A Word from the Editor - December 2017

Alex Lock, DAC Beachcroft LLP
Friday, December 1, 2017

Whether it is age, experience or the rollercoaster of politics, economics and employment law, time seems to have sped by in 2017. Looking back at my January/February 2017 editorial, I predicted a period of uncertainty for employment law. This was on the basis of two things: Brexit and the election of Donald Trump.

In relation to the latter, the concern was that we were about to enter a phase of classic protectionism as Mr Trump ‘made America great again’, at the expense of everyone else. The shutters would go up in the US, leading to retaliatory measures by China, Russia and the EU, in turn leading to a decline in international trade and a lowering of economic growth. This might have the knock-on effect of depressing wages, employment and profitability, leading to the (almost) inevitable cry that we are too regulated and that businesses are too scared to employ people. We saw a stripping back of employment protection in 2013 on precisely those grounds.

In terms of substance, some may say that Mr Trump has been all mouth and trousers (although I am advised the correct American expression is ‘all hat and no cattle’). Little has changed beyond the tone and the expression, accepting that some may consider that, in itself, has been too much. A new wave of protectionism has not flooded in from across the Atlantic.

Brexit remains an enigma. Looking back to January, it is surprising that so little has moved on and nothing much has become clearer. The concern I referred to was that the UK would go down a route of low tax and regulation, partly to obtain concessions from the EU and partly to remain attractive to business when one of our chief attractions (membership of the Single Market) was to be ditched. I referred to the Repeal Bill and the promise from Mrs May not only to protect but also to extend employment rights.

The Bill has not passed; an amendment moved to protect employment rights derived from the EU was voted down; and no proposals have come from the Government to extend employment rights. Indeed, one opportunity to do so – the Taylor Review – has passed with no substantive response from the Government at all.

Nevertheless, the year did throw up some surprises. Chief among these was the decision of the Supreme Court in relation to tribunal fees. Of course, everyone is now imbued with amazing powers of foresight and prediction: clearly many people knew all along that the Supreme Court would decide as it did. I am happy to admit that I did not and was not only pessimistic that there would be a change, but also concerned about the constitutional position between an elected parliament and an unelected judiciary. I was pleased with the decision all the same and think it was right, whichever way one approaches it.

While that battle has been won (for now) the employment status/worker rights one continues to rage. The article on the Uber/Deliveroo cases has been re-written several times in just a week to keep up with the changing decisions and landscape in this area. It is likely to continue to chop and change over the course of 2018.

For now, however, I take the opportunity to wish you and your families a peaceful and relaxing Christmas and New Year.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.