Fixed-term employees regulations
7 May 2002
16 July 2013
27 March 2014
10 February 2014
18 October 2013
16 October 2013
I played truant from school with my friend Mark. He lived on the new housing estate and had a Raleigh Chopper bike. It was 1976. Unknown to Mark and I, in the world of grown-ups the Labour administration took another radical step in industrial relations - as I believe it was called then - by reducing the qualifying period of service for unfair dismissal rights to a mere six months, down from one year. Of course, these rights only applied to the relatively narrow category of 'employees', but in those days the atypicial employment relationship hadn't been invented, so most of the people in work were employees - or so I'm told.
My mind is cast back to the dryness of that summer as I read through the latest desiccated draft regulations proffered by the Department of Trade and Industry (DTI). I speak, of course, of the snappily titled Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which are due to come into force on 10 July. In fairness, these are marginally less turgid than Council Directive No 1999/70/EC, which they are designed to implement. The directive takes the form of many recent directives in that it simply enacts the ETUC-UNICE-CEEP Framework agreement on fixed-term work.
Even before grappling with the complicated format of the rights proposed by the draft regulations, I am troubled by their introduction. Why, for example, has the Government taken advantage of the one-year extension available for bringing into force the directive, "to take account of special difficulties"? After all, there has been a surfeit of dreadful events since the original implementation date of 10 July 2001 under which to bury news of the regulations.
And why are the regulations restricted to 'employees' in the existing narrow sense of the Employment Rights Act and do not extend to the wider category of 'workers'? This is all the more confusing as the English version of the directive refers throughout to 'workers'. A glance at the DTI report on the first consultation process reveals that an apparently unimportant "5 per cent" of the respondents to the consultation document thought that the regulations should cover workers and not just employees. This strikes me as a particularly cynical use of a statistic. Which 5 per cent of the 221 respondents would that be? The only one identified is the Trades Union Congress, a view that perhaps should carry more weight than the roughly 33 per cent of respondents (my statistic this time) who were individuals.
Might the special difficulties of the Government relate to the fact that fixed-term contracts are one of the most one-sided employment bargains available to employers. It is clear, even from the understated language of the DTI consultation report, that respondents representing workers' interests were markedly less enthusiastic about the benefits of such working arrangements than employer representatives. Employers were mainly of the view that such contracts have the benefit of flexibility.
A flexible workforce is not one that does t'ai chi in the morning. 'Flexible' appears to be management double talk for staff that can be hired, fired and reassigned at minimal cost. Skilled employees may take pride in their work, but it is difficult to imagine anyone being fulfilled by their flexibility.
Which brings me back to the scheme of the regulations and the changes to employment protection in 1976. The regulations adopt a complicated mechanism of preventing less favourable treatment of employees on fixed term, unless the difference in treatment has an objective justification. The full legal sledgehammer of anti-discrimination reasoning is to be deployed with all its attendant paraphernalia of comparators and arguing whether they are truly equivalent, not to mention the issues surrounding objective justification - whatever that is. The cost and time associated with such cases will only add to the over-large existing caseload and give everyone involved a bigger bill. How will employees be adequately protected if they work for organisations where fixed-term contracts are the norm? Will it be necessary to introduce the legal fiction of hypothetical permanent employee comparators? Instead of introducing elegant comparisons of fixed-term employees and permanent employees, wouldn't it be simpler to grant more employees statutory rights by reducing the qualifying period of service to six months, or even three?