A Word from the Editor - March 2019

Alex Lock, DAC Beachcroft LLP
Friday, March 1, 2019

How do you get someone to do something that they don’t want to do? This can often be the one side of the coin that deals with employment rights and protections that gets skirted around or missed out altogether. You might think this strange, as having a right means little if you are unable to either enforce it or seek redress when it is broken. The reality is that far more attention is paid to what rights there are – and who has them – than to how they are enforced.

In the UK, we have typically relied upon individuals to enforce rights, usually through a legal process. This is not peculiar to employment law. In many areas, the British tradition has been for the Government to introduce legislation in broad terms, for it to be passed by Parliament and for individuals (whether people or organisations) to enforce through the courts. The notion of regulators and bodies set up with the intention of enforcing (usually) obligations is comparatively recent (with the notable exceptions of the factory and mines inspectorates dating back to the mid-19th century).

It is increasingly common, however, to have regulators, part of whose role is to take enforcement action. This might be in financial markets, competition or care homes. With employment law, this enforcement action is largely left to individuals to pursue via employment tribunals. If an employer fails to pay wages, doesn’t provide a statement of terms and conditions or refuses time off for annual leave, these are matters for the worker to pursue. Might it be time to consider compliance in a different way?

Last year, David Lewis, the Labour Market Enforcement Director, produced a report in which he recommended a mixture of education, fines and penalties, together with an extension of the role of bodies such as HMRC in enforcing certain employment law provisions, particularly as they relate to pay. This would alleviate some of the burden on individuals and deal with some of the horrendous lack of compliance by several employers in respect of basic employment law. For example, some 342,000 jobs are paid below the National Living Wage or National Minimum Wage. That represents about 1.2% of all employment jobs, equating to £3.1bn in 2016. Half of that is accounted for by a failure to pay holiday pay.

Arguably, the proposals made were quite modest, with enforcement by state agencies confined to a small number of areas. The Government published its response at the end of last year as part of its Good Work Plan, dealing with proposals under the Taylor Report. The response to Lewis has been described as lukewarm and, to date, no legislation has come forward in relation to his proposal.

As the Brexit debate (so called) moves forward and MPs are tempted or dazzled by promises of ‘dynamic alignment’ in relation to EU worker protections, it is important that the other side of the coin – enforcement – is not left out of the discussion. We saw, only a few years ago, that whatever rights people may have, if it is too difficult, expensive or time-consuming to pursue them, then the rights are worth very little. Consideration needs to be given to education to encourage compliance, but also to relieve some of the burden of enforcement that falls on employees.

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