Employment lawyers unconvinced by Tory pledge to expand workers' rights
Recent rises in tribunal fees make any new employment rights meaningless
The announcement in the Conservative manifesto of a raft of new rights for employees has been received with suspicion by employment lawyers, who say the rise in tribunal fees will leave the proposed laws unenforced in practice.
Cloisters silk Daphne Romney QC said it was ‘very easy to promise rights when people cannot afford to enforce them. On that basis you can promise the moon.’
‘How will rights be enforced?’ succinctly asked Schona Jolly QC, also of Cloisters, as she challenged the expansion of employment rights with no commensurate means of enforcement and called on the media to question the prime minister about the effect of employment tribunal fees on current as well as future workers’ rights.
Tim Goodwin, associate at Winckworth Sherwood, underlined that employment tribunal fees rose to as much as £1,200 under new laws introduced by the previous government, leading to a drop in claims of nearly 70 per cent. ‘It was David Cameron who scaled back employment rights radically, most notably making it harder to bring unfair dismissal claims and introducing huge tribunal fees,’ Goodwin said. ‘Unless action is taken to make bringing a claim more realistic, I can’t see that some of these new rights, such as unpaid leave to care for a relative, will add much because the reality is that, unless workers can enforce their rights, they will not be observed.’
Meanwhile, Leon Deakin, a partner at Coffin Mew Solicitors, said the announcement contained ‘some attractive headlines’ but that a closer examination of the detail left many questions unanswered.
One example, Deakin said, was the proposed statutory right to take up to a year off to care for a disabled dependant. ‘It extends existing rights and creates some flexibility for the vast number of workers who have caring responsibilities. However, the time taken will be unpaid, and therefore I suspect the take up will not be significant and certainly not likely to last for extended periods of time as the norm.’
Another was the proposed statutory right to up to two weeks’ paid leave for child bereavement. Deakin commented that this was ‘difficult to argue with in terms of sentiment and may protect those with unsympathetic or inflexible bosses’ but in his experience, he added, ‘the approach by employers in the most extreme circumstances such as these already tends towards generosity and understanding’.
Deakin also took issue with the announcement that workers would not lose any of the protection currently afforded under EU employment law. ‘The UK has, in many cases, given workers greater rights than it is obliged to, so the chances of ever seeking to remove those due to Brexit are slim. I suspect it is some of the decisions of the ECJ which are more likely to be the targets of revision rather than the “laws” and the commitment today is vague, at best, on whether the guarantee includes these or not.’
Against this backdrop, Deakin said, claims that the new laws would be ‘the greatest expansion of workers’ rights by a Conservative government ring slightly hollow’.
The prime minister, Theresa May, outlined new laws intended to further protect workers’ rights while on a visit to a training facility this morning (15 May). The rules will feature in the Conservative manifesto, which will be published next week.
They will include the right to request leave for training, the right to child bereavement leave, up to 52 weeks off for carers, and possible criminal charges for employers failing to comply with pensions requirements.
Jean-Yves Gilg is editor-in-chief at Solicitors Journal