A Word from the Editor - January/February 2018

Alex Lock, DAC Beachcroft LLP
Thursday, February 1, 2018

Welcome to our first issue of 2018. I am not sure whether to venture into the prediction business for the coming year, so I look ahead with some trepidation as to how events may unfold and shape employment law over the coming 12 months.

Writing in the immediate aftermath of the insolvency and liquidation of Carillion, as well as having the briefest read of the CAC’s decision concerning an application by the Independent Workers Union of Great Britain on behalf of out-sourced workers for recognition of collective bargaining at the University of London, it would appear that out-sourcing is at or near the top of the list of events. I have heard many politicians – and a few employment lawyers – discuss the principle of outsourcing by the public sector; the perils of capitalism; and the prospect of tightening up ‘employment law’ in relation to both protecting workers and penalising bosses where failures occur.

Whatever the rights and wrongs of the arguments, I am not persuaded that there will be any concrete proposals for change arising from these. While there will be challenges in relation to worker status, true or joint employers and the rights that are granted or denied as a consequence, until the Government finds the will and the time to address these issues, change can only come through the courts, which will always be constrained in how far-reaching or innovative they can be. Given that the promised substantive response to the Taylor Review has not yet materialised, the will the time are some way off.

One major obstacle is Brexit. Until there is clarity and detail about what the Government is realistically seeking to achieve in both a transition period and beyond, it is difficult to see what can be achieved in negotiations. In the absence of that, there is room for speculation and flag flying from many quarters. One voice that has been consistent is from those wanting to remain in the single market and customs union, which would suggest no change to existing (and future) EU-derived employment protection.

Another consistent voice is from those looking to achieve divergence from EU regulation, with the suggestion that the UK should loosen employment regulation. For some it is ideological; for others it is either a pragmatic position and/or a negotiating position in the event that a ‘no deal’ is arrived at. Looser regulation, the theory goes, would allow the UK to maintain or improve its global competitiveness, particularly in attracting and hosting foreign investment and industry. I suspect little clarity beyond any transition period will have been achieved by the end of the year.

One other area proposed for reform is within the ELA itself, namely the proposals set out by our chair, Gareth, in his column this month. The proposals are significant and substantial and should be considered carefully by all members. I am wary of proposals to change how an established democratic process works, either to deal with perceived minor issues, or because it is thought that the electorate is too dim or disinterested to be trusted to make a decision. I am looking forward to debating what is proposed at our AGM in May this year. Whichever side of the debate you are on, please take part.

Alex Lock, DAC Beachcroft LLP

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