A bee in our bonnet about Beecroft (2)

Yesterday’s excellent guest post on the Beecroft report is worthy of a second look, not least because of the potential political and socio-economic ramifications which might ensue if the UK Government adopts its recommendations.

At first glance, this looks like the perfect issue for allowing a coalition divide.  Vince Cable, the Business Secretary, has already dismissed the ideas contained in the report.  While the Prime Minister has been offhand about them, his backbenchers are positively slavering at the mouth. When Depute Prime Minister Nick Clegg had the temerity to criticise the proposals, he found himself scoffed at by Lord Beecroft who also denounced Cable as a “socialist who appears to do very little to support business.”

Yet, things are not quite so clearcut as the headlines would have you believe.

Lord Oakeshott, a Lib Dem peer, was on Newsnight last week stating that he had no problem with most of Beecroft’s recommendations, except for the one removing workers’ protection on grounds of dismissal:  no fault dismissal was, he said, the “economics of the madhouse“.

So the scene is set for the Lib Dems to make a lot of noise, and then when this key recommendation is dropped or at least, has its sharp edges smoothed, allowing the other proposals to go through, they can claim a moral victory and point to their benign impact on the worst excesses of the Tories.

Other recommendations will also go nowhere, though the Tory backbenchers are likely to use them as a welcome opportunity to highlight unhelpful EU influence and interference over supposedly sovereign matters.  Much of what Beecroft proposes – reducing parental leave measures and TUPE requirements – would need EU approval to be implemented, and that is highly unlikely.  Expect condemnation along the lines of Europe holding Britain back from the likes of the Daily Mail.

It’s a script that largely writes itself but ignores the wider issues implicit and indeed, explicit in the Beecroft report.

To read Beecroft in its entirety requires a strong drink in hand and lots of deep breathing to get to the end without imploding.  Here is class politics at its worst.   In sixteen slight pages, Beecroft cuts a swathe through over a century of hard fought and won employee rights and protections.

It is hard to escape the suspicion that dismantling the welfare state, by attacking the poorest, most vulnerable members of our communities, was only the start.  Or rather only picking up where Thatcher left off.  Now, it’s the turn of the most vulnerable workers – low-skilled, low paid, casual, young and also, women.

A significant number of the recommendations will impact on women, probably more so than men.  The exemptions for small business, removal of protections against sex discrimination and harassment, removing the need to conduct equal pay audits after a successful equal pay case, introducing fees and capping awards for tribunals (because many such cases concern wrongful dismissal in pregnancy) – all will hit women particularly hard.  And if per chance the changes to TUPE go through, given that these offer greatest protection to the lowest paid in service sector transfers, women are more likely to be caught.

Yet, the objection to these proposals is more fundamental than the practical considerations for particular groups.  For they represent a major shift in balance between employees and employers.  That balance is a delicate one, with employee rights in the UK already less protected than in many other Western states, but by and large, there is equanimity between workers and bosses.

If these changes are enacted – or even some of them – that balance will shift decisively.  Employers will in effect have a “sackers’ charter”, to pinch the phrase used by yesterday’s guest, with employees, especially in small businesses (conversely, one of the biggest employers in the private sector) having very few rights or protections.  Beecroft is in effect, calling for a back to the future approach, all in the name of economic growth.

This is a guise.  What he is looking for is the ability to squeeze more profit out of business.  These measures will not lead to more growth – they are likely to result in less productivity and higher costs. Constantly hiring and firing and managing an inexperienced, surly and miserable workforce actually costs more than looking after employees.

So if the proposals are not going to deliver the aim of enabling much sought after and highly elusive economic growth, what other purpose might they serve?  Just like welfare reform, the Beecroft report will assist in a re-ordering of socio-economic norms, where the conditions for inequality will flourish and the sides are clearly demarcated.  Trade unions will rightly be preparing to lead their troops into battle, for the old cries which once seemed anachronistic will be back in vogue.  Indeed, now would be a very good time to join a trade union.

And as the Tories and the Lib Dems at Westminster demolish, brick by brick, these tangible examples and experiences of Britishness – of the ties that bind – they might want to think on what that does for the constitutional debate.  If they take away all the commonalities of what constitutes a compassionate society in which ordinary people have rights and protections and share an identity – that reaches beyond the epithets British and Scottish – then they aren’t offering Scots many reasons to stay in the union.

Guestpost: A bee in our bonnet about Beecroft (1)

This anonymous guest post delivers a devastating critique of the Beecroft report, from the viewpoint of a trade unionist who is a Unite workplace representative.  The guest’s views are their own and not that of the union they are a member of.  Our guest is also keen to point out that they are not a legal expert and notes that “it would appear from the report, neither is Beecroft.”

There is nothing of merit in this report and much that will damage employees, and eventually employee/employer relations. Beecroft contains many red line issues for the Labour/Trade Union movement, largely as the result of the dismantling of hard won rights and the disproportionate effect it will have on low income workers and women.

The first myth to dispel is the idea of a causal link between lax labour market regulation and growth, which Beecroft implies, given that the UK has the third worst employment protection in the OECD below the US and Canada and still has sluggish growth at best.

Len McCluskey has already signalled that unions would consider illegal forms of protest and civil disobedience to protect employment rights. This was couched largely around the changes to tribunals and ballots for industrial action. I would assume Len’s position still applies: Prospect recently voted on a motion at their conference attacking Beecroft and the proposed employment tribunal changes.

I anticipate further votes and motions as other unions meet over the summer, a strategy to be developed by each union with the STUC and TUC. I also think that the attack on employment rights will loom large in the planned mobilisation on October 20^th.

It remains to be seen how far Len McCluskey can take his members along the road of protecting employment rights. For such a campaign to work, it needs to appeal beyond the committed core of activists, shop stewards and representatives. However, there is hope: the “68 is too late” campaign appears to be gaining traction with the general public.

How we might have laughed (or maybe not) at the David Cameron/Life on Mars posters before the 2010 UK general election, but the changes to employment law proposed pull us back to the 1970s. It seems nonsensical that reducing employment protection, encouraging poor management and making people feel less secure at work are ways to generate growth.  In fact, it will probably restrict demand.  Business wants the banks to lend, lower taxes and to increase demand (not that I agree with the second one) for their products to grow, not the power to sack on demand.

The current balance is about right and it works. The coalition and in particular the Lib Dems would do well to remember the dictum, “if it ain’t broke don’t fix it”.  The legislation that currently exists has been developed over decades to improve the balance between the rights and responsibilities of employers and employees and have created an environment where companies manage and develop staff, rather than use the threat of dismissal to motivate/inspire fear (delete as appropriate).

So why have I got a bee in my bonnet over Beecroft?

 

Compensated No Fault Dismissal

This recommendation removes constructive dismissal, allowing no fault dismissal to largely replace redundancy. It gives carte blanche for employers to sack without reason or recrimination unless such a sacking triggers a ground for unfair dismissal. Beecroft points the finger at public sector managers, claiming they are more reluctant to dismiss than those in the private sector without producing evidence to support this contention.  My experience suggests managers in both sectors are reluctant to dismiss, viewing it as a last resort. The no fault dismissal allows compensation only of up to £12,000 dependent on length and type of service.

This proposal would effectively tear up the Employment Relations Act and subsequent amendments to improve workers’ rights under it. Yet, it ignores the reality that poor employee performance is often, at least in part, attributable to poor management. So rather than tackle that condition, Beecroft gives managers a sackers’ charter which will allow poor management to flourish. This would be bad for business, demand, growth and people who would have to work with the constant threat of being sacked hanging over them like a sword of Damocles.

There already are powers to dismiss as a result of poor performance but they are often used improperly or inconsistently by employers, resulting in tribunal claims. Performance management of staff is critical to make the most of them and that includes reward as well as discipline, something which Beecroft neglects. As a wise aunt once said “you catch more flies with honey than with vinegar” and Beecroft’s proposals distil only vinegar, attaching blame to employees above all else.  He also seems not to understand what probation periods are for.

Also of concern is the extension of tribunal qualification to two years. This will also have a disproportionate effect on women dismissed in pregnancy (unfairly) and on the ability of individuals to challenge the grounds for dismissal in the first year of employment.  It represents a substantial erosion in employee rights and could lead to the reinstatement of poor employment practices that the availability of tribunals at one year had begun to weed out, particularly keeping the minority of unscrupulous employers honest.

 

Exemptions for Small businesses

Beecroft proposes that small businesses should be allowed to opt out of statutory duties on unfair dismissal, pension auto-enrolment, the right to request flexible working (other than for parents and carers, which is required by a European Directive), flexible parental leave, licensing for employers of children, gangmaster licensing and equal pay audits.

The most worrying of these, in light of the Morecambe Bay tragedy, is the opt-out of gangmaster licensing. All gangmasters tend to be small businesses with a highly casual workforce, and employee abuses  – spurious deductions from pay, below minimum wages, employing illegal immigrants, flouting health and safety law – tend to have occurred as a result of the lack of a licensing system. This area of employment, together with the employment of children, require regulation to provide some protection to the most vulnerable workers.

The withdrawal of the ability to flex parental leave between parents might work against small companies, as it effectively forces mothers to take all their maternity leave instead of sharing it with their partner.  Having worked in a small company, employees tend to take a more pragmatic approach to matters like parental leave: many individuals often elect voluntarily not to take all their entitlement but that does not mean they should lose their legal entitlement to such protections and conditions.

Pension auto-enrolment might be the bane of employers, but it is good news for employees everywhere, in their retirement.  Over half of the UK population has no provision outside of the state pension;  to scrap this measure for small companies is short-sighted and will result in individuals suffering poverty in their old age, putting additional strain on services and society.

Perversely, this recommendation could make small companies – the majority of firms in the UK economy – less attractive places to work.  Far from enabling growth, it could stifle it.

 

Discrimination law

The rescinding of third party harassment provisions in the Equality Act 2010 would mean that employers will no longer be responsible for preventing staff suffering discrimination from colleagues or customers.  This statutory protection has always been about establishing a safe environment for all employees, free from all discrimination:  removing it would represent a retrograde step.

Beecroft suggests that it is “naive in the extreme” to think that discrimination can be prevented through policies on dignity at work, bullying and harassment for staff.  What is naive is thinking that rescinding such protections will do anything other than increase the potential for discrimination.

The report also recommends the re-application of the default retirement age at a higher age than 65 to enable companies to remove underperforming older workers and to encourage hiring older workers at the same time. Yet, it was EU law on age discrimination that removed the default retirement age; it remains to be seen if the UK has the power to reinstate it.

The retention of older people in the workforce can present a barrier for younger people but labour statistics show that older people are suffering some of the highest levels of unemployment currently.  Reinstating the default retirement age without researching the implications could be counter-productive at both ends of the employment age scale.

 

Employment Tribunal process and awards

The key changes here are the introduction of fees, capping of loss of earnings awards and the introduction of a reduction in basic and compensatory awards. The report also suggests that the use of no-win, no-fee arrangements for tribunal claims be reviewed.

Beecroft recommends fees of between £200 and £750 for claims up to £29,999, depending on their size and complexity, and £3,750 for higher claims. The ability to pay would be based on wealth as well as income.

These costs would deter many from taking up potentially valid tribunal claims (even though in practice many would see the fees remitted if they met income and wealth criteria). This is a policy that puts a price on access to fair treatment and should be opposed vigorously by the trade unions.

By focusing on preventing frivolous tribunal claims, Beecroft is ignoring reality, in that very few matters reach tribunals, with most cases being resolved locally. Tribunals are a necessary last resort, for which the bar is already relatively high – many claims fall due to legal issues – and as such should remain free at the point of making a claim. In effect, he is trying to ‘solve’ a problem that does not exist.

Currently, certain tribunal awards are uncapped, including those relating to discrimination.  Beecroft would change this, hampering tribunals’ freedom to pay appropriate compensation and establish deterrents against future errant behaviour.  Again, this is a measure which would reward poor management at the expense of employees.

 

TUPE

The report recommends changing TUPE protection to one year and lobbying the EU for significant change, to allow, inter alia, an immediate redundancy option post transfer.  Currently, TUPE protects employment terms and conditions of employment for up to two years when a company or organisation changes ownership. After that, employers can negotiate/enforce changes to contracts of employment to harmonise terms. In its current form, TUPE provides a reasonable time to allow for adjustment and negotiation and to protect lower paid employees from the effects of contractual changes for two years.

Reducing TUPE to a year will remove protection of working conditions more quickly, such as pension provision, holidays and contracted hours.  As TUPE transfers tend to protect lower skilled and paid roles eg dinner ladies, refuse collection, personal care, transaction finance/HR, it is easy to see how Beecroft’s proposal could hurt those workers on low incomes hardest.

 

Conclusion

The Beecroft recommendations signal an open declaration of intent by the UK Government on normal working people. Socio-economically the changes would affect the most vulnerable and poorer workers disproportionately.  Many of these are women.

And while the trade unions can be expected to fight these changes, what of employees – often poorer – who work in non-unionised workplaces.  Already, they are often viewed as ‘disposable’ due to their skill level and are often unaware of their rights.

Consequently, they are most at risk from the impact of poor management and employment practices.  Exempting small businesses from many key employment protections makes employees here – in the vast majority of workplaces across the UK – much more vulnerable to poor practice.  The same applies for temporary contract workers.  If this sackers’ charter goes ahead, expect more temporary and fixed term contracts and sackings before twelve weeks to prevent employees assuming rights and protections.

For all these reasons – and more – Beecroft is wrong.  He has taken no account of the potential human impact of his policy advice nor has he provided evidence to back up his economic arguments.

 

 

 

To succeed, Yes Scotland needs social coherence

Sir Harry Burns is not your atypical Chief Medical Officer.  He’s on a mission, convinced that evidence of our continuing health inequalities shows that the tried and tested methods of service design and delivery need to change.  If you’ve never heard him speak, I would heartily recommend you do.  There are worse ways to while away an hour, and I guarantee you’ll come away thinking, if not necessarily agreeing.

Indeed, I’d commend Sir Harry’s philosophy to those in charge of the Yes Scotland campaign.

Yes Scotland is aiming to be “the biggest community-based campaign in Scotland’s history, designed to build a groundswell of support...”.  The Sunday Herald takes a closer look and suggests that the campaign is borrowing heavily from the approach used by Obama to deliver success.  At its heart is the intention to build relationships – through local and national ambassadors, groups, streetwork, local communities and communities of interest and “neighbourhood by neighbourhood and community by community“.

I make no apology for repetition of the word “community”: it trips off the tongue of those leading the Yes Scotland campaign and is at the heart of what Sir Harry Burns proposes.

His view is that if we are to successfully address Scotland’s health inequalities, we need to focus on “behaviours and influences and also the social factors which impact people’s health and wellbeing, especially in their early lives”.  By empowering individuals and communities to take control of their futures (and by definition, the centre and the state taking a more hands off role), sustainable local solutions to local problems can be found.  In arriving at this proposition, Sir Harry is fond of citing Aaron Aronovsky’s theory of social coherence.

This sense of coherence has three components:

Comprehensibility – a belief that things happen in an orderly and predictable fashion and a sense that you can understand events in your life and reasonably predict what will happen in the future.

Manageability – a belief that you have the skills or ability, the support, the help, or the resources necessary to take care of things, and that things are manageable and within your control.

Meaningfulness – a belief that things in life are interesting and a source of satisfaction, that things are really worth it and that there is good reason or purpose to care about what happens.

You can see instantly echoes of this in what the Yes, Scotland campaign is setting out to do – and indeed, in the SNP’s messaging over the years – but you can also see its flaws and weaknesses.

If people who are less opposed to the idea of independence and more amenable to being persuaded are to be convinced to vote yes, they have to be supported to arrive at this destination by their own accord.  They have to understand what independence means – not hard and fast policies, but the idea of possibility, as gloriously explained by Ian Bell and David Greig this week.  They also have to believe that independence – and independence as a successful social and political construct for them and their families – is feasible.  And they have to believe that engaging in the debate and ultimately voting yes is in their interests and that they should care about the outcome of the referendum.

By asking people to sign a declaration at this stage, Yes Scotland is still talking to its own community.  The response has been astonishing but the declarers are largely confirmed yes voters, nosy journalists and avowed Unionists who think the best way to keep tabs on what the campaign is up to is to sign up.   It might be a necessary first step but there is a risk that many undecideds already feel excluded from the process.

As the launch bore out, the Yes Scotland’s community of interest is pitifully thin at present, comprising largely white men of a certain age.  Everyone, everywhere has commented on the lack of women involved in the launch event on Friday;  thankfully, there are more in the excellent Yes vide0, but to launch a community-based campaign, by marginalising the voices of women, as well as people from ethnic minority backgrounds, New Scots, disabled people and even, young people, highlights the campaign’s flaws in all their monochrome glory.  And these issues are more than presentational:  the latest YouGov poll suggests that only a quarter of women intend to vote yes in the referendum.

The campaign’s aim of taking the debate to communities and individuals through ambassadors is on the right track, but when a sizeable number of those supposed ambassadors think the way to persuade people to vote yes is by talking to them in pejorative language and beating them into submission through the strength of their convictions, the campaign has a problem.  These virulent yes-supporters need to be sidelined – and their ringleaders in the SNP, in particular, silenced – otherwise the persuadables will become utterly disengaged and opt ultimately to stay at home.

By starting the campaign by pitching to Labour voters is essentially to treat the campaign just like an election one.  Yes, it helps those in the persuadable column who normally vote Labour and identify with the labour movement, to see that others of their ilk are supportive of independence but this tactic is one for further down the timeline.  What needs to happen now is a process of empowerment, so that these voters come to see independence as achievable, manageable, tangible, meaningful and crucially, something in which they have a stake.

To do this requires more than marketing techniques and powerful online tools:  it requires real community engagement.  The campaign team needs to involve people – like Sir Harry Burns – who know and understand what it involves and how to do it effectively.

However, the biggest weakness to be overcome is one of control.  To succeed, Yes Scotland has to cede control to the people it is trying to persuade to vote yes, yet, the SNP has achieved its greatest successes in recent years by being absolutely in control of the strategy, the tactics, the message, the activity, the pace and the tone.  Such discipline has been necessary, because of the array of opposition all around it.  While that opposition hasn’t even begun to warm up yet, those in charge of Yes, Scotland are alert to what is heading their way.  Their instinct will be to apply greater control to the campaign as we get closer to 2014, when that is exactly the time for it to trust that its engagement activity has done its job and let go.  It is a dichotomy that the movement and campaign must resolve.

But, as Yes Scotland’s organisers know, this is not just another election campaign.  To persuade a majority of Scottish people to vote yes will require enabling them to develop a real sense of coherence about independence.  In particular, it will require real engagement with communities – geographically and socially – who currently feel excluded from the debate and have a very deficit-based approach to the idea of independence.

To win, will involve empowering these individuals and communities to believe in the possibilities independence offers; that they – and not politicians or the establishment – will lead where Scotland goes after a yes vote; that this process is about them and focusing on what they can achieve; that they – we – have the skills and resources to make independence a success; that when they look at the horizon beyond independence, they can see land and not just an indistinct mass shrouded in mist.