Employment law The WritePass Journal

Employment law Abstract Employment law ) Employment Law 2012, Oxford University Press, p.227 Collins, H (2010) Employment law. Oxford University Press p.167 Emir, A (2012) Selwyns Law of Employment, Oxford University Press, p.509 Employment Act 2008 Employment Rights Act 1996 Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 Sandwell West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09 Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 Employment Law Introduction Employment Law ) aims to tackle perceptions that there are ‘too many’ employment laws, through lobbying for reform, while ensuring that reforms are not at the expense of compromising fairness for individuals. The report argues that although businesses complain about the amount of employment legislation, in reality the UK has one of the most lightly-regulated labour markets among developed countries. Only the United States and Canada have lighter overall employment regulation (OECD Indicators of Employment Protection, 2008: cit in: BIS, 2012). Arguments in favour of more Employment Legislation The UK’s ‘light touch’ employment regulations may be reflected in their flexible working legislation. The right to request flexible working does not enforce employers to comply with individual requests, only to offer the procedures for them to do so. It is therefore argued that it is individuals (particularly with dependents) and the social organisations who support them, who favour increasing employment legislation, in order to provide fairness at work that ensures a work life balance (Burnett et al, 2012). In a 2012 report by Working Families and One Plus One, Happy Homes and Productive Workplaces, from a sample of over two thousand respondents, nearly eighty percent of respondents felt that flexible working was the most beneficial working arrangement (Burnett et al, 2012). However, the report argued that in order to support flexible working, further legislation was needed in order to promote arrangements that are mutually beneficial and embedded as a culture of flexibility, rather than an approach that manages requests as an exception to the norm (ibid). Along with relationship and family support organisations, a growing number of business and HR associations support further employment legislation and reform to push forward the benefits of flexible working (CIPD, 2013). Drawing on the findings of the 2011 Workplace Employment Relations Study (WERS) the CIPD suggest that employment legislation needs to increase, due in part to a lack of effective mechanisms to tackle labour relations. The report points to recent socio-economic and political changes in the UK where an increase in employment law is becoming ever more essential. For example, the facilitation of employment legislation during the 1980’s and 1990’s discouraged union membership and reduced collective bargaining powers. This is reflected in the WERS study, in 2012, which shows very low levels of employee engagement in collective bargaining, only six percent in privat e businesses, with fourteen percent of employee trade union membership in the same sector (Wanrooy et al, 2011). The near absence of collective bargaining, although removing employer constraints on freedom of action, raises concerns over employee voice, where employment legislation may be seen as an attempt to close this gap (CIPD, 2012). Danzinger and Waters Boots (2008), argue that in reality flexible working legislation does not go far enough. Unions and parent advocacy groups argue that many workers who would benefit from flexible arrangements do not ask for them out of fear of being refused, or because of a fear that asking may jeopardise their careers. Research suggests that employees will only ask for flexible work if they believe their requests will be approved. It is also argued that flexible working legislation may reinforce gender inequalities by linking flexible work and care responsibilities, reinforcing a ‘mother career track’ that pairs women with demotions of pay and position. Further, unfair dismissal claims, involving refusal of flexible working, tend to favour women, who can rely on anti-discrimination legislation, such as in Adedeji v The City of London Corporation (2007) (see Appendix 2), in order to strengthen their claims (ibid). Future Changes to Flexible Working Legislation New flexible working employment legislation to come into effect in 2014 appears to address some of the above criticisms. The government plans to extend the statutory right to request flexible working arrangements to all employees (with over twenty-six weeks service) whether they are a carer or not. This removes the present requirement that the employee must have caring responsibilities. In addition, the procedure for considering flexible working requests, which is currently very prescriptive, will be relaxed and employers will instead be required to consider requests in a reasonable manner and within a reasonable time frame (ACAS, 2014). Currently, it is possible for an employee to claim compensation due to the employer’s failure to comply with the procedures laid down in the Flexible Working (Procedural Requirements) Regulations 2002. In Bryan v Corporate Advertising Ltd ET/2105111/10, although the tribunal rejected Mrs Bryan’s claim that she was constructively dismissed and subjected to indirect sex discrimination, it was however held that the company had breached the procedures laid down by the 2002 Regulations. This procedural breach may no longer by relied upon under the 2014 legislation. However, successful claims may still be used under anti-discrimination legislation. In Commotion Ltd v Rutty [2006] IRLR 171 (EAT), it was upheld that the employee had been subject to constructive unfair dismissal and indirect sex discrimination, due to the employer’s failure to have any lawful reason to reject flexible working conditions. However, in Winfindale v Debenhams Retail plc (ET/2404134/10, 20 Aug 2010), it was held that there was no indirect sex discrimination where an employer showed that they took seriously a request to return from maternity leave on a part-time basis to a managers role. According to a Equality and Human Rights Commission report (2009), proposed changes in flexible working legislation will continue to fail to encourage workers in management positions to request flexible arrangements (EHRC, 2009). The report suggests that under current legislation, employee’s in management positions are less likely to make a request for flexible working, and when they do, they are less likely to succeed (ibid). In the government’s Consultation on Modern Workplaces Report (2012), it is argued that current legislation that prioritises certain groups reinforces the idea that flexible working is only for those in caring roles, whereas the aim of the new legislation is to promote a culture where flexible working is a legitimate ambition for all employees (HM Government, 2009). Although the legislation proposes to ‘allow’ but not ‘require’ employers to prioritise competing requests, employers will continue to have to show that all competing requests cannot always be accommodated, in their entirety, on business grounds (ibid). Drawing on the CIPD report (2005), a large majority of employers find compliance with the current legislation relatively straightforward. Of those who have had problems, the main barrier to compliance is that managers find it difficult to manage employees on different flexible working arrangements. Given that the new legislation attempts to widen the right to request flexible working to all employees, employers may face an increased challenge to accommodate competing requests. However, according to the same report, since the introduction of the current legislation, less than one-tenth of employers have faced grievance or disciplinary proceedings, or an employment tribunal claim. Further, research shows that it is large multi-national companies that benefit most from flexible working arrangements. Among those benefits are improvements in staff retention, improved morale and a reduction in costs (CIPD, 2005). These reported benefits need to be balanced against arguments that oppose mor e legislation promoting flexible working (ibid). More significantly, the statutory provision to enable greater flexibility in the workplace looks set to increase in the future. In a recent report, Management Futures – The World in 2018 (2008), the findings predict that organisations will become more virtual, the premium for talent will increase, with new aspirations and ambitions of a multi-cultural, widely dispersed workforce (Chartered Management Institute (CMI),2008). Conclusion This report has attempted to provide an insight into the contextual background surrounding employment laws in the UK today. The focus on flexible working legislation may be seen as a salient debate, given the competing claims from employers, employees and the organisations that support them (Burnett et al, 2012). At the same time, against a backdrop of socio-political and economic changes there has been an increasing legislative response to address both the rights of individual workers and a drive to improve competition, efficiency and development in the market (Pettinger, 1998). Given the predictions of further changes in the labour market, statutory provision looks set to increase in response. The debate for or against increasing legislation surrounding flexible working therefore needs to be balanced with the benefit to both businesses and the rights of individuals (CIPD, 2005). Word count: 2644 Bibliography Advisory, Conciliation and Arbitration Service (ACAS) (2014) Employment Law Update. Available [online] from: acas.org.uk/index.aspx?articleid=3909 [Accessed on 4th January 2014] Anderman, S.D (2000) Labour Law:Management Decisions and Workers Rights:4th Edition. Oxford: Oxford University Press British Chambers of Commerce (BCC) (2005) Employment Law: Burden or Benefit? BCC Available [online] from: britishchambers.org.uk/ [Accessed on 4th January 2014] British Chambers of Commerce (BCC) (2010) Employment Regulation: Up to the Job? March 2010. 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