Under attack

Your employment rights are under attack from a variety of sources. Stay abreast of the changes and find out how the CSP is responding

Wrapped up under a campaign allegedly tackling ‘red tape’, the government is gunning for CSP members’ employment rights.

Whether it is about dismissal, discrimination and harassment at work, when your job is transferring out the NHS into the private sector, or access to justice via the courts, protections are being eroded.

In its Enterprise and Regulatory Reform Bill, the coalition government has already embarked on a series of initiatives to weaken rights that stem from domestic legislation. Meanwhile, rights deriving from European law are also in jeopardy.

Last year the qualifying period for unfair dismissal claims was increased from the current one year to two years.

In April this year, the minimum period for collective redundancy consultation (if 100 or more employees are to be made redundant) was reduced from 90 days to 45 days. And this summer fees will be introduced if cases are taken to an employment tribunal. In addition, a 12-month salary ‘cap’ on compensation for unfair dismissal will be enforced in the summer.

Changes to personal injury law were also introduced this spring. They will make it much harder for to take complex or difficult personal injury cases for work related illnesses or injuries.

Furthermore, measures designed to boost equality and dignity at work – from protections from harassment from third parties to rights to help prove discrimination at work – have also been rolled back.  

However, a bid to repeal the Equality and Human Rights Commission’s ‘general duty’ to promote a society free from discrimination and prejudice was overturned by Lords, showing that strong opposition can force a change in government policy.

The CSP continues to submit robust responses to government consultations on employment law, both separately and as part of the TUC, which has made ‘respect and a voice at work’ provided by unions and workplace rights one of its campaign priorities.

This is not an exhaustive update of changes, both introduced or planned, to employment law. Here are some answers to some frequently asked questions  in this area:

Q. I’ve been in my job for 14 months.  Surely they can’t sack me for no good reason?
A. The qualifying period to claim unfair dismissal at the employment tribunal was increased from one year to two years on 6 April 2012.

This means that if you were employed after this date you have no protection against losing your job for two years. The exception to this is for reasons of discrimination which have no qualifying period.

Q. But haven’t there’re been legal changes that will make it much harder to prove discrimination at work?
A. Yes. It is very difficult to prove discrimination and often the employer holds any relevant evidence.
A ‘statutory questionnaire’ – that will no longer exist after April 2014 – allowed a victim to question an alleged discriminator using a prescribed form with the responses (or indeed inferences drawn from evasive or incomplete replies) being admissible evidence to an employment tribunal.

Q. And what if I am harassed by a third party –a patient, for example?
A. Currently employers are liable for the harassment of an employee by a third party, such as a patient, where the harassment has happened at least twice, and the employer is aware but has failed to take reasonable steps to prevent it.

This will be removed next year. The government claims that it is unfair for employers to be liable for the actions of people over whom they have no control.  But the Equality Act provides plenty of flexibility for employers to take action and does not place unreasonable demands on them in providing acceptable working conditions for their staff.

Q. What’s Europe got to do with my rights at work?
A. The European Union issues directives which the UK, as a member state, must incorporate into domestic law.

This gives employees and workers many basic rights at work such as maternity leave and pay, redundancy pay, working time, holiday rights and equal pay. In the event that the UK leaves the European Union, for which there is growing pressure from within the Conservative party, this ‘safety net’ of employment rights will be removed.

Q. I’m being transferred out of the NHS – what’s happening to my rights under TUPE?
A. TUPE (Transfer of Undertaking – Protection of Employment) rights protect your pay and conditions if your employer changes and has come under a sustained attack by the coalition government.

A recent consultation by the Department for Business, Innovation & Skills has proposed, among other measures, to reduce the length of time that terms and conditions are protected for.

The CSP has submitted a robust response to the consultation and awaits the outcome.

Q. How much will I have to pay if I take my case to an employment tribunal?
A. From 25 July the employment tribunal service will charge a fee both for lodging a tribunal claim and for listing the case.

Claims are divided into two types. Type A claims are for straightforward sums such as holiday pay or redundancy.   Type B claims are more complex and relate to issues such as unfair dismissal and discrimination.   Type A claims will cost £160 to issue with a further £250 hearing fee. Type B claims incur a £230 issue fee followed by a £950 hearing fee.

Q. How much? Will the CSP be able to help?
A. The CSP is determined that members retain access to justice where they have been treated unfairly at work regardless of their ability to pay.

Where an employment case has good prospects of success (as assessed by CSP solicitors Thompsons), then the CSP will pay the issue fee and, if appropriate, the hearing fee in the form of a financial loan to the member. In the event that the case is successful then this money will be recouped from the damages awarded.

Q. Is there any good news?
A. Yes! In April, following widespread campaigning by the TUC and trade unions, including CSP, the government’s attempts to remove the general equality duty from the Equality and Human Rights Commission were stopped by the House of Lords.

Introduced following the McPherson inquiry into the murder of Stephen Lawrence, the duty ensured all public bodies show ‘due regard’ in their policies, practices and procedures to eliminate discrimination, promote equality and foster good relationships between different groups.

Widely regarded as a fundamental principle of equality law, this has been a major victory in the fight to protect vital equality rights.

Q. Is that it?
A. No, the CSP, together with other health unions, has also secured a ‘New Fair Deal’ providing rights to stay in the NHS pension scheme for NHS staff transferring out of the NHS in England.

This would not have been possible without the strike action over changes to the NHS pension taken by CSP members and other NHS staff in November 2011 and subsequent TUC-led negotiations.

All contracted out employees will now automatically stay in the NHS pension scheme.

This includes staff moving into employment with private companies, as long as they continue to provide NHS services, either wholly or mainly. More in Frontline (page 8, 19 June).

Q. Is there anything we can do about protecting our employment rights?
A. Workplace rights being rolled back are the result of collective campaigning by ordinary people and trade unions over the years.

So get involved in you union, the CSP, and any wider campaigns, for example, led by the TUC, so we can together fight for dignified, quality employment.  See About the TUC Campaign Plan  and Employer Rights Stop Employment Wrongs

Frontline Staff

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