Your Thoughts: Workers’ Rights Promises Achievable?

UK Prime Minister Theresa May has promised, in the run up to the snap general election next month, that by a conservative government workers’ rights would see a huge expansion, including a statutory right to leave for a relative’s care, and to leave for a parent whose child had passed.

Also included in the promises are rights in relation to the gig economy, training, pension protection, a potential minimum wage rise, a guarantee that European worker rights would be sustained post-Brexit, and more.

Here below are Your Thoughts on the news, from reputable sources who voiced their comments to Lawyer Monthly.

Leon Deakin, Partner in the Employment team at Coffin Mew Solicitors:

The Conservative manifesto announcement contains some attractive headlines for workers but an examination of the detail leaves many questions to be answered.

For example, the statutory right to take up to a year off to care for a disabled dependant before being able to return to a guaranteed role does, in theory, extend existing rights and create some flexibility for the vast number of workers who have caring responsibilities. However, the time taken will be unpaid and therefore, I suspect the take up will not be significant and certainly not likely to last for extended periods of time as the norm.

The proposed statutory right to up to 2 weeks’ paid leave upon child bereavement is also difficult to argue with in terms of sentiment and may protect those with unsympathetic or inflexible bosses. However, my experience of the approach by employers in the most extreme circumstances such as these already tends towards generosity and understanding.

Similarly, announcing workers will not lose any protections flowing from EU law is not necessarily the commitment it appears to be. Put simply, the UK has, in many cases, given workers greater rights than it is obliged to so the chances of ever seeking to remove those due to Brexit was slim. Indeed, I suspect it is some of the decisions of the ECJ which are more likely to be the targets of revision rather than the ‘laws’ and the commitment today is vague at best on whether the guarantee includes these or not.

For these reasons, suggestions that this is the greatest expansion of workers’ rights by a Conservative Government ring slightly hollow.

Tim Goodwin, Associate, Winckworth Sherwood:

It was David Cameron who scaled back employment rights radically, most notably making it harder to bring unfair dismissal claims and introducing huge Tribunal fees – in most cases up to £1,200 – which has seen claims fall by up to 70%. Unless action is taken to make bringing a claim more realistic, I can’t see that some of these new rights, such as unpaid leave to care for a relative, will add much because the reality is that, unless workers can enforce their rights, they will not be observed.

It’s heartening to see that workers’ rights we have from EU law will be preserved post-Brexit. Many of the leading Brexit voices – including some that are in the cabinet now – had argued for Brexit on the basis of scrapping EU employment regulations. The key will be whether, once we see how Brexit unfolds, this promise holds up in the long term.

The recent revelation by the Prime Minister that she intends to protect the rights of workers in the “gig” economy has suddenly seen employment status come to the fore in this General Election.

Robert Holland, Employment Partner, Balfour+Manson:

What has traditionally been the preserve of Labour policy making has seen a somewhat startling move by the Conservative Party to claim the mantle of protector of the rights of the million or so workers in the UK who are on irregular, temporary or freelance contracts.

Along with high profile cases such as Pimlico, and the GMB backed Uber case, where drivers won entitlement to holiday pay, it would seem that the courts are also backing the rights of those who don’t work in the traditional manner.

Yet for many “Zero hours ” contractors as the media like to label them, a court win or Political promise may seem small comfort. Without union backing or funding, they are reluctant to challenge multinational corporates who declare that no holiday pay is due, and feel helpless when their right to paid leave is denied.

But here is the rub. Unlike “gig” workers, if those on a zero-hours contract accept an assignment, for however long, they are automatically due holiday pay for the duration of that contract.
It is still a common misconception, perhaps propagated by large corporates, that the right to holiday pay needs to be won.

For millions, they have it already in the nature of their contract.  Indeed, following Bear Scotland v Fulton UK EAT 47/13, the amount of pay should include variables like overtime and commission.
It seems that despite the spotlight, a certain ambiguity still prevails. It is time that the rights of our temporary workers are spelled out clearly and not swallowed up by political sound bites and forgotten once an election is over.

Suzanne Horne, Head of the international employment practice, Paul Hastings:

The latest set of pledges concerning workers’ rights, whilst eye-catching and media-friendly, will only result in more red-tape for employers. For SME’s in particular, more employment rights means more workforce planning at a time when employers are already juggling the challenges that come from existing statutory rights.

The keystone pledge of a statutory right to a year’s unpaid leave to care for relatives could also be especially taxing. Employers already accommodate maternity, paternity, parental and adoption leaves, and soon will be required to accommodate grandparents on leave too, so it’s difficult to see how they can find more flexibility to cover further long leaves of absence – no matter how compelling.

Even from an employee perspective, a right to unpaid leave in these circumstances can only raise further questions, such as how carers will be able to afford the cost of living, and whether the government will have to extend the welfare system to help off-set this lack of income.

There is also a tendency to brush over the extent of worker’s rights currently enjoyed in the UK. For example, workers already have the right to time off for dependants – including for bereavement – and for training as well. Moreover, employment tribunals have already held that those employed in the ‘gig’ economy’ are entitled to worker protections.

Ashley Winton, Partner, Paul Hastings:

At the back of the new Conservative Manifesto, there is promise of a new digital charter that “balances freedom with protection for users, and offers opportunities alongside obligations for businesses and platforms”, alongside a new Data Use and Ethics Commission which will advise regulators, including the ICO, and Parliament on the nature of data use.

We are due a fundamental revision of data protection law in May 2018 with the General Data Protection Regulation (GDPR), and many commentators had assumed that upon Brexit the Great Repeal Bill would contain a cut and paste of the GDPR into English law so that we could maintain the same standards of data protection with our friends in on the continent. But is this what is being offered here? The Conservatives are offering to give people new rights to ensure they are in control of their own data, including the ability to require major social media platforms to delete information held about them at the age of 18, the ability to access and export personal data and an expectation that personal data held should be stored in a secure way.

These rights look more like the rights we currently have under UK data protection law rather than the more expansive rights under the GDPR, and the Data Use and Ethics Commission looks like a body that is taking over some of the future function of the European Data Protection Board. If the UK does not maintain the same standards of data protection as prescribed by the GDPR, the transfer of personal data between continental Europe and the UK will become more difficult, and this could have implications upon businesses and their service providers who need a free flow of personal data across Europe. As to the future of the GDPR in the UK, it looks like we will see more cut and less paste.

We would also love to hear more of Your Thoughts on this, so feel free to comment below and tell us what you think!