Inedible: The Consequences of 'Half-Baked' Ideas

As I write, we have just seen the end of the annual season of conferences organised by the major political parties.

Such events always throw up proposals worthy of consideration, even if they don't all subsequently find their way onto the Statute Book.

Given that the Conservative Party's yearly get-together took place less than a month after Liz Truss replaced Boris Johnson as Prime Minister, it wasn't surprising that commentators spent their time searching for clues as to the priorities for her administration.

Some of the more radical ideas, as it turned out, were not even aired on the conference floor but still generated considerable debate.

They have included plans for a dramatic reform of employment laws advanced by the Business Secretary, Jacob Rees-Mogg.

Among his suggestions was one to repeal of the working time directive and the introduction of "no-fault" dismissals for people earning more than £50,000 a year.

Even if the Financial Times reported an energetic rejection of the proposals by Downing Street - with one source close to the new Prime Minister describing them as "half-baked" (https://on.ft.com/3C5BHZB) - they understandably drew considerable attention and not a little concern outside of Westminister.

Any uncertainty was perhaps exacerbated by Liz Truss's conference pledge to remove "EU red tape" by the end of 2023 (https://www.conservatives.com/news/2022/prime-minister-liz-truss-s-speech-to-conservative-party-conference-2022).

If that bonfire of remaining European regulation was indeed to bring about changes of the sort mooted by her Business Secretary, it would produce great consequences for employers and employees alike.

It's perhaps worth reflecting at this point where our employment law comes from.

As well as legislation enacted by the parliament in London and case law arising from domestic court judgements, many important rules have come about in recent decades as a result of directives introduced by the EU and European courts.

Arguably the most significant item was the EU's Working Time Directive which was adopted in November 1993 (https://researchbriefings.files.parliament.uk/documents/RP96-106/RP96-106.pdf).

The directive enshrined such fundamental employee rights as a maximum 48-hour working week, entitlements to paid holidays and rest breaks.

The Transfer of Undertakings (Protection of Employment) Regulations - known as TUPE, for short - which ensures a continuation of the rights of staff whose businesses are taken over or whose roles are outsourced, also has its roots in EU law.

These are now regarded as essential and extremely positive planks of employment law.

I should point out that there were not introduced without a scrap. Almost in a parallel of Jacob Rees-Mogg's objections to the directive, the then Government of John Major challenged the measures in the European Court of Justice - and ultimately lost (https://researchbriefings.files.parliament.uk/documents/RP96-106/RP96-106.pdf).

When the directive took effect in UK as the Working Time Regulations (1998), they amounted to some notable provisions for workers.

Their removal would, in my opinion, be compounded by making 'no-fault' dismissal possible for those earning more than £50,000.

Bosses are required to give staff a reason for an intended dismissal if they have been employed for more than two years. They can't simply suggest that someone's face no longer fits.

The Business Secretary's proposal would remove that protection for someone on what nowadays might be regarded as a middle-manager salary in many businesses, even if it is almost twice the average wage in the UK (https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/earningsandworkinghours/adhocs/12439annualsurveyofhoursandearningsasheestimatesofthenumberandproportionofemployeejobswithhourlypaybelowthelivingwagebyworkgeographylocalauthorityandparliamentaryconstituencyukapril2019andapril2020).

In that sense, it is a notion which has already been construed as further undermining the rights of all those who aren't in the top bracket of earners in the UK.

No matter how much the latest controversial suggestions have caused a stir, there are those who had already forecast a possible revision of employment law.

This year's Queen's Speech - which sets out the ruling Government's intended legislative agenda - was delivered in May by the new King.

Conspicuous by its absence from the timetable once more was an employment bill, which had been trailed three years before and aimed to enhance worker rights with protections for pregnant employees, carers' leave and flexible working (https://lordslibrary.parliament.uk/queens-speech-2022-economic-affairs-and-business/).

Regardless of how the Cabinet tensions between Mr Rees-Mogg and the Prime Minister resolve themselves, it's worth making clear that employers who might welcome change shouldn't jump the gun.

Any new laws might ultimately be repealed should there be a change in the party in power.

In addition, even if the 48-hour working week is scrapped, laws preventing workplace discrimination will survive.

There is another, far more commercial compelling reason for not rushing to embrace any new regulations which undermine staff protections in law.

The recruitment and retention of talented staff remains a critical issue for many companies.

In such an employment market, which employer wants to make themselves a less attractive than their competitors?