The Government has done much to improve the regulation of relations between employers and employees and has introduced important new protections for vulnerable employees. However, the existing system, which is now based primarily on individual rights, has serious weaknesses, and is often not enforced.
The decline in collective bargaining with trade unions, which is a very effective means of regulating the employment relationship, has contributed to the creation of a system which relies on individual workers to instigate litigation. This has two particular consequences: it does not address systemic workplace problems and it often relies entirely on an individual worker being prepared to take their employer to court. The current mass litigation on equal pay is a good example of the painstakingly slow application of legislation in an attempt to change workplace systems that fundamentally fail to reflect the original purpose of the law.
At the TUC we acknowledge that the majority of employers treat their workers well and abide by the law. The solution may be to set up a system that recognises that where there is effective voluntary regulation, often through an agreement with a recognised union, a different approach could be used, whereas for the employers who wilfully ignore the law, or don’t bother to understand and apply it, a more interventionist and proactive system is needed.
The Government also has a clear duty to ensure that its legislation is properly enforced. There is a growing consensus that the current enforcement system is not working well. Poor enforcement allows ‘cowboy employers’ to undercut responsible employers. It also enables ‘rogue’ employers to pass on some of their costs to the taxpayer in general through increased spending on benefits, the NHS and other public services.
While the majority of the workforce continue to be employed in standard employment relations, since the 1990s there has been a growth in casualised forms of employment, including agency work and freelancing. Such workers often benefit from limited employment protection and are reluctant to complain about mistreatment for fear of the employment consequences. Using LFS statistics, the TUC estimates that at least 170,000 workers still do not received the National Minimum Wage in full. According to the Labour Force Survey more than a million people do not get their legal minimum of four weeks paid holiday, including bank holidays. Recent case studies gathered by the TUC’s Commission on Vulnerable Employees have uncovered a range of unlawful practices by employers, including employers and employment agencies employing people cash in hand below the minimum wage, taking unreasonable deductions from workers on the minimum wage to pay for accommodation’, making illegal deductions from individuals on the minimum wage for transport, food and utility bills, so that in some cases workers end up paying for the privilege of working for their employer and refusing pregnant employees paid time off for ante natal care.
To deal with those employers who do not comply with the law the TUC has a number of proposals for improvement in enforcement. The existing enforcement agencies must be better resourced to ensure workers’ rights are not violated and that employers comply with their legal duties. They need to be accessible to workers and their representatives and to increase awareness amongst employers of their legal duties. They need increased capacity to undertake proactive and preventive enforcement activities, in addition to responding to complaints by individuals or their representatives.
In addition, there is a need for greater co-ordination between existing enforcement agencies based on better targeted and shared intelligence. Enforcement agencies must be equipped with a toolkit of effective sanctions which act as a deterrent against, and appropriately penalise, unlawful activities.
As the Employment Tribunals will still have a major role in handling individual rights breaches we are anxious to improve the operation of the Employment Tribunal system in two vital respects. Firstly, Employment Tribunals should have power to enforce their own awards rather than applicants having to rely on the County Courts. Enforcement of awards via the tribunal system would be less intimidating, swifter and less expensive for claimants.
Secondly, enforcement through Employment Tribunals is dependent upon claims by individual workers. Many individuals are reluctant to take such steps, for fear of victimisation or dismissal. There is also no provision for unions to bring representative actions on behalf of groups of workers, even in equal pay cases which clearly have a collective dimension. New procedures should be developed to permit unions to bring representative actions in multiple claimant cases to employment tribunals.
Finally the government should harness and enhance the role of trade unions in enforcing employment rights and promoting safe and healthy working environments. Nobody is suggesting that union recognition should be forced on employers and employees who genuinely don’t want it but as a means of delivering better standards it should be on offer as a positive route to better delivery of employment relations. It has been instructive recently to see public support for union rights for groups such as the police.
In a democratic society people understand the need for democracy in the workplace too.