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Labour pains: Workers’ rights under scrutiny in 2021

Posted on Mon, 25/01/2021

As Dilbert once said, an optimist is simply a pessimist with no job experience. In today’s domestic labour market, this now rings truer than ever.

UK workers had little to be optimistic about in 2020, with challenges including the continued expansion of unconventional (so-called ‘casual’) working arrangements, Brexit uncertainty and of course, the COVID-19 pandemic.

In 2021, the impact of the pandemic has been laid bare with numerous reports showing that young people, gig-economy workers and the lowest paid have been disproportionately impacted by the economic headwinds buffeting the country. In addition, there are a record number of redundancies, a position which is likely to get much worse.

Reports surfaced about a review of employment rights on 14 January. The government subsequently denied it was planning to remove EU-workers’ rights (such as rights relating to the calculation of holiday pay under the Working Time Regulations 1998), but on 19 January Business Secretary Kwasi Kwarteng confirmed that business leaders are being consulted on retained EU employment rights.

This comes on the back of reports in June 2020 of a leaked email between Whitehall and the Law Commission which suggested the government was considering reintroducing Employment Tribunal fees, the previous fees having been ruled unlawful by the Supreme Court in 2017.

With more individuals than ever needing to rely on their statutory employment rights, as is reflected in the already overwhelmed Employment Tribunal system, it feels the wrong time to dilute these rights. The pandemic has shown that flexibility can be achieved in many roles (particularly those that are traditionally office-based) without the need to impose casual working arrangements which can leave people unprotected.

David Leslie, group leader and partner of employment at Lyons Davidson, a member of the Association of Consumer Support Organisations (ACSO), notes, “There is an easy case to make for legislation to clarify certain workers’ rights, for instance, in relation to holiday entitlement or employment status. However, the need for changes to employment rights and the scope to make them is less clear. Change will need to tread a fine line between the desire to free up business and minimise the burden on tribunals against the restrictions of the Level Playing Field agreement and the greater protection wishes for by some voters”.

The government’s answer to increased employment claims, an under-pressure tribunal system and an economic downturn should not be to throw up barriers to justice.

There is a need to balance business interests in all of this, but it should not be done at the expense of workers’ rights. So, while we await the outcome of the consultation on EU-derived labour law, and further details may emerge from today’s Opposition Day debate on the issues, we must hope Dilbert’s warning about optimism proves false.

Author: Jonothan Scollen, ACSO secondee and trainee solicitor at Lyons Davidson.