UK employment laws are relatively new. Unfair dismissal protection was introduced in 1971. The first discrimination law (equal pay) was enacted in 1970 but only came into force in 1975, the same year as the first maternity leave rights. Other discrimination laws followed. The national minimum wage was introduced in 1999.
As individual legal rights have, over the last half century, replaced trade unions in protecting workers (see role of the state – worker rights and politics), employment law has become increasingly complex. Nonetheless, however recent, these laws evolved for a different world from that of today - let alone tomorrow. Employment law now regulates all the drivers of change, for example: use of algorithms (see technology – artificial intelligence); age/race/sex discrimination (see demographics); worker consultation (see sustainability – social concerns); minimum wage (see role of state- state intervention); EU-derived laws (see globalisation – Brexit); visa rules (see – migration); health and safety (see Covid-19 – covid security); and flexible working (see social trends – work/life balance). Tomorrow’s world of work will be one of increased flexibility and automation, requiring a comprehensive review of employment regulation. The role of social partners in developing laws and policies (as often seen in Continental Europe) may grow depending on which political party is in power (see role of the state – politics). Proposals from the Welsh government illustrate a possible way forward.
But it is not just the employment laws which need reviewing. Enforcement mechanisms need to be overhauled (see role of the sate – worker rights). Employment tribunals (ETs - originally known as industrial tribunals) were established in 1964 to hear employer appeals against training levies. Following recommendations from the 1968 Donovan Commission, the plan was that they should become an easily accessible, informal, speedy and inexpensive forum for resolving workplace disputes. This is no longer the case. The ET system was buckling under its increased workload even before Covid-19. Cases can now take well over a year to be heard, some hearings can last week or more, and the complex ones cost tens of thousands in lawyers’ fees. In dismissal cases, the process followed is often more important than the substantive merits of the dismissal. Employment status is complex with different rights arising if the individual is classed as an employee, worker or self-employed - the distinctions are not always clear. Accordingly, access to justice can be prohibitively expensive for many. For employers, the costs can be equally high win or lose. In many cases, reputational issues weigh more heavily than the merits of the claim.
It is time to rethink and revert to a simpler, more accessible and quicker system. One possibility for dismissal cases could be a fixed indemnity which would encourage training to overcome concerns and deter arbitrary dismissal – perhaps six months’ pay after a probation period. The former Commission for Racial Equality and Equal Opportunities Commission once had important enforcement responsibilities but these were eroded over time. In the US, the EEOC performs this function and it works well. In the UK, the Information Commissioner enforces data privacy breaches and acts as an effective deterrent not to ignore data rights. The UK government’s proposals to introduce a single enforcement body to cover areas such as minimum pay, gangmasters, employment agencies, statutory sick pay and holiday pay for the vulnerable is a welcome move in this direction.
For too long, many organisations have given insufficient weight to bullying, harassment, discrimination and other forms of wrongdoing. A number of drivers are changing this, however, at least in larger organisations. These include the reputational risks as well as a shifting societal tolerance to poor behaviour. Employers will need robust procedures to support staff. Many employers are responding to the heightened priority given to effective corporate governance by enhancing their internal capability to deal properly with workplace issues. Measures include effective whistle-blower policies and helplines and better support for those who believe they are victims of wrongdoing (while also protecting the rights of those accused).