Calorimetría Diferencial de Barrido (DSC)
5. INFLUENCIA DEL ESTIRENO
5.4 MÓDULO ELÁSTICO
Over the last 40 years employment law has posed a challenge to successive governments, each with their own agenda and rationale for introducing a raft of legislation (Davies, 2009). Although the governments believed that the legislation would be beneficial to employers, employees or both (Gennard and Judge, 2010), individual employment legislation has attracted numerous critics, including Taylor and Emir (2012:18) who have outlined their criticisms from a micro and macro perspective. From a micro perspective, employment law fails to meet its own objectives in practice, as it burdens employers but does not offer satisfactory protection for the employee. For example equal pay law has failed to readdress the imbalance of pay between men and
women. Employment legislation has also been criticised for being poorly
drafted and lacking clarity. The Transfer of Undertaking Protection of
Employment (TUPE) Regulations (1981, 2006) are still riddled with ambiguous practices and continually evolve through ET judgments. Another criticism is that employment law is too complex, which has led to confusion over workers’ rights and employers’ responsibilities. Employment status is a tangible example, one that is still being discussed within not only the tribunals but within government revenue and tax departments. Willey (2012:46) has outlined six categories that employment tribunals use in determining the employment status. These are:
1. Common law test 2. Mutuality of obligation 3. Personal service 4. Duration of work 5. Contract
6. Remuneration
The increased regulation of employment has been viewed by employer organisations such as the Confederation of British Industry (CBI), the Institute of Directors (IoD) and the Small Business Council (SBC), as affecting competitiveness, the creation of jobs and also detrimental to the interests of employees (Taylor and Emir, 2012). All of these issues are enveloped by the matter of costs, in particular the expense of implementing the regulations. In
the CBI’s 2010 report on ‘Making Britain the place to work – An employment
agenda for the new government’ they have calculated the total cost of employment legislation to the UK economy over the period 1998 – 2009 to be more than £72 billion. Expenditure has originated from direct costs such as national minimum wage and increased holiday entitlement, ramification costs, such as when an employee exercises their employment rights, for example maternity or parental leave and the organisation has to employ staff on a temporary basis. Costs are also incurred from the organisation’s understanding, interpreting and complying with the regulations and finally the costs of litigation such as tribunal awards and legal costs (Taylor and Amir, 2012; Pilbeam and Corbridge, 2010; Gilmore and Williams, 2009). Although cost is a major factor in the negative attitude towards regulation of the
employment relationship, other issues have been raised, in particular the
negative impact upon employees and the ‘unintended consequences’ of
legislation. A report by the IoD highlighted this problem:
“…it is clear that many business people are very supportive of maternity benefits and rights (nearly a fifth of members provided more than the statutory maternity benefits in terms of leave or pay) but there is a clear warning from our survey. Already 45% of our members feel that such rights are a deterrent to hiring women of prime child-rearing age. If the regulations are made even more burdensome then employers will be even more reluctant to employ these women.”
(Lea, 2001:57).
Gilmore and Williams (2012) label this the ‘law of unintended
consequences’ and argue that when employers are faced with selecting between an equally qualified man and woman, they may opt to select the man due to the employer calculating the risk of employing a woman who may bring about a claim for sex discrimination. The argument around anti-discrimination law also poses the question whether the legislation was introduced to facilitate multi-million pound claims by women who might be more able to look after their own interests, or whether its intention is to protect and enhance the prospects of people with less individual power within the job market (Gilmore and Williams, 2012). The high profile case of female city bankers, such as the £7,500,000 case pursued and lost by Stephanie Villalba against the
investment bank, Merrill Lynch (Villalba v Merrill Lynch & Co Inc. and others
UKEAT/0223/05; [2006] IRLR 437), highlights the problems derived from employment regulations (Gilmore and Williams, 2012). The argument for cases such as this, is that although the awards sought were extraordinarily high, the costs to the state only involved a single ET hearing as well as a single EAT hearing, and it did clear up what seemed to be contradictory earlier decisions of the EAT on other cases which formed precedents.
The final concern regarding employment regulation is the requirement for employers, through stringent procedures, to introduce bureaucratic and system based approaches to managing people (Taylor and Emir, 2012;
Dismissal Procedures (2004) is a prime example and although these procedures were repealed in 2009 with the Gibbons Review stating that:
“…rather than encouraging early resolution, the procedures have led to the use of formal processes to deal with problems which could have been resolved informally.”
(Gibbons, 2007:8) The ACAS Code of Practice still recommends that employers follow the same process as outlined in the statutory disciplinary and dismissal process. Therefore the use of formal processes in cases where other permutations would be more suitable, can affect the climate for resolution, make all parties suspicious and enhance the contemplation of applying to an ET at an earlier stage Gibbons, (2007). The BCC (2010) has identified a number of solutions to the problems outline above, which covers both the legislation and the process around the enforcement of the legislation. In the 2010 report, ‘Employment Regulation: Up to the job?’ the BCC outlined a number of proposals:
New employment legislation should not impose process
requirements on Small and Medium Sized Enterprises (SME’s)
- The BCC argue that 25.2% of businesses in the UK have
less than 50 staff compared to 0.8% which have 50 staff or more, and that small businesses with less than 50 staff employ over a third of the workforce. Therefore they have the potential to create even more jobs in the right conditions, and parliament should take this into consideration when devising new or amended employment legislation
Barriers to taking on interns must be broken down
- The BCC believes that a new category of worker should be
created which clarifies the legal position of the intern
If an employer reasonably believes an employee has committed
- The BCC recommends that an employer should be able to
dismiss an employee for gross misconduct even if the offence was not explicitly included in their contract
A fast track conciliation scheme for employees claiming less than
£3,000
All claimants who have not received professional advice must go
through their ET1 form with ACAS before submitting their claim
- This would act as a ‘sifting’ process whereby claims with no
basis would be prevented from proceeding further
Tribunal reporting should be restricted in the same way as reporting
in criminal courts
- Respondent organisations have sometimes settled a claim,
even though they know that the claim is not founded or that they always act professionally. Repercussions from salacious reporting could far outweigh damages awarded at a tribunal
Claimants should have to pay the same fees to launch a claim as in
the civil courts
- The BCC recommend a small charge should be made to
access the ET system following the same principle as the civil courts
These recommendations are not very radical and are certainly conventional in terms of how businesses have advocated for change. In fact
some of the proposals were already in place, for example the Information and
Consultation of Employees Regulations (2004) was only deemed applicable for organisations with over 50 employees. The final recommendation has now come into force through the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. It is too early to assess the impact of fees on applications although there has been a surge of claims before fees were introduced in July 2013 (25,000 in June 2013 and 17,000 in July 2013) and a steep reduction immediately afterwards (7,000 in August 2013 and 14,000 in September 2013). The immediate impact does look somewhat drastic
however, as the quarterly statistics from October – December 2012 and 2013 have seen a seismic reduction in the number of claims submitted in 2013 compared to the previous years figures:
Fig. 2.4 – ET Quarterly Statistics Oct – Dec 2011-12 and 2012-13 – Part 1
Fig. 2.5 – ET Quarterly Statistics Oct – Dec 2011-12 and 2012-13 – Part 2
Abbrev. Full Title Abbrev. Full Title
NMW National minimum wage WST&C
Written statement of terms and conditions
PTWR Part Time Workers Regulations Others Others
DGSO Discrimination on grounds of Sexual Orientation DD Disability discrimination WSRD
Written statement of reasons for
dismissal RFTI&C
Redundancy – failure to inform and consult
DGRB Discrimination on grounds of Religion or Belief RP Redundancy pay
WPS Written pay statement SD Sex discrimination
TUPE Transfer of an undertaking - failure to inform and consult EP Equal pay SaD/UD-
Pregnancy Suffer a detriment / unfair dismissal - pregnancy4 BoC Breach of contract
AD Age Discrimination UD Unfair dismissal
RD Race discrimination Unauth. Ded Unauthorised deductions (formerly Wages Act) WTD Working Time Directive
Table. 2.4 – ET Quarterly Statistics 2011-12 and 2012-13
Oct - Dec 2012-13 Oct - Dec 2013-14 % change
National minimum wage 111 36 -68%
Part Time Workers Regulations 173 151 -13%
Discrimination on grounds of Sexual
Orientation 174 43 -75%
Written statement of reasons for dismissal 182 72 -60% Discrimination on grounds of Religion or
Belief 230 92 -60%
Written pay statement 332 73 -78%
Transfer of an undertaking - failure to inform
and consult 335 158 -53%
Suffer a detriment / unfair dismissal -
pregnancy4 371 235 -37%
Age Discrimination 673 248 -63%
Race discrimination 1,173 500 -57%
Written statement of terms and conditions 1,447 287 -80%
Others 1,566 4,157 165%
Disability discrimination 1,915 807 -58%
Redundancy – failure to inform and consult 3,292 417 -87%
Redundancy pay 3,411 831 -76%
Sex discrimination 4,342 980 -77%
Equal pay 5,807 998 -83%
Breach of contract 7,803 2,486 -68%
Unfair dismissal 12,211 4,287 -65%
Unauthorised deductions (formerly Wages
Act) 12,602 3,977 -68%
Working Time Directive 21,972 3,596 -84%
Total 80,122 24,431 -70%
These statistics are very drastic, and it does present concerns that fees have prevented potential claims being submitted (Walden, 2013). Further research will have to be carried out beyond this particular study once the relevant data is available, to ascertain why the number of cases has fallen so drastically.
There are many supporters of employment regulation who categorically disagree with the arguments outlined above. Although written in 1983, Hepple concluded that:
“…an underlying trend towards the juridification of individual disputes… matters which were once entirely within the sphere of managerial prerogatives, or left to collective bargaining, are now directly regulated by positive legal rights and duties.”
(Hepple, 1983:393-4). Hepple used unfair dismissal as a demonstration of how employment regulation has benefited employees through changing management behaviour and the work place system as a whole (Lewis, 1986). Whilst Taylor and Emir (2012) argue succinctly the case for employment regulation being a basic human right and encompassing social justice, but it is the arguments against
the accusations of ‘cost’ associated with employment regulation, which need
to be analysed. Deakin and Wilkinson (1996) argued that an essential ingredient of a successful economy is fair treatment for the workforce based on decent wages and conditions including employment laws in line with best international practice. They concluded that Britain can not compete with the Asian Tiger economies on the basis of low wages and non-existent rights at work.
The Institute of Employment Rights (IER) study by Dubinsky (2000) concluded that the boosting of managers’ right to manage, rather than utilising collective arrangements, has led to the intensification of work, reduced terms and conditions, redundancies and unemployment. Despite the increase of employment legislation and the threat of employment tribunals, Dubinsky’s (2000) study argued that managers were still being allowed to act incompetently, in the process reducing workplace co-operation and creating conflict. Davies and Freedland (2004) and Werhane, Radin and Bowie (2004) believe that protecting workers through employment regulation can have a positive impact upon the financial performance of an organisation. Werhane
et al., (2004:144) even recommends that employers “recognise and celebrate employee rights”. Although aimed at a US audience, Pfeffer (1998) outlines seven characteristics which organisations can build upon to ensure no legal redress:
1. Employment security.
2. Selective hiring of new personnel.
3. Self-managed teams and decentralisation of decision making on the topic principles of organisational design.
4. Comparatively high compensation contingent on organisational performance (equitable competitive pay).
6. Reduced status distinctions and barriers, including dress, language, office arrangements and wage differences across levels.
7. Extensive sharing of financial and performance information through the organisation (transparency).
All of Pfeffer’s characteristics are reflected in some permutation within employment legislation and they are not only designed to improve the success of the organisation but also ensure the security of the worker. Individual employment regulation has tried to force employers into acting in this manner, what Supiot (2001) refers to as a shift from passive protection to active security.
Despite the introduction of individual employment law, the employment relationship continues to highlight the presence of conflict between both parties. The next section will analyse the role of conflict within the workplace, outline the various theories that have helped shaped the thinking around this topic area and evaluate how ET’s have become an important vehicle for resolving work place conflicts.