Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Why are employment rights important?

20 January 2015

1. Some people are treated much worse than you generally imagine

The nastiest case of pregnancy discrimination I’ve ever dealt with was Miles v Gilbank. There was a long campaign of harassment and bullying, some of which was horrific. From the Court of Appeal judgment, ¶15:

The tribunal also found a number of acts of discrimination were committed by other managers. For instance, on 3 April 2004 when Ms Gilbank suffered bleeding which she took to be a symptom of miscarriage, Michelle, another manager, told her to go and deal with a client and see if the bleeding occurred later. Ms Gilbank was upset at this and concerned about the loss of the child. She was permitted to leave the salon when another team member intervened. Ms Gilbank was subsequently in hospital for seven hours.

Lady Justice Arden’s language is dry; perhaps the only appropriate approach for a court dealing with such matters. But imagine, if you can, the distress a pregnant women would feel if she began bleeding in a way that suggested she was miscarrying. Imagine being told by your manager that, rather than seeking the urgent medical attention you need, you should just get back to work.

Unfortunately, while Ms Gilbank’s case was unusually, that sort of bad behaviour by employers does happen. A quick glance at Harvey’s section on discrimination awards reveals similar cases. A women who was locked in a container for 15 minutes, in addition to being grabbed and touched in her genital area by her manager.1 A women who was called ‘nigger’ and ‘half-caste’, while BNP leaflets were left on her desk (she was then accused of lying about her racial identity and making herself ‘more black’ for the tribunal.2 A domestic worker who was made to sleep under the dining room table and given limited food.3 A man with mental impairments was called a ‘cabbage’ and an ‘idiot’ and whose manager threatened to ‘smash your face in’.4 The personally assistant whose manager, over 19 months, called her a ‘slag’, ‘slut’ and ‘rug muncher’; the bullying led to the breakdown of her civil partnership.5

These are discrimination claims, but equally appalling behaviour occurs in other contexts. Some employers do bully their employees, even to the point of threats and actual physical violence. Some refuse to pay them, if they think they can get away with it. Some sack them after years of loyal service, with no justification.

Employees who are treated in a way that no reasonable person would think acceptable should be able to get some redress. Until a better system comes along, that’s the employment tribunal.

2. People do have a right to their rights

Most employment tribunal litigation, however, does not involve anything quite that bad. It’s underpaid wages, it’s failure to give holiday pay, it’s dismissals that might be unfair, but where you think the employer has made mistakes, rather than just being a thoroughly nasty piece of work. Or even cases where you advise your client that, although they have a reasonable case, so does the employer, and things might go either way.

This doesn’t make them less important to the people involved.

If you are entitled to be paid £6.50 an hour, and your employer pays you £6.40, then you are entitled to do something about it.

And, if, on being dismissed, you are entitled to four weeks notice, you are entitled to insist on it – and take legal action if they refuse. It might be the difference between paying your mortgage or feeding your family properly.

The average award for unfair dismissal is £5,016. That’s not riches. But it’s a significant sum when you were dismissed from an average waged job and you’ve been unemployed for six months.

Bog standard cases, bread and butter cases, call them what you will. They involve real people and they matter. If we say ‘It doesn’t really matter if someone can go to tribunal to get their holiday pay’ then what we’re saying is ‘It doesn’t matter if they get paid their holiday pay’. And I fear that what we’re really saying is ‘That person isn’t important’. I think they are.

3. When you have rights, you're less likely to need them

Just over 100,000 people brought an employment tribunal case last year. Before fees, it was around 200,000 people annually. In one sense, that’s quite a lot, the employment tribunal remains one of the larger tribunal jurisdictions.

In terms of the total people employed in the UK though, it’s hardly any. The Office for National Statistics estimates that there are about 30.8 million people working in the UK.6

But the 30.7 million workers a year who don’t litigate in the tribunal aren’t existing in a vacuum from those who do. They exist in a complicated web of interplaying factors, one of which is the ability of people to enforce their rights in the employment tribunal.

Readily enforceable employment rights effect the behaviour of employers. At the simplest level there isn’t much point in underpaying your staff if you know that they will only go to tribunal and force you to pay up. So, when workers can enforce their rights, employers are encouraged to respect them. When they can’t, there is an incentive on employers to behave badly.

That doesn’t mean that all employers are slavering beasts, held back from abusing their employees only by the existence of the tribunal. Some employers behave very badly, regardless of the tribunal. Many would treat their employee well regardless – not least because many employers realise that looking after their employees is just good business sense.

But there are a lot of pressures on employers and managers. If there are no checks in place, those pressures will push many into cutting corners with their employees.

More than that, capitalism is, by its nature, red in tooth and claw. There is an inherently destructive aspect in it, whereby the fast outpace and ultimately destroy the slow.

There are many advantages to this system (and it seems to be better than anything else humanity has tried so far). But it will do despicable things in the pursuit of profit if we let it. Not because most capitalists are evil, but because a few of them are. And, if it’s more profitable to act badly, they will – and that will drive out people acting better. Not to mention that humanity has a historically well proven ability to convince ourselves that the most despicable actions are morally correct – especially if they turn a profit.

So we need enforceable employment rights to provide a commonly agreed floor on employers behaviour, rather than get trapped in a race to the bottom.

There are many other reasons that employment rights are important. But those are my top three.

  1. A v B Ltd & C (Ashford) (Case No 1103173/2009) (9 June 2010, unreported)

  2. Taylor v Benham (General Engineering) Ltd and others (Stratford) (Case No 3202951/06) (26 July 2007, unreported)

  3. N.A.W.A. v Yasuf and Samalan (London Central) (Case No 2203852/2009 & 2204477/2009) (18 October 2010, unreported)

  4. Desousa v Barrow (Southampton) (Case No 3103029/08) (1 April 2009, unreported)

  5. Kirby v (1) Quality Electrical Supplies and Technology Ltd (2) Ashton (3) Briggs (4) Davies (Manchester) (Case No 2412616/2009) (28 June 2011, unreported)

  6. Labour Market Statistics, December 2014

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