Submission to the Human Rights at Work (Inquiry)
Written evidence submitted by Dr Jamie Woodcock (HRW0031)
The following submission is written by Dr Jamie Woodcock, who is a Senior Lecturer in Management at the University of Essex. Dr Woodcock has conducted ethnographic fieldwork and interviews with workers across a range of sectors over the past ten years. He has written extensively about workers’ rights across a range of examples in Britain.
- Executive summary
A.1. The two-year qualifying period for the right not to be unfairly dismissed undermines Freedom of Association and the Right to Strike.
A.2. There are serious concerns about the effectiveness of Labour Market Enforcement in the UK. Urgent changes are required, including the establishment of a single Labour Market Enforcement body with appropriate resources and funding.
- Freedom of Association and the Right to Strike
The Employment Rights Act 1996 consolidated a range of employment rights. However, some of these rights only come into effect after two years of employment, following the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012. In relation to the Freedom of Association, the right not to be unfairly dismissed requires 2 years of continuous service.
There is evidence that engaging in activities covered by Freedom of Association and/or exercising the Right to Strike can attract retaliation from employers, up to and including dismissal.
There are reasons for dismissal that are “automatically unfair”, including membership of a trade union, participating in official industrial action, or asking for a legal right at work. Along with discrimination claims, these can be brought to an Employment Tribunal before the 2 years of continuous employment.
The most recent statistics (January to March 2021) for the average waiting time from Receipt to First Hearing at an Employment Tribunal was 49 weeks.
While there are protections against unfair dismissal or other forms of employer retaliation, for many employees these rights are complex to understand in practice. This raises serious concerns for access to justice if waiting times are almost a year for the First Hearing at an Employment Tribunal. While interim relief is possible, the threat of dismissal remains a powerful option for undermining the exercising of rights at work.
The lack of effective protections from unfair dismissal means that many workers are at risk, particularly during their first two years of employment. For employees entering employment, as well as industries with a high turnover like hospitality or retail, this means facing additional barriers to their Freedom of Association and/or Right to Strike.
Removing the qualifying period for unfair dismissal would increase the legal protection of employees, encouraging Freedom of Association and access to other rights.
- Labour Market Exploitation
Labour market enforcement in the UK is overseen by the Office for the Director of Labour Market Enforcement. There are three main enforcement bodies, the Employment Agency Standards Inspectorate (EAS), Gangmasters and Labour Abuse Authority (GLAA), and HMRC National Minimum Wage (HMRC NMW). While there have been discussions about the creation of a single Labour Market Enforcement body since 2019, there has been no legislation introduced to do this.
Employment rights, including those discussed in section B, are only effective if they are enforced. This involves two key challenges: first, that employees are aware of their rights; and second, that there is access to effective enforcement and justice.
There are many issues with labour market enforcement in the UK. As Jason Moyer-Less, the former General Secretary of the IWGB has argued:
“The UK’s track record on enforcing workers’ rights is abysmal; very few are enforced at all and many of those that are enforced are done so poorly, with the former Director of Labour Market Enforcement, David Metcalf, claiming that companies faced a one in 500 years chance of inspection over minimum wage.”
The IWGB trade union has been involved in a range of strategic litigation cases to challenge this lack of enforcement.
Given the infrequency of inspections, as well as the under-resourcing of the organisations involved, labour market enforcement is clearly lacking in effectiveness today. These protections are even weaker for those with “worker” status, including casualised or more precarious forms of employment, and those in the so-called “gig economy.”
The introduction of a single Labour Market Enforcement body would be an important first step in developing effective mechanisms for enforcement. However, further resourcing and funding are required to develop a body that is capable of effective enforcement across the UK labour market.