Before I say anything of substance in this post, I must begin by saying that I have no empirical evidence for the claims I am about to make. As I write this I am a passenger in a car hurtling through the Sussex countryside. This makes research somewhat difficult. Nevertheless, I remain hopeful that the Government will get straight on to implementing my recommendations.
You may be thinking I am somewhere in cloud cuckoo land rather than on the outskirts of Guildford but this is not as naive as it might first appear. After all, as the Public Bill Committee heard on Thursday of last week, Adrian Beecroft made the vast majority (if not all) of the recommendations in his report on employment law without a single scrap of empirical evidence. Time and again he referred the Committee to a finding by some survey of small businesses that 13% of respondents considered employment regulation to be the second most influential factor against expanding their business. Not the most influential factor, the second most influential factor. This statistically insignificant (to my untrained non-scientific mind at least) finding, he felt, gave him carte blanche to hack away at 4 decades of employment protection legislation with a blunt instrument.
Nevertheless, despite having no sound basis for his recommendations, the report has apparently had a profound impact on the future of employment rights. Many of his recommendations have found their way into the legislative programme in one form or another. In one sense, the report and the way in which the recommendations were leaked (twice) before being published in significantly revised form, raised the profile of employment law to rarely seen heights. It has perhaps meant that many more people than would normally track the progress of a draft law through parliament are doing just that. Regardless of the subject matter, increased interest in the law making process is to my mind no bad thing.
But anyway, back to the point of this post which was to make my own recommendation for our Government to reduce the burden of employment regulation on businesses.
My recommendation is this. Stop wasting time and money devising measures that are largely unnecessary where businesses manage employee absence, performance and conduct in a proactive manner. For those situations where a business needs to act quickly or no amount of good HR practice has managed to resolve such an issue, the law on “without prejudice” communications as it stands is perfectly adequate to allow a business to offer a compromise/settlement agreement without it later being viewed by the Employment Tribunal in the relatively rare event that a settlement cannot be achieved. The proposed clause in the Enterprise and Regulatory Reform Bill to enable a “protected conversation” to take place is, as currently drafted, complicated and raises many issues of interpretation. If the Government’s intention is to reduce lawyer involvement and enable businesses to conclude settlement agreements without the need for costly legal input, it is about to score a massive own goal with this provision as drafted.
Instead of trying to reduce red tape by .. erm.. increasing red tape, the Government could invest the money in supporting businesses to eradicate the gender pay gap for example.
Or, my own personal bugbear that I have come across time and again over the years I have spent advising businesses. The burden on employers of maintaining a woman’s benefits in kind whilst she is on maternity leave. The company car, the mobile phone, pension contributions and healthcare can cost an employer a significant sum over the requisite period (which may be the 39 week Statutory Maternity Pay period or possibly the full 52 week period depending which view you take. Either way, it’s expensive). For all women, regardless of whether they are fortunate enough to have a good package of benefits, the cost of the continuing accrual of paid annual leave also falls to the employer. That whilst paying in many cases for a replacement to do the woman’s work whilst she is on maternity leave. This has led over the years to more than one employer confiding in me that it puts them off hiring women of childbearing age.
My assertion therefore (made without empirical evidence) is that maternity entitlements cause businesses to discriminate and that businesses need support to stop this happening. When I say support, I do not mean exempting businesses of a certain size from certain aspects of employment law (a truly terrible prospect), nor do I mean slapping them with a penalty for losing a Tribunal case which goes directly to the Exchequer (just plain greedy). I mean reimbursing at the very least small employers for the cost of maternity benefits as well as the SMP.
I have no idea what are the anticipated costs of the various employment measures in the Enterprise & Regulatory Reform Bill or any of the other changes currently being considered. I don’t claim to be able to decipher Impact Assessments. I equally have no idea how much public money would be required to put my suggestion in place. But I don’t need either of those things do I? As Adrian Beecroft has demonstrated, all that is necessary to influence Government policy is a deeply held conviction that my recommendation will promote economic growth by giving small businesses confidence to hire the right person.
I definitely have that. So what are you waiting for Dave?