“Limp response to a limp report” Thompsons’ Solicitors on Taylor Review
Last month the government published ‘Good Work’, its grandly-titled response to the Taylor Review of Modern Working Practices. It is a limp response to a limp report. It contains very little in the way of concrete plans to address the issues of insecurity and exploitation faced by people in insecure jobs.
The response was accompanied by four consultation papers on employment status, on enforcement of employment rights, on transparency and on agency workers. This reflects the fact that, on most of Taylor’ s 53 recommendations, the government has agreed to do no more than consult on possible changes. The same is true of its response to the joint recommendations from the House of Commons committees on Work & Pensions and Business, Energy & Industrial Strategy.
The crux is the definition of who is an employee or worker (and who is neither) and to what rights should each category be entitled.
The government merely proposes to consult on whether to retain the current three-tier approach and also to consult on the detailed test to determine who is a worker. It does not even reject the absurd suggestion by Taylor that workers should be re-named “independent contractors”.
In taking this approach, the government does not tackle the problems with the current definitions. We repeat our call that the government should adopt a straightforward definition of worker which covers all those who provide services personally, unless they do so as part of a business or profession on their own account, preventing employers getting round this by using substitution clauses. This will also place the onus on the employer to prove that a person is not a worker.
We also call for existing employment rights to be extended to all workers, not just employees. We welcome that the government has now agreed, as we have long argued, that the right to a written statement of particulars should be extended to all workers by making use of the procedure in section 23 of the Employment Relations Act 1999. We also welcome the confirmation that this essential information should be provided by day one of employment, not delayed until two months. This right should be extend to all workers, temporary or permanent, and include more information, including on guaranteed hours.
The government should go further and commit to adopt the proposed EU Working Conditions Directive, put forward by the European Commission in December 2017. This proposes a simple and comprehensive definition of worker, the right to a written statement by day one for all workers. This includes giving information for those on variable work schedules, including zero-hours and on-call workers, which require details to be given of guaranteed hours, hours and days within which the worker may be required to work and the minimum notice that the worker must receive for each shift.
This is backed up by provisions to ensure a worker only be required to work within the hours and days specified in the statement and when they have been given reasonable notice of the work assignment. The proposed Directive also includes an entitlement to request more predictable and secure working conditions which is stronger than that on which the government is proposing to consult.
Other areas on which the government is consulting are easing the provisions on break in service so that it is easier for an employee to show continuity of service; reducing the threshold for workers to request information and consultation structures; changes on agency worker enforcement; enforcement of Employment Tribunal awards and of holiday and sick pay.
It is astonishing the government is still contemplating reintroducing Employment Tribunal fees. It says, in Good Work that it is “considering very carefully” the Supreme Court ruling (it has had plenty of time to do so since July 2017) and that “should the government decide to reintroduce fees in the employment tribunal system” it would consider whether to extend those to cases to determine employee or worker status.
This is extraordinary. The Supreme Court decision was damning. The government should accept once and for all that fees are a deterrent to vulnerable workers exercising their rights and should commit that fees will not be introduced. The government’s failure to do so shows that it has no real commitment to the rights or well-being of workers.
The government response and the consultation documents show that, once again, this weak government will do no more than push difficult issues into the long-grass with endless consultations and reviews, without tackling the fundamental unfairness and imbalance afflicting so many workers across the UK.
• Stephen Cavalier is chief executive of Thompsons Solicitors
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