In the wee small hours of this morning I was pottering up the A303 to Basingstoke (sunrise over the Festival Centre is well worth seeing) and heard the Secretary of State for Business, Energy and Industrial Strategy extolling his departments “Good Work Plan”. It sounded impressive but I found myself wondering about its substance so I looked it up. It turns out the plan is in fact a 5 page press release the headlines of which are:
- Workers are to be given new day-one rights to holiday and sick pay. That sounds good but they’ve had a right to holiday pay since 1998 through the Working Time Regulations and workers already qualify for SSP if they’re liable for Class 1 NIC.
- “Reforms will ensure employment law and practices keep pace with modern ways of working created by rapid technological change.” That’s a super sound-bite but I have a concern it raises expectations which the law will struggle to meet. In this context the law is reactive and the Uber case is a good example of how it works. Uber launched its service in London saying that its relationship with drivers was one of agency not employment. This was challenged and we now know what the ET and the EAT made of it. The point is that the law demonstrated it was up to the challenge and it did so with a fair amount of common sense.
- “…the government will be accountable for good quality work as well as quantity of jobs…" That’s an aspirational statement which seems to mean a right “to request a more stable contract, providing more financial security for those on flexible contracts”. Of course the devil will be in the detail of how the aspiration is translated into practice bearing in mind the government also says that flexibility is the cornerstone of the UK labour market.
While it’s easy to dismiss the press release as puff it seems to me it’s real significance is that it launches four concurrent consultations. These are on the enforcement of employment rights, agency workers, measures to increase transparency in the UK labour market and employment status. I take that as a sign the government is willing to grapple with the underlying issues raised in last Autumn’s Taylor report. These go much deeper than technical questions of law reform. They take us into more fundamental and much more difficult questions concerning economic power and social justice – and that’s before we even begin to think about the supra-national elements. Remember that Uber’s operating model in London depends on rights to an app vested in a Dutch corporation and when another aspect of the Uber operation was referred to the CJEU by the Commercial Court in Barcelona, no fewer than 8 EU national governments and the European Commission intervened. If the government can cut that Gordian knot todays puff will turn out to have been a veritable gale.