half respond then, even if 100% vote in favour, any industrial action will be similarly vulnerable. These ballot thresholds are undemocratic and breach the law: it is against international standards to effectively count abstentions as ‘no’ votes.
Moreover, the 40% threshold is discriminatory: 73% of those likely to be in these ‘important public services’ will be women and the Act’s definition of what counts as an essential service is out of keeping with international legal norms. The International Labour Organisation defines “essential services” as services where “the interruption of which would endanger the life, personal safety or health of the whole or part of the population”. It is hard to see how the Central Line not running, or a child missing one day of schooling, would “endanger life, personal safety or health of the whole or part of the population”.
7. The right for public sector employees to ask for their trade union subs to be paid through their pay check without their union being charged a fee by the government
Provisions in the Trade Union Act 2016 were initially going to ban the process of ‘check off’, where trade union subscriptions are deducted by the employer on pay day. This was a blatant attempt by the Tories to deprive public sector unions of funds. The Government’s own assessment of the policy suggested unions would be hit by £11 million in one-off transition costs and they would end up having to pay at least £5 million a year in banking fees. Scaled back after Parliamentary opposition, the Act now requires that unions pay a ‘reasonable sum’ for the service, and that every public-sector trade union member is given the option of paying union subs by an alternative means.
Alex Just was a trade union barrister and former member of Old Square Chambers. He now works in strategic litigation communication and is a GMB member.