Politics in action - what the election result could mean for employment practitioners.

Politics in action - what the election result could mean for employment practitioners.

With a general election imminent, it's time to contemplate the possibility of a non-Labour government, and, if polls are to be believed, a Conservative government. This article explores the likely impact such a change might have for employers if this materialises in 2010.

Fundamental to this issue is the Conservatives' policy paper, "Regulation in the post-bureaucratic age", which contains far-reaching and ambitious plans for reducing the regulatory burden on businesses. Some indication has been given of what might be affected:

Employment tribunal reform
The Conservatives' policy paper commits them to consulting carefully on the need for any changes to the employment tribunal system "to ensure the system offers fast, cheap and accessible justice which is fair to all sides." The Conservatives are particularly concerned over perceived inconsistencies in the tribunal system. It has been reported that, amongst Tory plans, are moves to deter claimants from lodging weak cases at employment tribunals, such as possibly applying a fee for litigants who lose their case (more akin to the court system).

Legislative change
The Conservative promise to "simplify" employment law, has led to speculation as to how far this might go, and whether it may extend, for example, to a repeal of the transfer of undertakings legislation and/or repeal of the Human Rights Act. Recent reports have suggested that, although they would fall short of repealing the legislation, the Tories would allow the national minimum wage to "wither on the vine". They may also be considering curtailing the ability of unions to call for industrial action by introducing a minimum required turnout for strike ballots. Such a change would prevent action such as that taken by the RMT in June last year when the staff walked out after a ballot in which less than a third of members voted.
Finally, the current government has rushed through the agency workers legislation before the general election, although implementation is delayed until 2011. The recently released regulations are designed to give temporary workers equal treatment in pay, holiday and hours. The Conservatives have said they will repeal or amend the regulations if they come to power, following lobbying by employers' organisations.

EU employment law
David Cameron has pledged "to negotiate the return of Britain's opt-out from social and employment legislation in those areas which have proved most damaging to our economy for example, aspects of the Working Time Directive" (which the EC is planning to revise imminently) and wants a "complete opt-out from the Charter of Fundamental Rights".

A previous Conservative Government opted-out of the Social Protocol (also known as the Social Chapter) in 1992. The remaining 11 Member States (MS's) agreed to be bound by the Protocol which committed them to extending workers' rights, whilst the UK's opt-out meant that directives on European works councils, parental leave and part-time work, for example, did not apply here. The opt-out was reversed when the Labour Government signed up to the Social Protocol in 1999. At that point the Social Protocol ceased to exist, thereby also removing the possibility of future opt-outs. Had the opt-out not been reversed in 1999, the directives on fixed-term work, information and consultation of employees and agency workers (all enacted under the revised Treaty Social Chapter) would not have applied to the UK. 

In EU constitutional terms, whilst opt-out "from social and employment legislation" is legally possible, any attempt by the Conservatives to do so would be breaking new legal ground and would face considerable practical hurdles, not least in securing the necessary unanimous agreement of MS's. In any event, many EU law rights are by now incorporated into individual contracts of employment which will be legally difficult to alter, meaning that an opt-out may not deliver immediate gains for institutions and other employers.

Should the policy succeed, however, advantages may include greater clarity in employment law and quicker and more straightforward dispute resolution (where EU competence is removed).

An area in which an opt-out has already been secured, is the Charter of Fundamental Rights. The Charter covers a whole raft of traditional human rights and social/employment rights and principles, including a right to information and consultation, collective bargaining and strike action. The Charter exists to guide the implementation of EU law although there are concerns that giving the rights legal effect will allow them to be recognised or interpreted in ways that introduce new rights for employees. As the UK has already negotiated an opt-out from the Charter, revisiting it will be less controversial and may meet with more immediate success.

Family friendly policies
In the Labour party's recently released green paper, the party promises a review of paternity leave and of whether parents should be able to take parental leave when their children are more than five years old. This is, of course, in addition to the already timetabled changes to paternity leave
In contrast, in their draft manifesto, the Conservatives focus on flexible working and commit to extend the right to request flexible working to every parent with a  child under the age of eighteen (though it is currently open to all parents with a child aged under seventeen). Their proposals for a new system of "flexible parental leave" of 52 weeks per couple will be largely superseded by the current government's proposals due to take effect for babies born from April 2011, as a result of which fathers will be able to take up to 26 weeks' paternity leave.

Equality
The Tories also promise to tackle the gender pay gap, including stronger legislation to prevent employers discriminating. Indeed, they launched a Private Member's Bill in December: "The Equal Pay and Flexible Working Bill". Meanwhile, the current government is in the process of introducing the Equality Bill, which aims to unify and simplify the nine existing pieces of equalities legislation.

Conclusion/comment
Clearly all the parties are pumping out ideas and proposals at this time of high political interest. Perhaps the most far-reaching of the Conservatives' commitments for HR are their proposals regarding Europe. If the Tories were to succeed, the legislative horizon could look very different indeed in a few years time. If elected, a Conservative government will certainly not mean that employers can sit back and relax.

Simon is a partner and has considerable experience of employment litigation and has a reputation for his discrimination law expertise, having been responsible for a number of high profile discrimination cases over the last five years, and continues to build this area of his practice. In addition, Simon's contentious workload includes unfair dismissal, whistleblowing and executive terminations.
 
In addition to his contentious practice, Simon also gives advice in relation non-contentious matters, such as the implications of the TUPE regulations for large acquisitions, issues relating to proposals to change terms and conditions of employment and large scale redundancy exercises.