Securing Employment Rights in an Age of Austerity

Transcription

1 Securing Employment Rights in an Age of Austerity ESRC Seminar Series Morag McDermont, University of Bristol Nicole Busby, University of Strathclyde

2 Outline of presentation Background Review(s) of Employment Tribunal system The changing legislative environment Legal consciousness and researching unrepresented workers The pilot study: Barriers to Justice Advice Agencies: New Sites of Legal Consciousness Citizens Advice Bureaux and Employment Disputes

3 Review(s) of Employment Tribunal System 2001 Consultation Routes to Resolution 2007 Gibbons Review Dispute Resolution in Britain Revised ACAS Code 2011 Consultation Resolving Workplace Disputes Review of Employment Law (ongoing) The Beecroft Report The Red Tape Challenge

4 Employment Tribunals under Attack Vince Cable called for radical reform to the employment law system far too costly, timeconsuming, and complex for employers too easy [for employees] to make unmerited claims George Osborne "We respect the right of those who spent their whole lives building up a business, not to see that achievement destroyed by a vexatious appeal to an employment tribunal. So we are now going to make it much less risky for businesses to hire people."

5 Employment Law Reform From April 2012 the qualifying period for unfair dismissal claims increased from two years to one year. Fees regime to be introduced for those lodging ET claims from April 2013

6 Employment Tribunal Cases Source: ACAS

7 Researching Unrepresented Workers Pilot study Inadequacies of quantitative surveys Unrepresented workers are often vulnerable someone working in an environment where the risk of being denied employment rights is high and who does not have the capacity or means to protect themselves from that abuse. ( Success at Work: Protecting Vulnerable Workers, Supporting Good Employers: A Policy Statement for this Parliament (DTI 2006, at [25])) Giving voice to unrepresented workers Citizens Advice Bureaux First destination for advice on employment disputes Key site for the shaping of vulnerable workers legal consciousness Pilot study 10 interviews with CAB clients who submitted ET1 form Intended to lead to case tracking study

8 Pilot study: profile of interviewees

9 Pilot study: findings ET process overly formal and technical CAB acted as translators of language and procedures into formulations vulnerable workers could understand Power inequalities: case management phone call [judge was] 100%, probably 110%, behind me, which was, that was the only time I felt, wow... someone believes what I m saying.... if it did go to court, I think I would a had his support, because he was actually telling the other guys that he thought it was pathetic. (Interviewee 1)...she would say, Yes, sir, or Yes, something,.... You know like they ve got to use, they talk a certain way, and they use certain words and stuff. Of course, I just felt like, oh my God, I m going to lose this case! (Interviewee 2)

10 Pilot study: findings (2) Legal representation at the ET considered necessary: Someone told me I could come and represent myself, but... I said myself, it looks stupid if I go and represent myself. And uh, the company got, got this solicitor, and I d be tied into knots. So therefore, I thought no.. I ll just cancel the whole thing... (Interviewee 9) Acas : site of ADR Reframing of cases from rights to needs problematic Tenet of impartiality was disempowering Pragmatic rationalities of managerialism Prioritised positive clearance rates, swift resolution Often felt like bullying to unrepresented workers

11 Advice Agencies: New Sites of Legal Consciousness Citizens Advice Bureaux and Employment Disputes ERC Starting Independent Investigator grant Legal consciousness Rejects a law first enquiry Law in everyday life In-depth qualitative investigation Case-tracking research project Impact of legislative changes Mixed methods research Survey before and after ET fees

12 Research aims Understand the role played by CAB advisors Observe meetings between CAB advisors and clients Observe and talk with CAB staff and volunteers Capture implications of the varying levels of assistance and resources offered by bureaux Pro-bono solicitors Specialist legal advisers Local authority-funded solicitor (Scotland) Map interaction with Acas, ET judges, other legal players Participants complete diary of their thoughts and experiences throughout the dispute resolution process Observe key events in the case, including interaction with Acas and ET judges

13 Building on the pilot study Explore range of strategies taken by workers Expand sample group beyond those who choose to take cases to ET Exploring legal consciousness Social relations and sites of cultural production Understanding power relations Following participants resolving employment disputes Subjective experience of law Participants co-producing understandings of law and legality: diary methods

14 Impact of Employment Law Reform on our Research Increase to the qualifying period for unfair dismissal Unrepresented workers particularly likely to be affected as a greater proportion of CAB clients with employment problems have been employed for more than one year but less than two years (15%) compared with the broader population (10%) (Dunstan and Anderson, 2008) Fees Regime Unrepresented workers often in precarious employment May deter such workers from taking claims to ETs

15 References Aston, J. et al (2006), The Experience of Claimants in Race Discrimination Employment Tribunal Cases, DTI Employment Relations Research series no 55. Busby N. And McDermont, M. (2012), Workers, Marginalised Voices and the Employment Tribunal System: Some Preliminary Findings, Industrial Law Journal, Vol. 41, 2, 166. Denvir, A. et al (2007), The Experiences of Sexual Orientation and Religion or Belief Discrimination Employment Tribunal Claimants (Ref: 02/07) Acas. Dunstan, R. and Anderson, D. (2008) Vulnerable Workers: Preliminary Findings from the Citizens Advice Client Research, Employment Relations Occasional Paper, BERR. Palmer, A. (2012), Opinion: Unfair Dismissal Claims, The Lawyer (11 September) ( accessed 11 September Peters, M. et al (2006), Findings from the Survey of Claimants in Race Discrimination Employment Tribunal Cases, DTI Employment Relations Research series no 54. Renton, D. (2012) The Coalition s Reforms to the Tribunal System will Impair Justice, New Law Journal (27 April).