Category Archives: Employment Relations

The key to a solicitor’s career success? Creating connections

bty
By Juliet Kele, Doctoral Student and Teaching Fellow, WERD

Employment lawyers regularly counsel and advise both employers and employees on a diverse matter of workplace related issues, but do they ever reflect upon the employment relationship, and inclusive working practices within their own firms? Historically, the legal profession has been perceived as an ‘old boys club’ – and can still be argued as such in modern times. The senior positions in most law firms are filled with middle-aged, white men (‘male, pale and stale’). These issues have animated my research in aiming to discover whether a smaller law firm size has a favourable impact upon the career progression of female and ethnic-minority lawyers.

The findings of this research reveal that while smaller law firms were thought to have a more supportive culture than larger firms – in terms of implementing flexible-working initiatives and being ‘family-friendly’ employers – lawyers with high levels of social capital were looked upon more favourably at each career progression round.

Using interviews conducted within Yorkshire small and medium-sized legal practices (firms with fewer than 250 employees), my research considers how career progression is experienced by a diverse range of employees and the factors perceived to influence career progression in this context. My analysis shows that a crucial factor perceived as having a positive effect upon career progression – regardless of the smaller firm size – was that of having high levels of social capital: favourable connections and networks.

Some individuals acknowledged their ‘luck’ of good connections – for example, paralegals being able to move companies with their supervisors – and individuals gaining their current position through connections or recommendations. Moreover, it was felt that in smaller law firms, competing against fewer colleagues, individuals may be able to foster a closer mentoring and sponsorship relationship with supervisors than in larger businesses. This, in turn, may be beneficial to career advancement as management come to recognise and acknowledge the efforts of their staff.

Part of a solicitor’s work responsibilities is the development of connections and constant networking. These are highly-desirable skills, not only for the business interests of the company but are also for accelerating the speed of career progression. However, my research demonstrates this may be easier for some groups than for others.

While the smaller law firms were considered to have more supportive cultures than larger firms, for female lawyers aspiring to progress their careers, as reported by the Law Society Gazette, one main stumbling block endured: the choice between career and family. The general impression was that there were still ‘fairly limited opportunities’ for progression in law firms for female employees who wished to have families. Due to familial responsibilities, they felt unable to commit to the extensive demands on their time in terms of networking in connection to both servicing existing and generating new clients, often known as ‘rainmaking’.

Female employees admitted that being a woman in the legal profession was ‘difficult’. Although they had invested heavily into their legal education, they still felt that their colleagues expected them to have children. While some female employees thought that they should not have to choose between prioritising family and work, others said that there was still a ‘sacrifice’ to be made for women in the legal profession. Moreover, two female solicitors directly stated that being pregnant was a career obstacle and disadvantage they had experienced.

Similarly, minority ethnic lawyers also had greater levels of commitments outside of work; either relating to religious observations, responsibilities to both their close and extended families and in assisting their wider communities. The legal profession itself was criticised: with long-working hours and frequent late-nights, networking and weekend work, maintaining a work-life balance was challenging – as one respondent said: ‘something’s got to give’. The opportunity cost here is deciding whether to dedicate more time to family life or to career advancement.

Working-fathers also made sacrifices, but they came at more of a personal than career cost. Work-life balance was important to them, as their ‘biggest career driver’ were their new families. Some working-fathers also criticised the legal profession stating it was ‘a younger man’s game’ – they said that their priorities now shifted more towards a family-focus and being at home with their families; rather than rain-making for their employers.

In sum, from my research, these smaller law firms and their workforces recognise the importance assigned by its valuable ‘knowledge workers’ to maintaining a ‘work-life balance’. These legal practices thus awarded more prominence to the implementation of flexible-working practices than larger companies.

This smaller company size was felt by employees – especially those with external commitments – to have a more accommodating organisational culture than larger law firms. Despite this, with importance continuously placed on a long-hours culture, building connections and constant networking, lawyers with the highest social capital levels will make the most advances in their careers. These lawyers continue to be of the ‘male, pale and stale’ variety.

Advertisements

The 6th CERIC Doctoral Conference 2017: ‘The Employment Relationship’

Ceric 2017 Blog Picture

CERIC Doctoral Students: Marina Boulos, Juliet Kele, Meenaskshi Sarkar and Frederike Scholz.

‘Work’ is a central activity for people for economic reasons as well as a person’s social and psychological well-being. Since work is formalised in an ‘employment relationship’, it is essential to question and comprehend all aspects of this core component of people’s lives. Today the ‘employment relationship’ as understood traditionally appears to be changing at an unprecedented rate. New organisational forms, employment contracts, the rise of the self-employed and the gig economy make it imperative for us to question the traditional paradigms through which we understand the labour market and people’s experiences within it.

Building upon its past successes, the Centre for Employment Relations, Innovation and Change (CERIC) conference organising committee at Leeds University Business School are pleased to announce the theme for the 6th Doctoral Conference: ‘The Employment Relationship’. As in previous years, the CERIC Doctoral Conference offers an inclusive environment for doctoral students at any stage of their PhD to share their research and knowledge with peers, but also academics within CERIC. It offers a great opportunity for doctoral students within the Work and Employment Relations field, but also other areas of social science research, to receive constructive and valuable feedback, and to network with academics that are interested in many aspects of the ‘employment relationship’.

CERIC is pleased to offer a prize for the best presentation, which will be the costs (up to £400) to cover attendance at a leading conference of the student’s choice. There is also a prize of £100 for the best poster presentation.

This year’s conference organising committee consists of four doctoral researchers who focus on different aspects of the ‘employment relationship’.

Workplace Stress: Is Prevention Better Than Cure?

Within her PhD research, Marina Boulos explores what is actually done about stress in the workplace. Who is responsible? How is stress managed? Can it be prevented? With the research project, she is trying to answer these questions via two case studies by interviewing main actors in stress management, as well as their employees. Her study tries to discover who’s considered to be responsible for managing stress, designing, implementing and evaluating stress management interventions in organisations.

Career advancement in small and medium enterprises (SMEs): experiences of a diverse workforce

Juliet Kele is investigating how career progression is structured within small and medium-sized law firms in the Yorkshire region; the factors affecting such progression; and how and whether diversity within the smaller firm workforce is managed. The impetus for this research is that despite the economic importance of small- and medium-sized enterprises (SMEs), they remain insufficiently studied regarding diversity issues. Juliet uses intersectionality theory in order to examine gendered practices in the SME context.

British Pakistani taxi drivers: An insight on class, culture and employment habitus.

Meenakshi Sarkar has adopted an ethnographic study nestled within the structure and agency debate. While most academics agree that there exists an ethnic penalty in the British labour market, Pakistanis seem to be paying an additional Muslim penalty and a Pakistani penalty, which pushes them to the bottom of the pile in comparison to other ethnic minorities.  Almost 1 in 4 Pakistani men in the UK drive taxis for a living. Is it a choice or a result of constraints? Meenakshi argues that the intersectionality of class, affiliations, gender, and ethnicity form a habitus (Bourdieu, 1984) which metaphorically forms a mental ‘cage’ which impacts on their their agency. The choice to drive taxis is steeped in years of neglect, discrimination, marginalisation and constraints – both real and perceived – in the labour market.

Disability inequality and the recruitment process: responding to legal and technological developments

Frederike Scholz has adopted an emancipatory research approach that has investigated the experience of disabled jobseekers and the growing use of online recruitment and selection practices within the UK. Online recruitment and selection practices can be viewed as inequality regimes that are built on the principle of ‘ableness’, which discount individuals who are not seen as ‘ideal’ because of impairment. In order to understand all aspects of the employment relationship, Frederike has also investigated organisations’ knowledge about the discriminatory impact of online recruitment tools.

The deadline for abstract submission of up to 300 words is Friday, 14th April, 2017

(Notification of acceptance will be sent by Tuesday 18th April).

The abstract submission can be made via email – cericphd@leeds.ac.uk

To register please go to: http://business.leeds.ac.uk/about-us/article/2017-centre-for-employment-relations-innovation-and-change-ceric-doctoral-conference/

Marina, Juliet, Meenakshi, Frederike and the CERIC team look forward to welcoming you on Wednesday 10th May.

For further information, please contact The CERIC team at cericphd@leeds.ac.uk

Brexit and worker’s rights: should workers and trade unions be concerned?

DSC_4741

Dr Liz Oliver

Brexit creates uncertainty for important employment rights. Very many of the employment rights that have come to be expected as part of an employment relationship in the UK derive from EU law. Should the UK no longer be obliged to maintain these as part of its obligations under whatever relationship it has to the EU, then their future becomes much less certain. Could, on the other hand, Brexit create an opportunity for employment rights? An opportunity to re-think the way that employment law and other forms of regulation (such as collective bargaining) work together in a way that suits the economy in UK and responds to the national and global challenges that workers face? The answer to that question very much depends on the opportunity for an open and informed democratic debate. Whilst the Government is making assurances about protecting the workers’ rights, the mechanism by which it is doing this – ‘a Great Repeal Bill’ – potentially contains a back door through which such provisions could be readily amended or repealed without the full scrutiny of Parliament. Unfortunately therefore both workers and trade unions are right to be concerned.

What is at stake?

The impact of EU law on employment in the UK reaches far and wide, encompassing equality legislation; pregnancy; maternity and parental leave; paid holiday; employee rights in the context of insolvency; collective consultation in the context of redundancy to name but a few areas. Others have mapped this in great detail.

The impact of Brexit on this body of workers’ rights depends on two main contingencies;

  • the nature of the future relationship with the EU and
  • the political climate with regard to employment regulation at national level

It seems unlikely that the UK’s future relationship with the EU will entail obligations in the area of employment and other social law but much remains to be seen. As details of the Prime Minister’s negotiating strategy emerge in particular the intention to leave the single market and customs union and not to contemplate existing models such as ‘the Norway option’ which would entail continued membership of the European Economic Area. It becomes clearer that the overriding goal is for the UK’s future relationship with the EU to entail minimal to non-existent obligations. Nevertheless much remains to be seen. The Prime Minister’s speech and the subsequent white paper set out her unilateral intentions ahead of the negotiation with the other Member States of the EU. As such, it is aspirational and projects an intention for Theresa May to have her cake and eat it too. Any concessions around key objectives such as the “greatest possible access” to the single market and “tariff-free trade with Europe and cross-border trade there to be as frictionless as possible” will come with considerable strings attached.

In terms of the political climate with regard to employment regulation, the picture here is mixed. The current Government has not taken the overtly deregulatory stance of the Coalition Government or previous Conservative Government and the Prime Minister and her government have made assurances about protecting workers rights. Nevertheless concrete legal steps to ensure that current standards are maintained are lacking. Of particular significance is the distribution of power between the Executive (Government) and Parliament in decision making in the area of employment law. This important matter will shape extent to which matters of employment law will be opened up to democratic debate.

To what extent will worker’s rights be protected and maintained through the Brexit process and beyond?

The EU law that is relevant to employment takes different forms and takes effect at national level in different ways. Whilst some employment law derived from the EU can be found in Acts of Parliament (primary law) other provisions have been transposed using secondary legislation based on the European Communities Act 1972 and others still take effect automatically because they are directly applicable (The European Communities Act 1972 allows such provisions to have effect without further enactment).

Brexit poses two types of issues 1) technical issues about the form and function of different provisions and 2) issues of substance about what role employment law should take within the UK.  As the discussion below will show. The two issues interrelate.

Following the referendum result some called for a repeal of the European Communities Act 1972 (in order to ‘undo’ EU law), but it was clear that that position would be unworkable. The Prime Minister has instead announced a bridging mechanism in the form of a ‘Great Repeal Bill’ which will repeal the European Communities Act 1972 and transpose existing EU law into national law. The Government’s white paper on the UK’s exit from the EU contains assurances about worker’s rights:

“The Great Repeal Bill will maintain the protections and standards that benefit workers. Moreover, this Government has committed not only to safeguard the rights of workers set out in European legislation, but to enhance them”

On the one hand this looks like a sensible idea. It maintains legal certainly and potentially opens up a space to review what provisions to keep and whether or how to change or remove them. But an important question is who gets to make these decisions. Will it be Parliament or will it be the Government?

Constitutional lawyers have identified the proposed use of enabling provisions within Great Repeal Bill as a stumbling block to achieving enhanced Parliamentary sovereignty. The Department for Exiting the European Union’s announcement states “The Repeal Bill will include powers for ministers to make some changes by secondary legislation, giving the Government the flexibility to take account of the negotiations with the EU as they proceed.” Such enabling provisions may give ministers the power to amend or repeal former EU law based on the Great Repeal Act using ‘light touch’ secondary legislation. Of particular concern are so called ‘Henry VIII’ clauses which would allow for the repeal of primary law without further Parliamentary scrutiny, these could open up employment law that is already enacted by Acts of Parliament to amendment or repeal. It raises concerns that the ‘back door’ is left open for the Government to make significant changes to employment law without full debate or scrutiny. The scope and exercise of such powers will delineate the potential for Parliamentary (democratic) debate about what employment standards are expected by workers and employers within the UK.

The size and shape of the ‘back door’ is yet to be seen but talking about assurances that the Government has given on worker’s rights one legal expert notes

“There’s a definite “fox in charge of the henhouse” vibe here – quite literally so, if we remind ourselves of cabinet minister Liam Fox’s attitude to EU employment regulation”.

Workers and trade unions are right to be concerned and to seek legal mechanisms to guarantee employment rights.

Attempts to assure worker’s rights

Labour MP Melanie Onn introduced a private members Bill ‘The Workers’ Rights (Maintenance of EU Standards) Bill’ as an attempt to ensure that the current legal regime remains in place, however this was ‘talked out’ of Parliament on Friday (13th January).

Several amendments to the ‘Article 50 Bill’ (European Union (Notification of Withdrawal) Bill 2016-17) seeking to protect employment law were tabled. These took different forms, some sought to ensure  that the Prime Minister have regard to the public interest in existing social rights and others sought to ensure that current provisions are maintained and that Parliament has full scrutiny of any proposed changes to primary and secondary law. None of these amendments have held.

My view

Whilst some have argued that the removal of key employment protections that derive from EU law would be ‘politically unthinkable’ others argue that it would be ‘naïve’ to assume that any of the rights derived from EU law would be immune from repeal. It is my view is that a government with a deregulatory agenda can make important changes to employment law that are far reaching yet subtle, even where whole-sale deregulation would be politically unworkable (see previous blog post). The use of Henry VIII clauses within the proposed ‘Great Repeal Act’ could facilitate far-reaching changes without commensurate democratic debate. Employment law is complicated stuff, nothing short of a full and open democratic debate can support its appropriate reform. The Brexit domain is a million miles from this.

Understanding the implications of the global growth of non-standard work

calum-carson-web

Calum Carson reflects on his input into a major new research report by the International Labour Organisation on the growth of non-standard forms of employment around the world.

During the past few decades, a key debate has emerged in the work and employment research field as to whether the traditional laws and conventions that regulate employment and the employer-employee relationship have been irrevocably transformed by the rise of a number of new, “non-standard” forms of employment (NSFE). While this has long been a major issue of contention these developments are now being taken seriously by major global actors such as the International Labour Organisation (ILO), International Monetary Fund (IMF) and Organisation for Economic Cooperation and Development (OECD). The continued growth of NSFE and its implications for those employed in such roles are the key focus of a major new report launched this month by the ILO, which highlights the policies needed to improve the quality of non-standard jobs. The report finds that there has been a rise in non-standard forms of employment globally, to the extent of which that they are now, in the words of ILO Deputy Director-General for Policy, Deborah Greenfield, “a widespread feature of contemporary labour markets.”

Such non-standard forms of employment include temporary roles; part-time work; temporary agency work; “micro jobs”; the misclassification of individuals in certain roles as “independent contractors” (otherwise known as disguised employment relationships); and dependent self-employment. In Britain in particular, the growth in the number of workers employed on zero-hour contracts reflects the rise of these new forms of employment, with over 903,000 individuals (2.9% of the entire workforce) employed under such contracts. Additionally, a comprehensive analysis published in November revealed that more than one in five workers in the UK (over 7.1 million people) are employed under precarious working conditions, up from 5.3 million in just 2006.

With the continued growth in NSFE an ever-greater number of workers are unable to access certain benefits associated with a ‘traditional’ employment relationship, such as pension contributions from employers, paternity leave, and sickness and annual leave pay. Such workers also struggle to collectively organise and represent themselves in disputes with their employers via effective trade unions, as seen most recently in the UK with strikes by Deliveroo and Uber workers. The rise of these new forms of employment call for new forms of regulation in turn, both in order to address both the issues discussed above, and to ensure that the future evolution of NSFE develops in a sustainable manner for both workers and their employers.

While the ILO report does highlight the positive implications that NSFE can have in certain instances, including providing access to the labour market for disadvantaged groups and granting some flexibility to both workers and employers, it also cautions that NSFE is often associated with greater insecurity for workers. In some cases, particularly where contractual arrangements have blurred the employment relationship, there is evidence that workers have difficulty exercising their fundamental rights at work, or gaining access to social security benefits and on-the-job training. These issues also affect employers, too, by creating productivity losses and resulting in high rates of turnover in staff.

Finally, the report suggests four key policy recommendations to improve the quality of non-standard jobs: to plug regulatory gaps in the oversight of NSFE roles, in order to protect workers in a more direct manner; to strengthen collective bargaining for NSFE workers, to enable them to challenge their employers where necessary; to strengthen social protection of workers, to ensure that workers have access to the same level of benefits that workers working under a traditional employer-employee relationship do; and by instituting employment and social policies that support job creation and that accommodate workers’ needs not only for training, but also for family responsibilities such as childcare and elder care.

In the context of the growth of NSFE and its seemingly permanent embedding in labour markets across the world, this report makes an important contribution in helping to highlight the key issues surrounding this phenomena, and in how best to protect those workers operating within such roles both now and in the future. Such research is critical in helping us to fully understand and inform the continued development of these issues, as well as other changing dynamics within the world of work, employment and labour markets. The ILO, CERIC, and our colleagues across the world have a key role to play in the undertaking and dissemination of this crucial research.

Here at CERIC research into this area continues with a new study commissioned by the Committee on Employment and Social Affairs of the European Parliament, which will examine the development of the collaborative economy in Europe and the potential need for greater social protections for workers operating within it. Involving a wide number of colleagues across CERIC and under the leadership of Professor Chris Forde, this research will report back its findings to the European Parliament and the wider public in May.

The business of the June Referendum and labour citizenship in the EU: what’s good for workers?

By Gabriella Alberti, Liz Oliver, Ian Greenwood and Chris Forde

Media coverage on the forthcoming Referendum over the UK’s membership of the EU continues to be dominated by economic predictions and intra/inter party posturing about the potential effects of Brexit. What is often lacking in the public media is an analysis of the substance of Cameron’s negotiations with the other EU members, and in particular, the consequences of a Leave or Remain decision for the employment rights and social protection of working people (including migrants) in the UK and in the EU. In what follows we bring together the expertise in CERIC as labour and legal scholars with the hope of sheding some light on the all too often empty debate on the consequences of leaving or staying in the EU, with the additional hope of bringing in some more international flavour. Our focus is on two elements of the negotiation: free movement of labour in the common market (in the context of a ‘Remain’ vote) and the protection of worker rights (in the context of a ‘Leave’ vote). We argue that while the agreement reached last February to meet the UK government’s conditions to Remain constitutes an important step to chip away at the equal treatment rights for all mobile workers in the EU, the Brexit scenario would have even more detrimental effects on the employment and bargaining rights of both UK nationals and migrants.

The untold story behind the Brexit debate: redrawing borders and labour rights

First, we look at the current state of negotiations over the free movement of labour. Motivated by attempts to forestall the exit of the UK from the European Union, the ‘set of arrangements’ put in place on the 18 and 19th of February 2016 to ‘address the concerns of the United Kingdom’ spans seven texts and covers many areas of EU competence. Even though the proposed revisions in the area of free movement do not introduce all-encompassing changes to the core principles of the common market for labour, good and services they represent a symbolic step away from the twinning of the free movement of workers with the principle of equal treatment for EU mobile workers with citizen workers of a member state. It is our view that in the context of membership of the EU’s internal market this equal treatment principle must go hand in hand with the free movement of workers in order to prevent a ‘race to the bottom’ and ‘social dumping’. The following sections consider the impact of the arrangements underpinning the UK’s continued membership of the EU on mobile workers (UK nationals living and working in other member states and nationals of other EU member states living and working in the UK).

Those aspects of ‘the set of arrangements’ that deal with migration comprise section D of the Decision Concerning a New Settlement for the United Kingdom within the European Union (which would become binding on the Member States in international law), and three Commission declarations, namely: one relating to child benefit exports, a second concerning the so called ‘emergency break on in-work benefits’ and the third addressing purported abuse of the right of free movement of persons (dealing with residence rights for non-EU family members and powers to deport EU national criminals (these are a political commitment by the Commission). The Decision will take effect upon the UK deciding to remain in the EU and if the changes it contains go ahead they would have consequences not only for the UK but for all EU Member states.

In the area of free movement, the declarations set out the Commission’s political commitment to change some of the secondary legislation that forms part of the framework for the free movement of persons. These amendments would not come into force automatically and it is not guaranteed that they would get through the EU’s legislative procedure, but through the Decision the Heads of State or Government legally bind themselves to “do all within their power to ensure [the] rapid adoption” of proposals in the area of the emergency break and child benefit. We focus our analysis on the emergency break because we think it is important to highlight the exception that it would create to the principle of non-discrimination.

What concerns us is that these arrangements contain the seeds for the erosion of the long-standing connection between freedom of movement and social protection for internal migrants in the EU common market (our focus is on workers who have generally enjoyed more extensive rights to equal treatment in the area of social benefits than other mobile EU citizens, since access to equal treatment is dependent on economic activity, degree of integration in the host state and the nature of the benefit claimed). This connection forms an important aspect of the protection of social and labour rights in the EU more broadly.

Tensions between internal market law and social and labour rights for EU citizens are increasingly recognised. In late 2015, we co-authored a Report with Prof Dagmar Schiek which explored the ways in which traditional interpretations of EU internal market law caused tensions and frictions for the protection of social and labour rights. All EU citizens can enter and reside freely in any EU country for three months but beyond that, residence and equal treatment rights differ depending on economic activity with workers or self employed people enjoying much more extensive rights. Such equal treatment in the field of social rights is meant to prevent a downward competitive pressure for all workers within the EU. As we argued in our report with Schiek:

“Putting equal treatment at the centre of the free movement of workers…not only corresponds to the Treaty’s demands, but also helps prevent the downward spirals of wages and employment conditions which may lead to contraction of Europe’s economies.” (p.22)

As also noted by the TUC, safeguards of this sort have reduced the risk of negative froms of competition that are inherent to participation within the internal market whereby member states compete on the basis of poor pay and conditions and reduced employment protection; the so called ‘race to the bottom’. Such protection is a necessary ingredient of participation within the internal market.

As we will show below, the new set of arrangements agreed in February thus creates the risk of a detrimental impact on the exercise of an important social right by internal migrants (that is both UK citizens living and working in another Member State and EU citizens living and working in the UK) and also starts to unpick (albeit in a modest way) some of the ways in which the harsher effects of membership of the internal market are modified. On the other hand the Brexit option, by opening to scrutiny the existing layers of social and labour protection that come from membership of the EU may well lead to even more detrimental effects for UK citizens.

Consequences of the ‘emergency break’ for the rights of moving workers

What has been highlighted less in debate is how – even with a Remain vote in June – the measures considered in the February Decision have the potential to undermine an important aspect of the framework for the free movement of workers, namely that a mobile EU worker should “enjoy the same social and tax advantages as national workers”. The Decision outlines a “safeguard mechanism” that would resond “to situations of inflow of workers from other Member States of an exceptional magnitude over an extended period of time”. In its declaration, the Commission sets out plans to table a proposal to amend Regulation (EU) No 492/2011 in order to bring this mechanism into being. Should the amendment go ahead (and withstand challenge), the mechanism popularly referred to as ‘the emergency break’ would be brought into being. Through this mechanism Member States would be able to withold access to non-contributory types of in-work benefits (like tax-credit and housing benefit). Nevertheless there are limitations on the circumstances in which the emergency break could be used and Member States must follow a procedure (which would involve a proposal from the European Commission and approval of the Council) before it could be used. The circumstances in which the use of the emergency break could be contemplated are: “an exceptional situation…on a scale that affects essential aspects of its social security system, including the primary purpose of its in-work benefits system, or which leads to difficulties which are serious and liable to persist in its employment market or are putting an excessive pressure on the proper functioning of its public services”. In this limited way EU member states could be authorised to discriminate against EU migrant workers in their access to non-contributory types of in-work benefits (i.e. wage subsidies usually provided for low-income workers). This ‘emergency brake’ is seen to over-ride the principle of equal treatment of EU workers; would be enforceable for a maximum of seven years and would apply to all ‘new arrivals’ for a maximum period of four years from the date of commencement of employment.

Why does this tightly defined exception concern us? With the ambition of going back to some issues in the debate that are rather taken for granted, we would like to emphasise the questionable assumptions behind the substance of this aspect of the agreement: that migrants who access this type of benefits seek to take advantage of the “generosity” of the host country’s welfare system, which would represent a magnet towards the country of immigration. This mythology of welfare tourism at the basis of current political compromises, is in fact far from what empirical evidence suggests (Touchstone 2014, Centre of European Reform 2016). Contrary to the idea that migrants represent a burden on public resources (a principle unfortunately legitimised by the current declaration) migrants are clear net contributors into the welfare systems of host countries (see OECD figures reported by INCA 2016). More broadly, the February agreement looks to amend the principle embedded in the regulation over free movement of workers (which is also central to EU regulations on the coordination of social security) in the EU.

equal pay women

In this context it is worth revisiting the origin of the free movement and social rights principles embedded in Article 45 of the Treaty on the Functioning of the European Union and Regulation (EU) No 492/2011 on freedom of movement for workers within the Union (and other provisions dealing with access to social security), the backbones of the regulation of the free movement of workers. Caldarini and Goldman (2016) note that if we look at the roots of the EU socio-legal architecture, alongside the core freedoms of movement for goods, services capital, and labour, the principle of social security for migrant workers established in the Treaties rests on the idea that, “to encourage the mobility of factors of production (labor) it is necessary to neutralize the discriminatory provisions on grounds of nationality present in the different national social security systems”. In other words, whilst wanting to encourage mobility, the principle of social security provision was not “a truly social measure” but was seen as a necessary element to grease the wheels of the newly constituted common market providing an incentive for European workers to move elsewhere for work.

The re-negotation of EU regulation on social benefits for mobile workers, under the pressure of the threat of Brexit thus risks in our view a potential further stratification of labour and social rights, even for workers who have traditionally enjoyed robust residence and equal treatement rights. A concerning scenario is one where even those who will continue to have the right to work in a host country will be officially treated as second class citizens in the EU. In our view this this is a basis to make these workers even more vulnerable to explotiative practices and lower pay. This will exacerbate the problem of social dumping under the overall rhetorics of ‘protecting the borders’ and the welfare state from alleged abuse. In sum, as a consequence of the battle against the assumed ‘social benefits fraud’ the reality of social dumping would thus come to replace the myth of welfare tourism thus engendering a downward pressure of labour conditions for all citizens and migrant workers.

Considering the potentially dangerous effects of the principles included under the political agreement reached by the EU 28, an outsider looking at the business of the Referendum may wonder: is Brexit then the answer to avoid a downward negotiation of EU minimum social and working standards (for the rest of EU citizens)? Given the EU origin of many of the current regulations protecting workers’ rights and the detrimental impact of curtailing social rights for migrants’ bargaining power in the workplace we are confident in saying that Brexit may lead to even worse effects for all those working in the UK.

 Impact of Brexit on workers’ rights and legal issues

The first thing to say about the impact of potential Brexit on UK workers rights is that what will happen to national employment law as a result really isn’t clear cut. This will very much depend on two main contingencies; the nature of the future relationship with the EU and then the political climate and responses at national level. The process of withdrawl from the EU entails negotiating a future relationship and the outcome of the process is an agreement setting that out. The agreement may entail social obligations. If for example the relationship between the UK and the EU resembaled that between Norway and the EU “the Norway Option” then the UK would still be obliged to comply with EU social law that is relevant to the European Economic Area (including the free movement of workers). The second thing to say flows from the first, change wouldn’t happen automatically as a result of a vote to leave the EU, the outcome of EU level negotiations will, in turn, shape national political responses in the realm of employment relations and employment law. That said very many of the employment rights that have come to be expected as part of an employment relationship in the UK derive from EU law. Should the UK no longer be obliged to maintain these as part of its obligations under whatever relationship it has to the EU, then their future becomes much less certain.

Space does not afford a full description of how EU law shapes national employment law here, moreover a full and detailed analysis of this sort has been completed by Michael Ford QC on behalf of the TUC . Drawing from Ford’s analysis the following list demonstrates that the impact of EU law on employment in the UK reaches far and wide:

  • key rights in the area of discrimination;
  • pregnancy, maternity and parental leave;
  • protection for atypical workers (part-time, fixed-term and agency workers);
  • working time (which includes paid annual leave);
  • collective rights (collective consultation in the context of redundancy, the transfer of undertakings, on questions relating to health and safety, transnational information and consultation, information and consultation of employees);
  • rights of employees in the event of a transfer of undertakings (for example a business transfer or service provision change);
  • certain areas of health and safety;
  • employee rights against employers who are insolvet;
  • right to a written statement of employment particulars;
  • aspects of data protection at work;
  • the rights of workers posted from the UK to work in another Member State;
  • the free movement of workers in the EU.

The risk of legal uncertainty caused by outright deregulation of all these provisions is great and it would be unworkable simply to sweep such legislation aside. Others have argued that a simple repeal of the European Communities Act would not be effective and it doesn’t seem plausible that the future development of employment law would be decided on a binary distinction between what is rooted in national law and what came from the EU. Surely a political review would be based on the substance of the legal protections and the merits thereof. Even if a binary approach was to be considered, the process of identifying what is an EU provision and what is a national one is complicated by the interrelationship of national and EU law. Some nation laws (such as those dealing with race discrimination or disability discrimination) preceded EU level regulation but were later modified as a result of the development of EU law. Moreover normative approaches to employment regulation have been shaped by soft legal mechanisms that promote policy coordination and exchange at EU level (for example through the European Employment Strategy). Whatever approach is taken, the key point is that exit from the EU may open these rights up to scrutiny.

The ways in which Brexit could impact on the national level regulation is certainly not straightforward but that is not to say that there would be no impact at all. In his analysis of the impact of Brexit on annual and parental leave, employment lawyer Philip Landau concluded that “Although the rules emanated from the EU, it would be politically unthinkable for the government to reduce these allowances.”. So what would be ‘politically thinkable’? Ford argues that it would be naïve to assume that any of the rights listed above would be immune from repeal. Our view is that a government with a deregulatory agenda can make important changes to employment law that are far reaching yet subtle, even where whole-sale deregulation would be politically unworkable.

To illustrate the above point let’s to look at the changes that were made in the area of unfair dismissal under the previous government. The law of unfair dismissal is a major employment right in the UK and, as a national provision of employment law, was open to scrutiny under the ‘Employment Law Review’ and the ‘Red tape challenge’. Even with the Coalition Government’s expressly deregulatory agenda it would have been politically unthinkable to repeal (or to use the words of Adrian Beecroft “do away with”) it. Nevertheless taken together, several of the changes made to unfair dismissal law have major implications for its practical effect. Firstly the legal coverage of the right contracted when the qualifying period was increased from one to two years, then the actual coverage of the right was curtailed by the introduction on employment tribunal fees and the categorisation of unfair dismissal as a ‘type B claim’ which attracts the higher level of fee (issue fee: £250, hearing fee: £950 total £1200) making it harder for low-earners to contemplate enforcing their right. Finally with the introduction of a new approach to settlement agreements important procedural aspects of a fair dismissal can be circumvented. Taken together these changes have far reaching implications for the relevance of this right in the work place.

This section could not tackle precisely how Brexit would impact on national employment law (much is unknown), nevertheless what it is clear is that the exposure of the extensive range of rights now guaranteed through membership to EU law to political reappraisal would open up the possibility of deregulation. It should be bourn in mind that where a government has a deregulatory agenda it may be politically possible to radically reduce the protection afforded by such key rights even where wholesale repeal is ‘unthinkable’.

 workers blue collar

Trade unions and Brexit

Although amongst UK trade unions, opinion is divided as to the benefits of leaving the EU, the leaderships of UK unions are, in the main, in agreement that although the EU requires reform, the benefits of staying in, outweigh those of exit. Unions argue that, although at the EU’s political heart there is a growing allegiance to business and, through the strictures of its financial institutions, a commitment to deflation, the idea that outside the EU lies a world that is not increasingly in thrall to the needs of finance capital is, nevertheless, a curious one. At its core, the left debate on Brexit centres on a fundamental question: will, European capitalism be weakened or strengthened by Brexit? A crucial question that flows from this analysis, is that workers’ rights and their ability to enforce these, will be either strengthened (Brexiters) or weakened (Stayers).

The two largest UK unions Unite and Unison, will be urging their member to vote to remain in the EU. That Brexit would not be in the interests of their members. They cite the noises coming out of Conservative Central Office that following Brexit, and a lurch to the right, health and safety regulations will be diluted and the labour market made more flexible. Dave Prentis, General Secretary of Unison believes it is an illusion that the public sector will be better served by Brexit. The Tories already pushing ahead with marketization will be emboldened. He also calls for unions to work solidaristically within the EU with unions and social movements transnationally for progressive reform of the EU rather: an international labour solidarity to match that of business.

The Executive Committee of Unite, the UKs largest manufacturing union, whilst calling for reform of the social dimension of the EU, is again urging members to vote against Brexit. A major concern for Unite is that a major contraction of UK manufacturing industry with its relatively high wages, skills and R&D spend, will accompany Brexit. A further concern for Unite is the impact of Brexit on the ability of the UK to negotiate trades deals that benefit workers. The bargaining influence of a trade block of 500 million people far exceeds that of a single country. The example of the steel industry is illuminating. Whilst there are problems with some aspects of EU policy, for example the opposition of the UK government to strengthening Trade Deference Agreements, the ability of the EU to negotiate as if was a single country is the only bulwark against annihilation of the UK steel industry. To sum up the impact of Brexit on workers rights and living standards is of course unknown but rests on assumptions made at two (connected) levels. One level is ideological, the other pragmatic. It might be argued that unions are adopting a largely pragmatic line.

Conclusions

To conclude, we may consider these sets of reflections as a general invite to endorse a less nationalistic stance to an essentially non-national issue such as the question of belonging or not to a regional political and economic community (and for some one with relative progressive social ambitions, for others more contradictory) such as the EU. Even more the above reflections may help shifting the gaze so to consider the impact of a potential exit of Britain from the EU from the point of view of the labour conditions and social protections not only of ‘nationed labour’ but for all moving workers, including the many Britons currently working and living in other EU member states. A further and critical step would be to look at the potential for alternative labour organising responses to the questions of the social effects of free movement of labour, and what staying in the EU may offer in terms of promoting a transnational labour solidarity that matches that of business.

Steel in Crisis: Restructuring for People

ChrisMacpicture
Chris McLachlan, Leeds University Business School.

The construction of an industrial strategy for UK steel is essential. Within the debate over this requirement and as part of its development, it is important to have an understanding of what happens at plant level when restructuring and redundancy occur. A plant that is of key focus in the current steel crisis is Tata Steel’s long products site in Scunthorpe. The plant has undergone successive restructuring processes in recent years, with ‘Project Ark’ in 2011, ‘Path to Profit’ in 2013, and now the decision to sell the long products division.

Some 2,600 job losses have been announced over this 4 year period, which leaves the Scunthorpe site with approximately 3,000 employees. Since the divestment decision the security of the entire site has been under threat. The recent announcement of the potential sale of the long products division to UK based investment firm Greybull Capital provides hope for the Scunthorpe site, but for its employees a worrying period of uncertainty remains. This contraction of the UK steel industry workforce has, of course, been in train since the 1980s. Amidst the prevailing industrial context, the recent bout of restructuring is having profoundly negative effects on not only the lives and careers of individuals but also the communities affected by the restructuring. Banners at recent Save Our Steel events in Scunthorpe and Sheffield simply stating ‘HELP OUR TOWN’ (image below) are testament to the extensive impact of the current steel crisis. How might firms maintain their social responsibility to workers and communities in the face of these job cuts? Indeed, do organisations have a social responsibility for their employees?

Tata Steel Demo

At Scunthorpe, a notable step in attempting to develop a socially responsible approach to restructuring was the Project Ark process in 2011. This process was framed around a broader commercial strategy that reduced the volume of steel produced at the site, and further justified through a focus on producing higher quality, higher value added steel products along with a plan of investment in skills and training that sought to create a more flexible workforce. The consequence of this, however, was the announcement of 1200 job losses due the mothballing of the bloom and billet mill. The Project Ark strategy was a critical moment between Tata and the affiliated trade unions, as the job losses were essentially agreed by both parties to on the promise of future investment in skills and the broader commercial plan that promised to ensure the survival of the plant. Evidently, these promises were not upheld by Tata. At Save Our Steel rallies, senior union officials and MPs continue to bemoan the Project Ark process, with the subsequent Path to Profit process (500 job losses announced) perceived as a residual restructuring from the failures of Project Ark. Meanwhile, the HR team were rewarded for their efforts in managing the job losses, receiving an internal CEO award for their efforts in conducting a socially responsible restructuring process. Therefore, it is clear that Tata appreciate the need – the requirement, even – to ensure their restructuring practices are conducted in this way, with the process also being used as benchmark across the rest of their UK operations.

Tata claims a social responsibility to ameliorate the impact of these job losses for affected individuals and the local community. This commitment is laid out in its most recent Annual Report (2014-15). The socially responsible restructuring processes at Tata Steel UK have typically been characterised and managed through the avoidance of ‘hard’ (compulsory) redundancies – through redeployment practices such as cross-matching affected individuals in vacant positions internally – a close working relationship with the trade unions, and the provision of basic employability support in CV writing and interview training for those made redundant. As long as people who wish to leave do so voluntarily, this allows those wishing to remain to take up alternative employment within the organisation. The joint management-union goal of plant survival, has always been the key rationale underlying these processes. Amidst the prevailing industrial context the threat of restructuring within Tata seems more imminent than ever. The announcement of more job losses (18.1.16) at Tata UK’s Port Talbot site is clear evidence of this. In this context, the sustainability of this socially responsible approach to restructuring is subject to increasing amounts of pressure. The coming negotiations between Tata and its trades unions will prove historically significant not only for the fate of the Scunthorpe site but for the UK steel production more broadly. The feet of steel workers are being held firmly to the blast furnace fire.

Up to £6m has been pledged by UK Steel Enterprise (a CSR-based subsidiary of Tata that supports steel areas affected by restructuring) and the government to aid regeneration and job creation in Scunthorpe, along with another £3m aimed at funding retraining for affected individuals. Supportive measures like this, however important and in real terms quite limited, become devalued when CEO of Tata Steel Europe Karl Koehler claims that the long products division has no future beyond the end of the financial year. Moves like this further disillusion the workforce, creating a reluctance to engage with the range of support measures on offer. Additionally, recent changes in organisational structure in order to prepare the plant for being a ‘standalone’ business, then the subsequent decision to sell the division off, has put further pressure on the Scunthorpe plant to control costs and hence pressure on jobs. Given that previous restructuring processes have been necessarily framed around the survival of the plant, the imminent threats that these events pose bring into question any notion of a socially responsible approach. What is crucial in the negotiations around restructuring, job losses and sell off, is for Tata to continue to engage with trade unions in order to ameliorate, and where possible limit, the amount of job losses so as to ensure the process is conducted in a socially responsible fashion.

Chris McLachlan is a PhD student at Leeds University Business School and a member of the Centre for Employment Relations, Innovation and Change.

 

 

 

How can local authorities deliver better skills and employment support?

Jo Ingold 2
Dr Jo Ingold, Leeds University Business School

On the hottest day ever recorded in the UK, a diverse range of local authority Chief Executives from across the UK gathered in Harrogate for a Roundtable event ‘Can local government help deliver the welfare agenda?’ which ran alongside the Local Government Association Conference. In a short space of time we covered a range of issues. In this blog, I summarise the main issues that were debated, focusing on skills, the challenges of provision of employment support services, and the nature of effective evaluation.

Unsurprisingly skills came up as a key problem, including skills mismatches within local areas, both in relation to moving the unemployed into work and also with regard to employee retention and progression. One example given was of money being made available for skills training in particular geographical areas without incorporating intelligence about the jobs which are likely to be available in local and regional labour markets in future. Such skills mismatch problems are symptomatic of a broader fragmented landscape of skills and employment at the Whitehall level. The agendas of the Department for Work and Pensions (DWP) and the Department for Business, Innovation and Skills appear radically different in this area. The DWP seems more focused on the quickest way into work (in line with ongoing welfare reforms), rather than long-term skills development. In the context of potential (and partial, rather than total) devolution this fragmentation of the provision of social security and skills and employment support is likely to become even more messy, with accompanying accountability issues. Local Enterprise Partnerships (and their equivalents in Wales and Scotland) have a key role to play here but to date it’s not clear how far they are fulfilling this.

Also apparent from the discussion at the Roundtable was that amongst the local authority areas represented – from the urban to the rural and coastal – most were involved in delivering a range of employment support initiatives for a diverse range of groups outside the labour market, particularly those with multiple barriers to work. In some areas such projects were in response to perceived gaps in central government-commissioned Work Programme provision and in other areas they ran alongside the Work Programme. However, very little mention was made of partnerships with Work Programme providers. This raises two critical points.

Firstly, it seems sensible (and more cost-effective) not to duplicate existing – and, importantly, effective – provision. This will become even more crucial in the context of potential devolution settlements. Both local authorities and providers contracted to DWP to delivery employment services (alongside LEPs and their equivalents in Wales and Scotland) need to think more creatively about how to work together more effectively in the next Work Programme contract (from 2017). This is crucial for the provision of more effective employment support for the unemployed and also to provide a more coherent service for employers.

Secondly, with much good work going on, a key question is how to capture what is happening and to rigorously and robustly evaluate it. A few of the projects mentioned around the table were being evaluated but in the context of ongoing and severe local authority budget cuts, there is a need to think more creatively about how local authorities, organisations delivering employment and skills support and universities can work together to evaluate what works for whom and in what contexts (circumstances, labour markets). The black box approach of the Work Programme (freeing employment services up from government prescription) is a promising idea in principle. However, four years on from the introduction of the Work Programme it is still unclear as to whether and how evidence about what works is being harnessed and, importantly, disseminated across all interested organisations. As Julia Salado-Rasmussen argues in her recent CERIC blog, establishing causal links between active labour market interventions and outcomes can be difficult. The potential of more localised (and personalised) provision provides an opportunity for fine-grained and meaningful evaluation that can be better translated into future policy. However, one of the shortcomings of the competitive Work Programme model (and the broader commissioning of employment services) is that programme data can often be protected as ‘commercial in confidence’. It is crucial that such evidence is shared and used for wider benefit in order to inform future interventions to assist the unemployed into work.

Dr Jo Ingold is a Lecturer in Human Resource Management and Public Policy at Leeds University Business School, UK and is currently researching employer engagement in welfare to work programmes: http://business.leeds.ac.uk/research-and-innovation/research-projects/how-do-inter-organisational-relations-affect-employer-engagement-uk-and-denmark/