What I say, or what I mean? Red tape and employment law

This is the fourth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at the opportunity to simplify legislation

Over the last 30 odd years I have seen a number of ‘simplifications’, and not one of them has simplified anything for anyone.   Take a few separate short statutes, and once ‘simplified’ they seem to turn into 100 pages of legislation and 200 pages of ‘guidance’.  Why is this?

It is not because anyone is trying to make it any harder than it is.   It may be because:

a)      European laws are ‘purposive’ – which means they are drafted with an intention to have a particular effect, and national parliaments have to work out how to achieve this – which is more complicated in the UK because …

b)      UK laws are written so that the words we use are what the law is

c)       When the UK courts and tribunals interpret UK implementation of EU laws, this can throw up problems with the UK approach (“what do the words say”) and the EU approach (“what is the legislation trying to achieve”).

There are specialists (Parliamentary draftsmen) who draft the words of laws in the UK.  It is a particular skill, honed in a tradition that stretches back centuries.  These people, when left to do their job, use words as a precise tool.  When it comes to implementing EU legislation they are being asked to frame the detailed wording of laws that are broad brush in their intent. 

When it comes to employment law the EU tends to work on ‘framework’ legislation, leaving it for national parliaments to set out legislation that brings the EU purpose into effect.  In many other EU countries, the national legislation is essentially framework too, and much of the detail is filled in with legally binding management and union agreements at regional, local and sector level.

In the UK we don’t usually have legally binding agreements, so the poor Parliamentary draftsmen end up trying to draft a ‘one size fits all’ set of legislation.  This means that all the variations by sector, size of company, special circumstance have to go into the legislation.  In other legal systems it would go into the appropriate agreements and anyone not covered by it wouldn’t have to read it!

In the UK we have an instinctive feeling that everyone should be treated the same under the law.  So the idea of laws that apply only to employers and employees in a particular sector is very alien to us.  Our ‘gut feel’ that there should be some kind of level playing field results in complications, exceptions, and heartache.

We like the idea of consistency and often feel that is some measure of ‘fairness’ but we don’t like complexity.  Equally we don’t like laws that are not appropriate.

In an employment market that includes global players, national organisations, sector dominant employers, small businesses, and micropreneurs about to take on their first part time employee, it is almost impossible to have one simple, clear approach that suits everyone unless we go back to the EU ‘purposive’ approach.

We could have employment laws that say – “Do what is appropriate and fair give the size of your organisation and its needs, balanced with the effect your decisions will have on the individuals and the degree to which they have brought this on themselves”.

But that, of course, would not satisfy those who want to know in advance that they have done the ‘right thing’.  The law could be simply expressed in a ‘broad brush’ way, but although that would simplify the wording of the law, it would not simplify predicting how the law would apply to a particular situation.

The “red tape” exercise is not going to be able to resolve the core conflict between the two systems applying the UK – that express law in a ‘framework’ way, and in a ‘what do the words say’ way.  So the discussion seems to be taking place around the edges.  But it is not trying to tackle some central issues about whether we could find a consensus of what we meant by ‘fair’ or ‘appropriate’ or ‘relevant’ when it comes to dealing with people in the world of work.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, click here for our discussion on how far we can repeal current legislation and click here for the third blog for our discussion on how government guidance notes affect us.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

4 Comments

Filed under employment law, Equality Bill, free stuff

4 responses to “What I say, or what I mean? Red tape and employment law

  1. Pingback: Simplifying the complex – red tape and employment law | Employment law in a mad world

  2. Pingback: Red tape and fairness | Employment law in a mad world

  3. Rosetta

    Would you say that there is now a level playing field between employees and employers? For example, if we take into account the introduction of a fee deposit etc.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s