Employment rights only exist if they’re enforced

The Government are going to spend £1.7million on a campaign to make sure that workers are aware of the upcoming increase in the National Minimum Wage (NMW). This is great of course as it’s important that workers know their rights, but the evidence shows that many exploited employees feel unable to use these rights. The Government should be asking themselves why this is the case and what can be done to make employment rights work for all.

The problem

It is well known that working practices employed by Sports Direct have been very publicly challenged. What is less well known is that these questionable practices were uncovered as a consequence of a decision made by the Office of Fair Trading (OFT) to refer the acquisition by Sports Direct of 31 stores from JJB Sports. It was this investigation into a commercial transaction which led to the exposure of poor working practices, not the workers using employment law to protect themselves.

The harm caused

Bad employment practices do not only harm those on a low-income, many of whom are in a vulnerable position and feel unable to challenge their treatment. Responsible businesses which follow the law are put at a competitive disadvantage if unscrupulous employers cannot be brought to account for undercutting employee rights. The Exchequer also loses out to the tune of £314million per-annum. Research from Citizens Advice in 2015 suggests that one in ten people (or 460,000) are bogusly self-employed — meaning that they are losing holiday pay, sick pay, as well as the right to be paid the national minimum wage.

A recent review of Adult Social Care, the National Audit Office found that up to 220,000 care workers in England were paid below the NMW. Her Majesty’s Revenue and Customs (HMRC) found that 50% of care sector providers paid less than the NMW. Despite this evidence, since then only six care providers have been identified and back pay provided to only 202 workers.

A solution?

The British employment legislative framework puts the onus on the individual to assert that they are being exploited. If a person feels confident enough to challenge bad treatment it is their responsibility to pursue what could be a complex and time-consuming claim, with the risk of reprisals from an unscrupulous employer — including blacklisting. It is not surprising, therefore, that so few NMW and unpaid wages actions have been brought.

In the Law Society’s evidence to the BEIS Committee inquiry into the future of work and the rights of workers the Law Society urges the Committee to look at the possibility of putting the onus on bosses to certify their compliance when it comes to employment standards. Placing a relatively small responsibility on employers to show that they comply with employment laws could be an important step forward to ensuring everyone is protected.

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