Some large retail household names have attracted criticism recently for reports and perceptions on working conditions, with concerns expressed by unions that workers are being routinely exploited and mistreated. These criticisms have extended to cover a broad remit of issues with reports of long hours, low pay, high performance targets, inadequate rest breaks, holidays and sick pay, and cultures where sexual harassment is commonplace. When considering how legislative change could be used effectively to address such a broad spectrum of issues, a range of changes would need to be considered.
Current UK legislation already provides some important protection to low-paid workers, with paid holidays exceeding the minimum imposed by the EU, the national minimum wage set at £8.21 for over-25s, working time provisions ensuing minimum work breaks, daily and weekly rest periods, wages protection and TUPE rights. When tribunal fees were introduced in 2013, the immediate and drastic decline in claims stimulated concerns that this prevented access to justice for low-paid workers as the fees were not proportionate to lower-level claims such as recovering unpaid wages. The fees were abolished in 2017, which resulted in a sharp increase in claims and an improvement for low-paid workers wanting to hold their employer to account.
Low-paid workers’ rights have already been on the government agenda for some time and the Taylor review concluded in July 2017 by making several recommendations focused on matters such as employee status, protection for zero-hours workers, increased consultation rights, holidays and sick pay. The report also recognised the changing modern working environment created by the gig economy and increased flexibility.
In spite of the report being well received and the government committing to action on the majority of the recommendations, not much of note has happened since. While technology and changing attitudes now allow us to work more flexibly in the modern workplace, this transition has resulted in reported cases of employee exploitation, with some high-profile gig economy cases seeking to enforce basic rights such as holiday pay rights (Uber and Pimlico Plumbers).
In spite of the legislative protection that is already there, and the removal of tribunal fees, access to justice remains a real challenge for the low-paid worker. It is a lengthy process, good legal advice is expensive (prohibitively so) and the awards are often low in comparison to the time, cost and effort needed to see a case through. Investment in improving community-based legal advice such as law centres and Citizens Advice bureaux would certainly assist. The government should do more to make the process faster, more accessible and more worthwhile to low-paid workers.
In terms of further legislative change, much of the framework is already there but the penalties for employers are often lacking. For example, there are provisions to protect part-time and fixed-term workers but the sanctions under those regulations are so limited that claims are not common as they are just not worthwhile. Mistreatment of part-time and fixed-term workers continues and has probably now been superseded by the added vulnerable category of the zero-hours worker. Strengthening sanctions against employers and even considering introducing some penal element to awards may better support the process of enforcement and ensure employers are motivated to comply.
Perhaps the most obvious legislative change to consider is the qualifying period for unfair dismissal, as employees need two years’ service to qualify for protection. This means workers with less than two years’ service can effectively be hired and fired at will (provided there are no discrimination or whistleblowing issues) so reducing this period would improve protection for shorter-serving employees, meaning they would at least have access to basic unfair dismissal rights and this would be a straightforward means to improving protection for workers in a practical way.
Vanessa James is a partner at Ashfords