Let's get out of this legal quagmire

The Equality Bill was a missed opportunity to clear up the deluge of such legislation from the past four decades

By Abigail Morris

There is an emerging consensus that employment law is now weighted too far in favour of the employee. Basic protection and minimum standards, including protection for discrimination, have now been supplemented with complex time-off provisions and rights to request.

The British Chambers of Commerce (BCC) has just released Employment Regulation: Up to the Job?, a report in which we set out practical recommendations for reforming the law and the employment tribunal system. Equalities legislation is a major contributor to the view that employment law is too uncertain, too complicated, and that there is just too much of it – leading to problems not just for the employer, but for employees too.

The Equality Bill was a missed opportunity to help clear up the mess of equalities legislation that has developed organically over the past four decades. Instead, we got some consolidation and codification of the law, but also some additional burdens and complexities, negating the benefits of the simplifications.

Perhaps clause 14 on dual discrimination provides the best example of this. This clause allows people to claim for discrimination on the grounds of the combination of two protected characteristics (race and gender, for example). To succeed, they do not have to prove that they were discriminated on one strand only.

We argued that if it could be proven people were discriminated against and could not access a remedy, then it is, of course, right that this loophole be closed. We suggested the Government should present research and then consider this change to the law – in the same way that evidence should always be used to determine policy.

However, the clause was included anyway, with the Impact Assessment stating that just five people will benefit from the change.

Yet it will cost business millions, and confuse discrimination law for millions of workers. Larger businesses will have to overhaul their monitoring systems and risk their new systems being able to pinpoint a worker with certain characteristics – it is unlikely that a business will have many Asian, disabled workers over 65.

In Employment Regulation: Up to the Job?, we recommend that this clause is dropped until a proper evidence base can be provided. We also recommend scrapping discrimination questionnaires, the complex, unwieldy forms that can include as many as 100 questions going back six years.

It is not the burden on the employer that is the issue, it is that tribunals rarely, if at all, use the results of these questionnaires in making a judgment.

The complex laws and the effect of disconnected court judgments mean that good employers are more at risk of unhappy ex-employees bringing claims with no merit against them in tribunal.

We know from our report that the average first hearing date is 20 weeks after the original claim. During these weeks an employer will have to pay for legal advice. They also may have suspended the worker on some or full pay, and productivity will be affected as morale suffers. Further, as the memories of witnesses and other employees fade, the employer can be even less certain of a victory at tribunal. No wonder so many businesses choose to settle.

While this system may be a good one for lawyers and for vexatious claimants, tribunals are too cumbersome, slow and ineffectual for the honest, fair employer or employee with a legitimate grievance.

Our report lists a number of reforms that we believe are necessary, including making sure all claimants have access to some professional advice before taking their claim forward.

The present quagmire of laws and courts obscures the basic fact that any employer who discriminates on any ground other than merit is at a competitive disadvantage. If the Government and the Equality and Human Rights Commission spent more time publicising this fundamental truth, and less time piling more laws on to bewildered employers, the gains in understanding would be dramatic.

Employees do need the law to make sure that they are protected from unjust discrimination. But they also need a law that they and their employers can understand – one that complements, rather than erodes, the relationship between them.

To find out more about this article, visit: http://www.britishchambers.org.uk/publications_4

28 March 2010

Abigail Morris. Policy Adviser, British Chambers of Commerce