Tag Archives: Regulation

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

Bonfire of the delusion – do we have the power to repeal employment law?

Delusions about employment law

The government has announced more consultation on employment law, this time on TUPE and collective redundancies.  Both sets of legislation derive from EU directives.

In our last blog, we looked at whether we are in fact over-regulated and over-legislated.

a)            Assumption: in the UK we retain the power to repeal legislation

The thing most politicians don’t seem to grasp is the very limited extent of manoeuvre we have, even where we want to repeal legislation.  A significant amount of UK legislation relating to employment is the implementation of EU Directives.  Short of leaving the EU (which is another discussion) we do not have the power to say “let’s not have any legislation about this”.

We can take out any additional burdens imposed at UK level but we can’t abandon the whole thing.  If we want to live in an unregulated employment environment, we need to leave the EU.  Otherwise, we need to learn to live with a regulated environment.

We can lobby at EU level for changes to laws, even the abolition of laws, but in a large group of countries, our view will not automatically be adopted (even if we have one national view to present).

The only way forward for an individual employer is to live with things as they are and make the best of that.   Lobbying may work in the longer term, but we need to stop deluding ourselves that all this ‘law’ is going to disappear by magic of governmental pen.

I talk to clients quite regularly who say – “this shouldn’t exist”, “this shouldn’t be happening to me”.  A successful business strategy has to be founded on how things are, not on how you think things ought to be.

Employment law is no different to all the other elements that are needed to make a successful business.  Whilst unfettered freedom can seem like a good idea, it is unlikely we will arrive at an unregulated climate for business, and we all have to live and trade within certain legal limits.

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

6 Comments

Filed under employment law, Equality Bill