It’s a shame about BEIS

So, just like James Bond, naming & shaming of employers who breach the national minimum/living wage is back. Well, almost back. Having been suspended since the last round of naming & shaming in July 2018, pending the outcome of a ministerial review, the scheme will resume shortly, according to the Minister’s answer to a written Parliamentary Question on 23 January, and a report in the Financial Times on 11 February.

And, with the outcome of the ministerial review having now been published (see pp 18-23), the only remaining question is whether the next round of naming & shaming will come before the UK release of No Time To Die on 3 April. Except … well, the ministerial review has resulted in a few changes to the scheme, and the TUC, for one, is not happy. In its Valentine’s Day card to BEIS, the TUC notes that:

A controversial change to the rules means the minimum arrears threshold for naming and shaming will rise from £100 to £500. If this threshold had been in place under the old rules, it would have excluded about a quarter of cases.

Going forward, it will mean employers who deliberately try to shave relatively small amounts off minimum wage pay stay under the radar. Think cafes and bars demanding unpaid trial shifts, or home care providers who do not pay for travel between clients, for example.

The new threshold is simply too high – ministers must think again.

In fact, if the new £500 threshold had been in place for the last three rounds of naming & shaming – in December 2017, March 2018 and July 2018 – it would have excluded 218 (32%) of the total of 678 employers named. However, between them, those 218 employers accounted for just £60,352.55 (1.4%) of the total of £4.3 million of arrears owed by the 678 employers named, and just 778 (1.6%) of the total of 47,967 workers involved.

The lists of named & shamed employers published by BEIS have always had a long tail of relatively minor offenders. And it is a moot point whether the naming & shaming of such relative small fry – in addition to them having to pay the arrears owed plus a financial penalty – actually achieves very much, in terms of overall deterrence.

Then again, those who would have escaped being named & shamed in the last three rounds include the Wolverhampton Wanderers football club (which owed a total of £450.79 to 17 workers), the Derbyshire County cricket club (which owed £225.16 to one worker), and the London Irish rugby union club (which owed £131.73 to one worker). So it’s not true to say that none of the ‘small fry’ are household names, and the TUC is right to highlight that the naming & shaming scheme will now be even less transparent that it was.

However, in my view, the raising of the threshold from £100 to £500 pales into insignificance when set against the fact that, as previously noted on this blog, large employers who ‘self-correct’ sometimes substantial sums of arrears when challenged by HMRC already get away with not being named & shamed for those ‘self-corrected’ arrears (even if they are named & shamed in respect of smaller sums of HMRC-enforced arrears).

Having been quietly introduced by BEIS and HMRC in 2015, and never formally announced, such self-correction by employers now accounts for almost half of the arrears identified, directly or indirectly, by HMRC enforcement of the minimum wage.

Over the three-year period 2015/16 to 2017/18, no less than £16.5 million (45%) of the total of £36.8 million of arrears identified through HMRC enforcement was identified through such ‘self-correction’ (see chart below, sourced from Figure 9 on page 29 of the Low Pay Commission’s April 2019 report, Non-compliance & enforcement of the National Minimum Wage).

Yet not a single employer has been named & shamed in respect of that £16.5 million of arrears, and not a penny has been imposed in financial penalties. Which means those employers have evaded (and the Government has kissed goodbye to) up to £33 million worth of financial penalties (the current penalty rate is 200% of the arrears owed). That’s more than the current annual budget for enforcement of the minimum wage.

Strangely, the TUC doesn’t appear to be the least bit concerned about this, as the issue is not even mentioned in its complaint about the new £500 threshold. But, as I have asked previously on this blog, is it fair that the very worst offenders are thus able to minimise both their ‘shame’ and the sum of penalties imposed? Do the public not deserve to know the full extent of an employer’s disregard of the law? As things stand, we do not know the name of a single employer involved in cheating their workers of that £16.5 million.

“I’ve never been too good with names,” sang Evan Dando and The Lemonheads on the title track of their fifth album It’s a shame about Ray in 1992. Someone at BEIS should have a listen. Because not only does their naming & shaming scheme lack transparency – essential to the very purpose of the scheme – but it is not even being applied to the biggest and worst offenders.

Posted in Workers' rights | Tagged , , | Leave a comment

New Year, new enforcement body?

So, Boris Johnson held and won the general election that, back in August, I predicted he might well hold and win on the back of a ‘deal’ with the EU27 that, at that time, most commentators thought less likely than a disastrous ‘no deal’ exit on 31 October. Sadly, the People’s Vote campaign is dead and buried alongside the political careers of some of its leading advocates. And the second Queen’s Speech in as many months is not simply more substantive than the first, but is brimming with Bills good, bad and ugly.

In short, life goes on – for policy wonks at least. And chief among the Queen’s Speech bills, for this policy wonk, is an Employment Bill that, according to the Government’s somewhat sketchy background briefing notes, promises:

●  Creating a new, single enforcement body, offering greater protections for workers.

●  Ensuring that tips left for workers go to them in full.

●  Introducing a new right for all workers to request a more predictable contract.

●  Extending redundancy protections to prevent pregnancy and maternity discrimination.

●  Allowing parents to take extended leave for neonatal care; and introducing an entitlement to one week’s leave for unpaid carers.

●  Subject to consultation, the Bill will make flexible working the default unless employers have good reason not to.

As noted previously on this blog, the proposal to create a new, single enforcement body not only has a long history featuring yours truly, but also appeared in the election manifestos of both Labour and the Liberal Democrats. Whether these near-identical (albeit somewhat vague) manifesto commitments will translate into cross-party parliamentary support for this element of the Bill remains to be seen, not least as the TUC and major trade unions such as Unite remain (unreasonably) hostile to the idea.

However, with organisations such as Acas and the Law Society welcoming the proposal in their responses to the BEIS consultation that closed in October, it may well be that a Fair Employment Agency is now a real possibility. Which is (probably) good news. For, as Acas notes in its response to the consultation, the potential benefits of such a single enforcement body include

“raising the visibility of enforcement options overall, as well as bringing greater clarity for both workers and employers. Having a single agency instead of three could make it more straightforward to signpost both workers and employers and raise their awareness of where to seek help and advice. This is particularly important for reaching high risk sectors and the more vulnerable workers in society, many of whom are likely to have limited understanding of their employment rights and possibly poor English, and are thus likely to need special help. As the [BEIS] consultation document makes clear, a single agency would also allow for more coordination across the different employment rights covered by the existing bodies and provide users with a more integrated service.”

That said, such a proposal is arguably at odds with suggestions of a post-Brexit erosion (or “bonfire”) of EU-derived (and even other) employment rights, and with the Johnson government’s somewhat less than concrete commitment to a ‘level playing field’ with the EU on such matters. For the whole point of a new, single enforcement body would be to protect and strengthen that level playing field, to the benefit of both workers and employers.

Other elements of the Bill, such as making flexible working the default and the proposed neonatal leave and pay – the latter a deserved policy win for the campaign group Bliss – may well receive cross-party support, while ministers are likely to face pressure from Labour to go further than planned on redunduncy protection, and adopt the so-called German model advocated by Maternity Action and others, which was pledged in Labour’s general election manifesto. And the inclusion of such measures in the Bill might even facilitate a much-needed debate about replacing the deeply flawed and chronically unsuccessful system of Shared Parental Leave.

So, many details yet to be seen, and many important questions still to be answered. But, after three years of brain-dissolving Brexit madness and policy-making constipation, (policy) life seems set to move on. Maybe.

Happy New Year.

Posted in Workers' rights | Tagged , , , | Leave a comment

New ET claim stats: don’t hold the front page

On Friday, when you were possibly too busy drowning your sorrows to notice, the Ministry of Injustice published the latest set of quarterly employment tribunal (ET) statistics, covering the period July to September 2019 (Q2 of 2019/20). And, at first glance, there seemed to be good news for underemployed employment lawyers: a stonking 23% rise in the number of single claims/cases, from 9,722 in Q1, to 12,007.

However, in its commentary on the data, the Ministry notes that this increase is largely due to “the inclusion of 1,700 [single] cases that will be reclassified as multiple claims once fully vetted”. And a quick scan of Table C3 of Annex C (ET receipts) suggests that most of these 1,700 single cases awaiting reclassification as multiple claims were lodged in Scotland in August. Removing these 1,700 cases from the data leaves the increase in single claims/cases looking somewhat less dramatic, but it is worth noting that the number of such claims/cases was nevertheless above 10,000 for the first time since Q2 of 2013/14.

Then again, it is not at all clear from the data on jurisdictional claims what is driving the relatively mild but steady upwards trend in the number of single claims/cases since Q3 of 2018/19. For, as the following table shows, in all but three of the 22 jurisdictions (including ‘Others’) identified by the Ministry of Injustice in its statistics, the year-on-year trend is either downwards (15 jurisdictions) or only marginally upwards (four jurisdictions). So, this quarter, we should at least be spared from garbage press reports about the impact of #MeToo on ET claim numbers.

Jurisdiction Jan – Sept 2018 Jan – Sept 2019 % change
Age discrimination 1979 1365 -31.0
Breach of contract 10382 10540 1.5
Disability discrimination 5025 5443 8.3
Equal Pay 24804 20268 -18.3
National Minimum Wage 311 231 -25.7
Part-time workers Regs 204 213 4.4
Public Interest Disclosure 1990 2007 0.9
Race discrimination 2617 2561 -2.1
Redundancy (inform & consult) 4817 3628 -24.7
Redundancy pay 3687 4321 17.2
Religion/belief discrimination 549 511 -6.9
Sex discrimination 7954 4670 -41.3
Sexual orientation discrimination 338 327 -3.3
Suffer detriment/UD – pregnancy 1222 1181 -3.4
TUPE 585 468 -20.0
Unauthorised deductions 17808 16306 -8.4
Unfair dismissal 16455 15024 -8.7
Working Time Directive 42680 19876 -53.4
Written pay statement 2065 490 -76.3
Written statement (dismissal) 222 224 0.9
Written statement (T&Cs) 1053 932 -11.5
Others 14455 21544 49.0
Total 161202 132130 -18.0

Finally, the Ministry’s commentary on the latest set of data confirms that the mean age at disposal of single ET claims/cases continues to creep upwards, and in Q2 was greater than in any quarter since 2014.

However, talk to almost any employment lawyer, and they will tell you that even this figure fails to reflect the long delays that they are currently experiencing in the processing of their ET cases. Which is setting off an alarm deep inside this wonk’s sleepy brain: We currently have a situation – a steadily rising number of claims (singles, at least), and a chorus of complaint (from employment lawyers) about the ET system being clogged up – that is not unlike the situation in 2011 – a steadily rising number of claims (all claims, at least – single claims/cases were actually falling, but no one yet knew), and a chorus of complaint (from employer bodies such as the CBI) about the system being clogged up – that was used by ministers to justify the proposed introduction of ET fees.

Posted in Justice, Workers' rights | Tagged , | Leave a comment

Brexit: Never really over

(With apologies to Katy Perry)

I’m losing my self-control
Fuck, the Tories got back in
But I don’t wanna fall down the rabbit hole
Cross my heart, I can’t do it again

I tell myself, tell myself, tell myself, “Draw the line”
And I do, I do
But once in a while, I trip up, I cross the line
And I think of the EU

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Oh, we’re in such a mess
Brexit isn’t the best
Boris said “get it done”
But I know it’s never really over

Just because it’s over doesn’t mean it’s really over
Boris said “get it done”, but he’ll be negotiatin’ again
And we’ll face a ‘no deal’ cliff edge all over again

Just because it’s over doesn’t mean it’s really over
We’ll never get a ‘final say’, we won’t be voting again
Now we just get to ‘do Brexit’ all over again

Thought we kissed goodbye
Thought we meant this ‘deal’ was the last
But I guess it’s never really over
Thought we drew the line
Right through EU and I
Can’t keep going back
I guess it’s never really over, hey

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
And I’ll have to get over EU all over again

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
Over EU all over again

Posted in Uncategorized | Leave a comment

Personal Independence Payment – a saga

This post – about my son’s recent reassessment for Personal Independence Payment (PIP) by the DWP – will only be of interest to those applying for PIP or advising those doing so, and is posted in case it is helpful in any way. It is also a case study in how poor the DWP’s decision-making is, and possibly offers a couple of lessons to claimants and advisers.

Sam’s disabilities result from him having suffered severe pneumococcal meningitis in December 1999, when aged 20 weeks. The meningitis left him profoundly deaf, hemiplegic, epileptic (since resolved), and with mild learning difficulties (not apparent and diagnosed until some years later). In June 2001, Sam received a cochlear implant at Great Ormond Street Hospital, and in 2007 he received a bilateral cochlear implant.

In March 2016, having been in receipt of Disability Living Allowance (DLA) for more than a decade, Sam was reassessed and transferred over to Personal Independence Payment (PIP), at the standard rate for both Daily Living (a total of 8 points for ‘communicating verbally’, ‘reading’, and ‘budgeting’) and Mobility (10 points for ‘planning & following a journey’). And, as Sam was assessed by the DWP as not being able to manage his own financial affairs, including his PIP claim, I was made his ‘Appointee’.

Looking back now, I could perhaps have queried some of the DWP’s allocation of ‘descriptors and scores’ in 2016, such as just 2 points (out of a possible 12 points) for ‘communicating verbally’, which to my mind seemed a bit harsh for someone who is profoundly deaf.

However, overall, the PIP award did not seem unreasonable, given that Sam was still a child, and in financial terms it was not dissimilar to what Sam had been receiving previously under DLA. Furthermore, the award letter only gave the ‘descriptors’ that had been allocated to Sam, so I had no way of knowing whether he actually fitted better in different descriptors (I was not aware that the full set of descriptors is in fact available online). And, as a family, we had other priorities, such as challenging our local education authority in relation to their funding of Sam’s place at his residential school for the deaf.

Fast forward to June 2018, when the DWP called Sam for reassessment. However, as the DWP was only able to offer a ‘consultation’ on a week-day, at an assessment centre in London, and as Sam was away at his residential school (near Newbury) most weeks, the assessment did not take place until 4 March 2019, when Sam was home for half-term. I accompanied Sam to the ‘consultation’ as his Appointee.

The ‘consultation’ was a joke. At the outset, the assessor apologised for English not being her first language, and explained that she had only moved to the UK (from the Philippines) two months previously. Perhaps this shouldn’t have mattered, but it did mean, for example, that we later wasted 15 minutes after the assessor leapt on the fact that Sam has a provisional driving licence, which she immediately assumed must mean Sam has passed a driving test and drives a car. In fact, Sam has never sat behind the wheel of a car, and (like many of his deaf peers) only has the licence as a handy means of ID. But the assessor had never heard of and did not understand the concept of a provisional driving licence, so – while I was only supposed to be observing – I had to intervene repeatedly to explain it to her, as Sam himself was (understandably) unable to do so.

Whatever, on 12 March, the DWP terminated Sam’s PIP award, having allocated him just 2 points for Daily Living (for ‘communicating verbally’), and zero points for Mobility. So I lodged a request for Mandatory Reconsideration, which in July resulted in the DWP adding just 2 points for Daily Living (making budgeting decisions).

Sam’s disabilities are permanent, and will never improve. He will always be profoundly deaf, so will always rely on his cochlear implants for (less than perfect) communication, and he will always have the learning difficulties that prevent him being able to make even the most simple budgeting decision. So, surprised and disappointed by this ‘nil award’ by the DWP, and its confirmation on Mandatory Reconsideration, I lodged an appeal to the Tribunal.

However, on 22 August, I was equally surprised to receive a one-page letter from the DWP offering to grant PIP at the standard rate for Daily Living (i.e. at least 8 points), and the enhanced rate for Mobility (i.e. at least 12 points), on condition I withdrew my appeal to the Tribunal. This ‘Lapse Appeal Offer Letter’ did not include any reasoning for this somewhat dramatic change of position (see image below), and when I telephoned the DWP caseworker (as requested), he was unable to offer any explanation for the (somewhat unexpected) Mobility element of the award, other than that it is “for health and safety reasons”. Given that, only a few weeks previously, the DWP had twice allocated Sam zero points for this activity, and that in 2016 (i.e. when not yet an adult) he had only been allocated 10 points for this activity, I concluded that this 12-point element of the offer was unsustainable, and that it was an attempt to induce me into withdrawing my appeal, only to have the award reviewed (and lowered) at some point in the future.

Furthermore, the DWP’s letter did not set out which descriptors (and points) had now been allocated to Sam for each Daily Living activity, and the caseworker was unable to answer my questions on this, as he said he no longer had the file. So, for all I knew, Sam might only have been allocated 8 points for Daily Living, the lower threshold for the standard rate, in which case that allocation might also be at risk from a future review. Accordingly, I decided to decline the ‘offer’ and continue with my appeal, in the hope that the Tribunal would clarify these matters and confirm the correct allocation of points for Daily Living and Mobility.

I was then further surprised, on 16 September, to receive a telephone call from a clearly more senior caseworker, who first bewildered me with a rapid-fire monologue about the various descriptors – most of which I had never seen or heard of before, of course – and then offered to grant Sam enhanced rate for both Daily Living and Mobility, if I withdrew the appeal. Still suspicious, and not having any of the past documents to hand (as the telephone call had come out of the blue), I asked the caseworker to set out the details of the offer – including the points allocated for each activity – in writing, so that I could consider the offer properly, together with the past documents.

At that point, the caseworker adopted a bullying tone, stating: “You have to make a decision now, as I have to tell the Tribunal what is happening”. Noting (with respect) that this was her problem, not mine, I repeated my request for written details of this latest assessment of Sam’s disabilities. The caseworker then said she would put the offer in writing.

A few days later, I received a one-page letter from the DWP, but this did not set out the details I had requested. It simply gave the letter of the descriptor now allocated to four activities (three under Daily Living, and one under Mobility), without stating the full text of those descriptors (see image, below). So, when the DWP caseworker telephoned me again, chasing a decision, I rejected her offer and decided to continue with the appeal to the Tribunal, despite her offer being the highest possible award (in monetary terms).

Yep, that’s the DWP’s explanation of its new decision, in its entirety.

Just two weeks later, however, I received the 145-page appeal ‘bundle’ from the DWP, with all the documentation relating to Sam’s PIP claim since 2016, including a detailed reasoning – spread over a full five pages – of the latest allocation of points in relation to the four activities above, totaling 14 points for Daily Living, and 12 points for Mobility (planning & following a journey). And this five-page explanation of the award was dated just the day after I had last spoken to the (more senior) DWP caseworker. Had she provided me with this written explanation at that time, I would have been happy to accept the offer and withdraw the appeal. So, I wrote to the Tribunal, setting this out.

However, it is not possible to withdraw an appeal once the bundle has been issued, it seems, so at the end of October I found myself nervously taking a seat before a judge and two lay panel members at a hearing centre in central London. I had prepared a short speech, explaining why I had insisted on coming this far despite the DWP having offered the highest award possible (in financial terms), but it was not needed. With the two lay members smiling and nodding in agreement, the (kindly) judge quickly explained that, having read all the papers, they had already decided to allow the appeal and confirm the DWP’s award of PIP at the enhanced rate for both Daily Living and Mobility. Barely 20 minutes after arriving at the hearing centre, I was back on the street, clutching a letter from the Tribunal confirming their ruling.

So, a happy ending, with Sam on a higher rate of PIP than I most likely would have settled for in March 2019, had it been offered at that point. And Sam now has a Tribunal-confirmed benchmark of descriptors and points to take into the next reassessment in five years’ time: 8 points for communicating verbally; 2 points for reading & understanding signs, symbols & words; 4 points for making budgeting decisions; and 12 points for planning & following a journey.

But this is no way to run a disability benefits system. I wonder how many claimants, and especially those lacking basic computer skills or confidence – both the Mandatory Reconsideration request and appeal to the Tribunal have to be completed online – drop out when faced with the kind of nil award given to Sam by the DWP in March, and confirmed at Mandatory Reconsideration in July. And what if I had accepted the DWP’s first telephone offer, in August? Sam would have lost out on more than £7,500 (the difference between standard and enhanced rate for Daily Living) over the next five years.

My advice to any PIP claimant, therefore, is twofold: firstly, get your hands on the full set of descriptors at the outset, so that you can arm yourself with your own assessment of which descriptors should be allocated to you; and secondly, be prepared to stand your ground, even if that means going all the way to the Tribunal. According to the latest official statistics, 75% of all PIP appeals are allowed by the Tribunal at a hearing, despite the apparent practice on the part of the DWP of making highly tempting ‘offers’ to those with strong appeals, in return for withdrawal of the appeal.

And that latter practice may well explain why, according to the DWP, “the proportion of [PIP] appeals lodged which lapsed [i.e. where DWP changed the decision after an appeal was lodged but before it was heard at Tribunal] has gradually increased since 2015/16 – from 4% in that year, to 17% in the latest two quarters (October 2018 to March 2019)”. In short, the Tribunal is allowing 75% of appeals, despite the DWP conceding almost one in five appeals before they get to a Tribunal hearing/ruling. Which means the real success rate on appeal is 79.2% (17 + (83 x 0.75)). Well played, DWP.

In 2017-18, according to the justice minister’s response in June 2019 to a Parliamentary Question by the Labour MP Rushanara Ali, the DWP funded 29% of the £1 million cost to HM Courts & Tribunals Service (HMCTS) of social security appeals (including PIP appeals). That contribution may well have gone up since, but if I was a senior official at HMCTS, or a minister in the Ministry of Justice, I’d be demanding a lot more.

Posted in Disability | Tagged , , | Leave a comment

Single Enforcement Body: Will the Tories boldly go where Labour and the Lib Dems failed to tread?

In July, the Government launched a formal, 12-week consultation on a proposal to establish a new Single Enforcement Body for employment rights. You might even have submitted a response (the consultation closed yesterday). And you probably concluded that it is just some dastardly Tory plan to slash the resources of the existing enforcement bodies. But how well do you know your (ancient) history?

Between 2000 and 2013, while working as employment policy officer at Citizens Advice, I researched and wrote a deadly boring series of policy reports arguing for a consolidation of the three main labour market enforcement bodies – the HMRC minimum wage enforcement team, the Employment Agency Standards Inspectorate (EASI), and the Gangmaster Licensing Authority (GLA) – into a single Fair Employment Agency fit for the 21st century, with the legal powers and resources to “root out the rogues” without imposing unnecessary regulatory burden on the great majority of compliant employers.

In the reports – and in any number of shorter articles, submissions to parliamentary committees, campaign leaflets, and conference presentations – I noted that, all too often, vulnerable workers are too fearful of further victimisation or dismissal to issue an employment tribunal claim, the principal means of enforcing most statutory workplace rights. And, as a result, rogue employers can profit from exploitation with near impunity. In 2005, for example, I noted that:

These workers tend to have a poor understanding of their statutory rights, and little if any awareness of how to assert or enforce them. Most are low skilled and low paid, and are employed in small, non-unionised workplaces. As a result, they are extremely vulnerable both to deliberate abuse by a ‘rogue’ or criminally exploitative employer, and to inadvertent non-compliance by an overstretched or inadequately informed employer.

Many small employers, especially those in low-profitability sectors of the economy, simply lack the means and resources – specialist, in-house human resources staff, for example – to keep fully abreast of their legal obligations to their workforce. Government-funded research by Kingston University confirms that most small employers are “not confident about their knowledge of individual employment rights”, due both to the common lack of “an in-house personnel function” and to the fact that many such employers deal with employment rights on “a need-to-know basis” only – that is, only when a particular situation arises. In short, the demands of running a small business in an increasingly competitive economic environment all too often lead to inadvertent non-compliance with statutory employment rights.

I suggested replacing this fragmented enforcement architecture with a “more joined-up system of advice, guidance and practical business support for small, low-profitability employers, and a more pro-active approach to compliance and, where necessary, enforcement” through a single enforcement body – or Fair Employment Agency.

From the outset, my proposal was firmly opposed by the Great Protector of workers’ rights, the TUC. Enforcing workers’ rights is a job for trade unions, not government, I was told. And union membership was now growing so rapidly that all workers would be unionised by the 26th century. Well, all workers in whatever remained of the public sector in the 26th century, anyway.

However, as few if any of the tens of thousands of vulnerable, exploited workers seeking employment-related advice from what were then known as Citizens Advice Bureaux would live to cheer the arrival of the TUC’s cavalry, I plodded on. Occasionally, I would win over a key public policy actor – the then Equal Opportunities Commission, the Institute for Public Policy Research, the trade union Unison – only to watch them get nobbled by the more influential (and much better resourced) brothers and sisters at the TUC.

Then, in early 2006, the Labour government became interested, announcing – in a DTI policy document, Protecting vulnerable workers, supporting good employers – that “we need to ensure that vulnerable workers are not mistreated but get the rights they are entitled to.” Policy officials at the DTI (or was it BERR by then?) made encouraging noises. And in 2007 I was invited to join a Vulnerable Worker Enforcement Forum, chaired by the employment relations minister. This included senior officials from the enforcement bodies, as well as officials from each of their sponsoring departments, and my friends and admirers at the TUC were there to ensure nothing significant ensued.

Sure enough, when the Forum concluded in August 2008, having decided to do little more than create a single telephone gateway to the various enforcement bodies – the Pay & Work Rights Helpline, since abandoned and rolled-up into the Acas Helpline – the then minister, Pat McFadden MP, told me that, while he agreed a single enforcement body/Fair Employment Agency was “a great idea”, he couldn’t be arsed with all the inter-departmental wrangling that would be involved in setting one up. (To be fair to Pat, what he actually said was “Gordon Brown won’t let me [because the TUC have told him not to], and I can’t spend another two years arguing with him.”)

Fast forward to 2011, when (I’m told) the Coalition’s first employment relations minister, Liberal Democrat MP Ed Davey, used to wave a crumpled copy of my last report for Citizens Advice on the issue at officials and demand to know “what we are doing about this”. ‘Not a lot’ seems to have been the answer, and in July 2012 a ministerial review of “the existing workplace rights compliance and enforcement arrangements, to establish the scope for streamlining them and making them more effective” quietly concluded that a single agency “would not provide significant benefits to workers.”

Noting that “the Government’s existing workplace rights compliance and enforcement arrangements are not those that someone starting now, with a blank sheet of paper, would devise”, and that “denial of paid holiday (or owed holiday pay) affects many more workers than denial of each of the rights that are covered by [the existing] enforcement bodies”, that 2011 report of mine waved by Ed Davey – Give us a break!, which was endorsed by the Child Poverty Action Group, the Fawcett Society, Gingerbread, Homeworkers Worldwide, the Law Centres Federation, Legal Action Group, Maternity Action, Oxfam, and Working Families – concluded that:

Through the application of a proactive, intelligence-led and proportionate approach to the enforcement of all those statutory workplace rights that are amenable to such an approach, including the right to paid holiday, a single Fair Employment Agency would simplify the enforcement framework and enhance the protection of vulnerable workers.

But it would also provide better value to the taxpayer, both through greater organisational efficiency and by reducing the number of potential employment tribunal claims. And, by targeting the rogues who profit from exploitation, it would help secure the fair competitive environment – or ‘level playing field’ – that is quite rightly sought by good employers, employment agencies and labour providers.

And, despite the negative outcome of the 2012 ministerial review, the idea clearly stuck around in someone’s head, because in October 2014, at the Liberal Democrat conference in Glasgow, then business secretary Vince Cable MP announced that his party’s manifesto for the 2015 general election would promise a new Workers’ Rights Agency, to “revamp efforts to enforce employment law and tackle the exploitation of workers” by combining the remits of “the minimum wage enforcement section of HMRC, the working time directive section at the Health & Safety Executive, the BIS Employment Agency Standards Inspectorate, and the GLA.” According to Cable, this “joined-up enforcement approach” would “ensure the minority of unscrupulous employers who break the law do not get away with undercutting other employers who play by the rules.” So, there would be significant benefits to workers after all.

In the event, Cable’s Workers’ Rights Agency didn’t make it into his party’s mahoosive, 160-page manifesto, though when asked about this his then junior minister, Jo Swinson, tweeted “the idea’s still there.” By which Ms Swinson appears to have meant ‘the idea’s now been stolen by the Tories.’ For, while the Tory election manifesto was as silent on the idea as those of the Liberal Democrats and Ed Miliband’s pathetically timid Labour, within a few weeks of his Nick Clegg-free return to Downing Street, in May 2015, David Cameron announced the creation of “a new enforcement agency that cracks down on the worst cases of exploitation.”

Evidently, not everyone in Cameron’s new government had got the memo, because all that came of this announcement was the creation – under Part 1 of the Immigration Act 2015 of all things – of “a new statutory Director of Labour Market Enforcement, responsible for providing a central hub of intelligence and facilitating the flexible allocation of resources” between “enforcement of the national minimum wage by HMRC, the regulation of employment agencies by [EASI] and the licensing of legitimate labour providers by the GLA.” And, in January 2017, Professor Sir David Metcalf, formerly chair of the Migration Advisory Committee, was named as the first holder of the post, charged with drawing up “an annual strategy targeting sectors and regions which are vulnerable to unscrupulous employment practices”.

Sir David published his first annual strategy in May 2018. This noted that

Employment rights are now predominantly enforced on an individual rather than a collective basis, following the decline in union membership and collective bargaining coverage. Yet the evidence suggests that awareness levels amongst workers and employers of rights, responsibilities and public enforcement are relatively low. The lack of knowledge and confidence to report issues, and consequently the vulnerability of workers, is not surprising given the complexity of different rights and employment statuses, combined with a fragmented enforcement landscape.

Sound familiar? Whatever, by this time, Theresa May had replaced the hapless David Cameron as prime minister, and in September 2016 had recruited the former head of Tony Blair’s policy unit, Matthew Taylor, to lead a review of workers’ rights and “modern working practices”. And, in July 2017, the report of the Taylor Review of Modern Working Practices concluded that “HMRC should take responsibility for enforcing the basic set of core pay rights that apply to all workers – NMW, sick pay and holiday pay – for the lowest paid workers”. And “going forward, the Government should consider whether other pay-based protections, such as protection against unlawful deduction from salary [i.e. ‘wage theft’ by employers], are also state enforced for the lowest paid workers”.

In December 2017, a research report by Middlesex University Business School, Unpaid Britain: wage default in the British labour market, concluded that at least two million workers experience non-payment of wages or holiday pay each year, and that those unpaid wages amount to at least £1.3 billion, and the unpaid holiday pay to at least £1.8 billion.

So far, so good, and in December 2018, in its response to the Taylor Review, the Government set out its “intention to enforce a wider range of basic employment rights on behalf of the most vulnerable workers”:

The government accepts the case for the state taking responsibility for enforcing [sick pay and holiday pay, as well as the NMW] on behalf of the most vulnerable workers. We will consult to gather detailed evidence of the scale and distribution of non-compliance with holiday pay and statutory sick pay obligations, and then evaluate the best way to target enforcement activity, remaining mindful of the need to minimise burdens on compliant businesses and ensure that enforcement activity is cost effective.

And, true to its word (for once), in July 2019 – just days before Theresa May was forced from office by her miserable but perhaps inevitable failure to ‘sort’ Brexit – the Government launched a formal, 12-week consultation on a proposal to establish “a new, single enforcement body” and whether this could deliver:

      • extended state enforcement, delivering our commitments to enforce holiday pay for vulnerable workers and regulate umbrella companies operating in the agency worker market;
      • a strong, recognisable single brand so individuals know where to go for help. In a single organisation we could improve the user journey, making it easier for individuals to raise a complaint and to tackle cases that might currently be handled by different organisations;
      • better support for businesses to comply with the rules, including coordinated guidance and communications campaigns, and a more easily navigable and proportionate approach to enforcement;
      • coordinated enforcement action, with new powers and sanctions to tackle the spectrum of non-compliance, from minor breaches to forced labour and increased focus on ‘high harm’ cases to disrupt serious, repeated offending; and
      • pooled intelligence and more flexible resourcing, enabling greater sharing of intelligence and national tasking and coordination of operational activity targeted at tackling serious breaches.

Launching the consultation, then business secretary Greg Clark (since departed) stated:

We have a labour market that we can be proud of with more people in work than ever before. But it’s right that hard-working people see their rights upgraded and are protected from exploitative practices, whilst ensuring we create a level playing field for the vast majority of businesses who comply with employment laws.

A new Single Labour Market Enforcement body will bring together our different enforcement partners, putting all our expertise in one dedicated place, better protecting workers and enforcing their rights now and into the future.

Sound familiar? And, responding to the initiative, Peter Cheese, chief executive of the CIPD, said:

The creation of a single enforcement body is an important step towards achieving better working lives for the UK’s most vulnerable workers. We welcome the government’s proposals and the recognition that tougher enforcement needs to go hand in hand with better support for businesses, many of which can fall foul of employment legislation unwittingly.

However, not everyone is being so welcoming. While I’ve yet to see their response, I understand that my friends at the TUC are no more enlightened than they were 15 years ago, and are opposing the proposal. And, while agreeing that “currently in the UK, we have multiple enforcement bodies, each with differing names, remits, access points, etc., [which] creates a complex, fragmented and confusing picture for workers seeking support for abuses and for employers trying to understand their responsibilities”, FLEX (Focus on Labour Exploitation) has given the proposal only conditional and somewhat unenthusiastic support.

Sure, a single enforcement body wouldn’t be a panacea. Nothing would. But it’s clear from the (long) history above that the current consultation isn’t some dastardly wheeze conjured up by the latest set of Tory ministers and their advisers to cut resources. If ministers wanted to cut the resources, powers or remit of the existing enforcement bodies, they wouldn’t need to pump new life into a 20-year-old (progressive) idea as cover for doing so. They’d just fucking do it.

No, as FLEX do at least note, “introducing a new body marks an opportunity to change the fundamentals of UK labour inspection”. Because, apart from very welcome increases (against the run of austerity) in the budget of the NMW enforcement team in particular since 2013 – I challenge you to show me any other area of (worthwhile) public expenditure that has increased by more than 200% since 2010 – the UK’s complex and fragmented enforcement architecture has barely changed in 20 years, despite enormous changes in the labour market, such as the growth of zero-hours contracts and bogus self-employment.

So, I’m not gonna hold my breath. Apart from anything else, it remains to be seen whether Boris Johnson will be as receptive and supportive as Theresa May seemingly was on this issue. And the clusterfuck of Brexit isn’t going to help. But I am encouraged by the fact that, at the same time it launched the consultation on a single enforcement body that closed yesterday, the Government appointed Matthew Taylor as interim Director of Labour Market Enforcement (Sir David Metcalf having retired in June). We may not be there yet, but, as Sam Cooke sang,

It’s been a long, long time coming,
But I know a change gonna come,
Oh, yes it will.

Update, 1 December: That a change is gonna come now seems possible, whoever wins the general election on 12 December. For – in stark contrast to the 2015 general election – each of the Conservative, Labour and Liberal Democrats manifestos pledges the establishment of a new enforcement body. The Conservative manifesto states: “We have already taken forward a number of recommendations from the Taylor Review” and “we will create a single enforcement body and crack down on any employer abusing employment law”.

Meanwhile, Labour’s manifesto states: “Labour will introduce a new, unified Workers’ Protection Agency to enforce workplace rights, including the Real Living Wage. It will be given extensive powers to inspect workplaces and bring prosecutions and civil proceedings on workers’ behalf.” And the Liberal Democrats’ manifesto states: “We will establish a powerful new Worker Protection Enforcement Authority to protect those in precarious work”.

So, Boris Johnson says ‘body’, while Jeremy Corbyn says ‘agency’ and Jo Swinson says ‘authority’. But they’re all talking about the same thing.

Posted in Justice, Workers' rights | Tagged , , , , | 1 Comment

Brexit: Till we get the healing done

So, as Jim Pickard of the Financial Times noted on Twitter yesterday, Jeremy Corbyn “has worked out what would heal the divided nation, and it’s a [second] referendum on EU membership”.

Yep, in his speech to the Labour Party conference in Brighton, Corbyn said:

Within three months of coming to power a Labour government will secure a sensible deal based on the terms we have long advocated and discussed with the EU, trade unions and businesses: a new customs union, a close single market relationship, and guarantees of rights and protections. And, within six months of being elected, we will put that deal to a public vote alongside ‘remain’. And as a Labour prime minister I pledge to carry out whatever the people decide.

Wow Jezza! Come on, leave me breathless!

Except … that breathless schedule begs at least three questions: Is six months really long enough to legislate for, and hold, a ten-week referendum campaign? Even if it is, what does that imply in terms of the extension of the Article 50 period that would need to be requested from the EU27 at the outset? And – given the answers to those two questions – how might the package go down on the doorstep in the general election campaign that Jezza hopes will climax in him picking up the keys to 10 Downing Street? (Or does he?)

And that third question matters. Because, if Jezza can’t take possession of those keys to 10 Downing Street, there ain’t gonna be any second referendum, period. Yep, that’s the uncomfortable position into which the People’s Vote campaign – masterminded on Monday mornings by a manel of closet Corbynistas such as Alastair Campbell, Peter Mandelson and Tom Baldwin – has got itself: unless their suddenly beloved Jezza triumphs in the coming general election, they’re fucked.

So, assuming that general election happens in late November or early December, could a newly-elected Labour government really legislate for, and hold, a People’s Vote by late May or early June next year? Well, some time ago, the much-loved Institute for Government set out how, even with a fair bit of (not terribly democratic) corner-cutting, and assuming the legislation sails through each house of Parliament unopposed in a matter of days, it would take a minimum of 21 weeks to do that.

Which means a second referendum in late May or June is just about doable, were the legislation to be introduced within days of Labour ministers walking into their departments, and then sail through Parliamant unopposed. Shall I say that again? Were the legislation to sail through Parliament unopposed. Good luck with that.

However, unless that amazing, unicorn-free new ‘deal’ with the EU is successfully negotiated within days, introducing the referendum legislation so soon would require the wording of the referendum question to be decided, and the Electoral Commission to start testing that wording (a process that accounts for the first eight of the Institute for Government’s 21 weeks), before anyone can say with any certainty what that deal actually looks like – or, at least, how and why it is so much better than the ‘deal’ negotiated by Theresa May and Ollie Robbins but rejected three times by MPs. I suspect the Electoral Commission (and many others) would very strongly urge ministers to conclude their negotiation with the EU27 before introducing their referendum Bill.

Which is not necessarily a big problem. In reality, a new Labour government would not be negotiating ‘a new deal’. It would simply be negotiating some changes to the non-binding Political Declaration that comes free with the Withdrawal Agreement negotiated by Theresa May and Ollie Robbins. The hated Withdrawal Agreement itself would not change. In short, the most a new Labour Government could hope to conjure up is May’s Blindfold Brexit deal with some ‘customs union’ ribbons tied on.

So, it might well not take three months to complete that ‘negotiation’, as Jezza allows for in his breathless schedule. Tom Kibasi of the IPPR thinks it could all be done in an afternoon. But it seems more realistic to assume – for the purposes of agreeing that Article 50 extension – that it would take at least a few weeks to complete the process of negotiating a revision of the Political Declaration text, dotting the ‘i’s and crossing the ‘t’s, and getting sign off from the European Parliament. What, you forgot that stage?

That means we are looking at a second referendum in late June or early July, at the very earliest. If the legislation sails through Parliament unopposed – got that yet? But the shiny new Labour government would first need to request, and get the EU27’s agreement to, an Article 50 extension some way beyond the date of polling day. Because, were the referendum to result in another vote to ‘leave’, the (secretly pleased) prime minister and his colleagues would need some time to make the necessary final preparations for exiting the EU.

With the holiday season probably not being the best time to have to make those final preparations, and allowing a bit of leeway in case, you know, the legislation does not sail through each house of Parliament unopposed in a matter of days, we are probably looking at the brand new Labour government having to request – or the less starry-eyed EU27 insisting on – a one-off extension to the end of 2020. The EU27 would not want Jezza coming back every few weeks to ask for yet another short extension because, let’s say, the referendum Bill isn’t sailing through Parliament unopposed, or Nigel Farage has been granted leave by the High Court to bring a judicial review of the referendum question.

Sure, Corbyn & Co can (and no doubt will) continue to claim they would have it all wrapped up in six months. But I rather suspect that, in the heat of a general election campaign, that flimsy and unrealistically optimistic claim will rapidly fall apart under the intensified scrutiny of journalists, and of voters heartily sick of Brexit.

Which brings us to the last of my three questions. Not even the most ardent remainer – I am one myself – actually wants a second referendum. The PVers just see it as ‘the best, and most democratic way’ of resolving the grisly Brexit impasse (which, let’s not forget, they helped to prolong by deliberately undermining and then voting down every possible compromise form of Brexit, from Norway Plus to May’s Withdrawal Agreement).

I happen not to agree with them on that – I think a second referendum would prove to be a ghastly repeat of the horrible mistake of 2016. But, more importantly, I suspect the combined general election offer of a further delay – sorry, Article 50 extension – to the end of 2020, and the unalloyed joy of a second, 10-week referendum campaign, will simply bomb on the doorstep. And, if it does, there will be no Labour-led government (or GNU), and no second referendum. It’s almost enough to make me vote Lib Dem. Almost.

As Van Morrison sang in “Till we get the healing done”, sometimes you’ve just got to sit down and cry.

Posted in Brexit | Tagged , , | Leave a comment