Guest Blogpost from Richard Lynch: Employment rights roundup

National Minimum Wage rates are to be increased for adult workers and apprentices from 1 October 2012 but current rates are to remain frozen for young workers. The adult rate will be increased by a miserly 11p to £6.19 an hour and the apprentice rate will be increased by an even more miserly 5p to £2.65 an hour. Rates for young workers will remain unchanged, at £4.98 an hour for 18-20 year olds and £3.68 an hour for 16-17 year olds. This means that all workers on the minimum wage will suffer a pay cut in real terms and it is disappointing that the Low Pay Commission (which has union as well as business representation) should have unanimously recommended the new rates. Still, realising that they will never be required to work for such a pittance, must have made the decision easier for Committee members.

State benefit rate changes from 6 April 2012 include: Jobseekers Allowance – up £2.80 a week to £56.25 for under-25s and up £3.50 a week to £71 for over-25s; Statutory Maternity and Paternity Pay – up £6.72 a week to £135.45; Statutory Sick Pay – Up £4.25 a week to £85.85. However Child Tax Credit, which had been available to parents earning up to £41,000 a year, will now be restricted to parents earning up to £26,000 (one child), £32,000 (two children) and £38,000 (three children). Working Tax Credit is also being restricted and couples with children will now have to work 24, rather than 16 hours a week to qualify.

Unfair dismissal protection could be weakened for up to 2.7 million employees following the decision to double (to two years) the qualifying period for making unfair dismissal claims to Employment Tribunals, from 6 April 2012. Even though workers in employment at that date will still be able to make claims after one year’s service, there will be a disproportionate effect on some groups, according to the TUC. These will include women working part time, employees from black and minority ethnic communities and young workers, whose length of service tends to be shorter than for the majority of employees. The coalition argues that watering down unfair dismissal protection will help boost recruitment but the TUC, rightly in our view, believes it will encourage a ‘hire and fire’ culture which will lead to increasing numbers being shown the door.  However, it shouldn’t be forgotten that short-service workers who are dismissed will sometimes be able to make ET claims on issues such as discrimination. A union member I have been representing was recently dismissed after complaining that the manager was being racist towards her. Unable to claim unfair dismissal because of short service, the member made a claim of race discrimination and victimisation (suffering a detriment as a result of complaining about discrimination). That resulted in a decent out of court settlement, despite the fact that an unfair dismissal claim could not be made.

Moving to part time work after maternity is not a legal right in the UK, although there is a right to request it and employers are supposed to give serious consideration to such requests. It is therefore encouraging to note that HSBC has announced that it will now guarantee a part-time role at current title and salary grade, if requested, to all staff returning from maternity or paternity leave. This is believed to be the first time that such a large company has offered this guarantee and it is hoped that it will increase pressure on others to do likewise. HSBC also offers 14 weeks’ maternity leave on full pay (as opposed to the statutory six weeks at 90% of pay) and up to 12 days leave for fertility treatment a year.

Parental leave rights should have been improved from 8 March 2012 but the coalition has postponed the improvement. The current rule is that employees with at least a year’s service can take up to 13 weeks’ unpaid leave (in one week units)  for each child, provided the child is under age 5, under 18 if disabled or within five years of placement if adopted. There had been EU agreement that this would rise to 18 weeks but this will not now happen until 2013.

Richard Lynch is a Dudden Hill resident. He is a retired Unite the Union official and currently conducts voluntary work on employment rights for the Brent Community Law Centre. He also acts as an accompanying representative for the GMB union.


More messing with employment rights

The coalition is proposing to charge workers up to £1,250 to take claims to employment tribunals and to prevent workers with less than two years’ service from making claims for unfair dismissal. In addition, a leaked report, commissioned by David Cameron, is proposing to make it easier for employers to dismiss workers without having to worry about tribunals at all.

In this report, venture capitalist Adrian Beechcroft makes the ridiculous claim that unfair dismissal rules are making it too difficult for employers to dismiss under-performing workers and that making it easier would encourage economic growth and “increase employment”.

His proposal is to introduce a new system where dismissal would “not be unfair if no particular reason is specified” provided the dismissed employee was given notice pay and compensation equivalent to statutory redundancy (one week’s pay per year’s service for most people). He calls this ‘quick fire’ system “compensated no fault dismissal” and any worker dispatched in this way would have no right to take a claim for unfair dismissal to tribunal.

He admits that the downside of this proposal is that “some people would be dismissed simply because their employer doesn’t like them” but he believes this would be “a price worth paying”.  He also points out that, as there is no EU legislation behind UK unfair dismissal law, it would be comparatively easy to make the necessary legislative changes.

It is not known whether the coalition will pick up this daft proposal but it is known that a large number of other proposals to weaken workers’ rights are also under consideration at the moment. These include proposals to reduce health and safety regulations (the Lofstedt Review), to reduce rights of workers in sickness absence situations, to reduce the redundancy consultation period and to ‘simplify’ the National Minimum Wage.

Another measure, which is not a proposal but established coalition policy and written into law, is a system for allowing employers to get out of giving equal pay to temporary/agency workers under the new Agency Workers Regulations. This system is called the Swedish Derogation Model and it is now being adopted by a range of major employers, including Tesco, Carlsberg and DHL. This little-known rule allows employers to reach agreement with employment agencies which result in the agency workers being taken on as employees by the agencies, thus making them ineligible for equal pay after 12 weeks in the company where they are working.

Employees and agencies have to comply with certain conditions before they can adopt this model but these conditions are hardly onerous:

  • the contract of employment with the agency must be in place before the agency worker’s first assignment with the company where they will be working,
  • the agency must agree to pay the workers with these employment contracts a ‘minimum amount’ when they are between assignments and
  • the agency must take reasonable steps to seek suitable further employment for the agency worker when their assignment ends and make sure it is offered to them.

However, the minimum amount that has to be paid is 50% of the worker’s average basic pay for the previous 12 weeks on assignment, provided that figure is at least of National Minimum Wage level. This differential is worse than the differential which currently exists between agency workers’ pay and pay in the companies where they are working (generally considered as around 30%). In addition, the agency can decide how many hours the agency worker is contracted for, provided it is greater than one hour a week! The ‘wage between assignments’ which is offered is therefore virtually meaningless.

Although agency workers who complete 12 weeks in  a particular role cannot be denied certain rights under the regulations (equal holidays with permanent employees etc), this model must be one of the most blatant mechanisms for undermining a piece of legislation improving workers’ rights that have ever been seen.

A Unite motion to this year’s TUC called for the model to be challenged in law but it must also be challenged in the workplace and union reps are encouraged to ensure that it is. Don’t let agency workers be done over in this way in your workplace.

Richard Lynch is a Dudden Hill resident. He is a retired Unite the Union official and currently conducts voluntary work on employment rights for the Brent Community Law Centre. He also acts as an accompanying representative for the GMB union.