Name of weekly column: Speechly Speak

Name of this week's contributor: Anne-Marie Balfour, solicitor, Speechly Bircham

Last week the Government announced new plans to protect vulnerable workers in what it described as “dark corners of the labour market where rogue employers seek to mistreat their workers”.

The plans include:

• A single telephone helpline for vulnerable workers to report abuses to enforcement agencies.
  
• A £6million campaign to raise awareness of employment rights and how to enforce them.
  
• Establishing a Fair Employment Enforcement Board to promote collaboration between enforcement bodies, including HM Revenue and Customs, the Employment Agencies Standards Inspectorate, the Gangmaster’s Licensing Authority, the Health and safety executive and DEFRA. 

The stated aim of these plans is “to protect those who are fearful or so desperate to earn a living that they are open to exploitation enforcement of laws which exist to protect vulnerable workers”. The Government has been keen to point out that the plans are in the interests of reputable businesses that treat their workers fairly and lawfully but are undercut by unscrupulous competitors.

Exploitation of vulnerable workers for an unfair competitive advantage is, of course, a very serious matter that needs to be addressed. Yet the plans are unlikely to address unfair competition from the most unscrupulous employers of all – those who employ workers who do not have (or are led to believe that they do not have) the right to work in the United Kingdom. 

Such workers are unlikely to be reaching for the phone to call the new telephone helpline. At this stage it is not clear whether the Fair Employment Enforcement Board will be collaborating directly with the Border and Immigration Agency (and of course, separate measures have recently been introduced to tackle illegal workers and their employers). However, illegal immigrants using the helpline may find themselves deported. 

Will the new plans cause a problem for genuine cases?

The Government’s message is that employers operating lawful employment arrangements have nothing to worry about. In terms of prosecution, that may be correct. In terms of increased litigation and administrative burden, it may not be quite so correct. 

The publicity generated by the new scheme is likely to provoke an increase in grievances, employment tribunal claims and inspections, and amongst the genuine deserving cases will be some nuisance-motivated ones. Law-abiding employers may find the telephone helpline is used by disgruntled employees looking to create a nuisance for the employer. Many Home Office ‘raids’ on businesses relating to allegations of employing illegal workers are reported to be the result of a “tip-off” by a disgruntled ex-employee.

Applying the law

The new plans focus on working time and the national minimum wage. Over the past ten years since these laws came into force, we have seen that, whilst the concepts they enshrine are simple, the application of these laws can be anything but simple. Employers will need to be ready to give their workers satisfactory answers to questions on lawful, but quite complex, arrangements, for example calculation of leave and pay for irregular shift workers and the way in which bank holidays affect part time workers.

Many of those who use the telephone helpline will have made a protected disclosure entitling them to the protection of existing whistleblowing laws. It will therefore be important that those who have, or who are suspected to have, used the telephone helpline are not subjected to detriment or dismissal. 

The establishment of the Fair Employment Enforcement Board is another step in a noticeable cultural shift in the enforcement of employment laws. In the past, it has been very much down to the wronged individual to enforce employment laws. Whilst the external agencies have had powers, they have not widely exercised them. 

The Equality Bill, due in the autumn, will promote enforcement of anti-discrimination laws by external bodies such as the Equality and Human Rights Commission. The Government’s plans for the Fair Enforcement Board suggest that enforcement agencies will be raising their profiles in this respect.

The impact on employers

Collectively, these measures are likely to have a big impact on the way many employers view litigation risks. Currently, employers know that many workers are deterred from complaining to an employment tribunal by a lack of awareness, time, money and tenacity. Often, if a claim is made, a relatively small payment attached to a confidentiality clause is the end of the matter. But if external enforcement agencies are involved, the burden on the individual will be relieved.  

The bigger picture will be examined so that, where one worker reports concerns, arrangements for the wider workforce will also come under scrutiny. Some enforcement bodies can also impose penalties that an individual cannot, including criminal sanctions.

Do you think the single telephone helpline is in the interests of law-abiding employers?