prof linda dickens: employment rights – challenges for compliance
TRANSCRIPT
Warwick Business School
Professor Linda Dickens
IRRU University of Warwick
Warwick Business School
What is the problem?
Recent reforms based on analysis of problem as
too many disputes going to employment tribunals (ease of application, meritless claims) which are costly
employers over-burdened by employment rights; hampering flexibility and growth in the economy (de-regulation perspective)
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another perspective
Growth of legal rights but continuing experience of unfairness and limited substantive protection at the workplace
existing rights enforcement mechanisms inadequate for engendering compliance with employment standards/promoting fairer workplace
Problems with ETs but not just a flawed system -the enforcement approach is flawed
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Enforcement landscape
Historical accident, political convenience, ad hoc responses.
Fragmented and piecemeal. ETs centre stage
No strategic review/reluctance to engage
Need logic of enforcement designed to
ensure and assist compliance with statutory standards
give substantive effect to formal rights
reduce likelihood of adverse treatment, promote fairer workplaces
ET system not delivering on this
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ET - Flawed approach
Preconditions for successful complainant-led ‘self-help’ enforcement often missing (awareness of rights; knowledge of breach and how to enforce; preparedness and ability to act)
ET cases provide a weak lever for workplace change (missed opportunities)
Counterproductive for employers
Approach engenders narrow notion of compliance
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Current nature of compliance
Extent of compliance required by legislation is limited (thou shall not…)
Emphasis on compliance with legislative rules rather than giving substantive effect to formal rights and preventing unfair treatment
Compliance with letter rather than spirit (e.g. procedure/policy gap). Insulate from liability without addressing problem
Reactive and individualised compliance rather than pro-active and structural
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Reactive or proactive complianceindividualised or structural
Generally - passive/reactive employer compliance. Action only when challenged by ‘victim’, rather than taking pro-active steps to achieve specified objectives
Outcomes - individualised adjustments/ compensation for individual loss rather than redress, adaptation, adjustment for categories and/or changes to organisational policy, practice or structures
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A pro-active/ structural approach
Agency inspection, advice and enforcement
Potential advantages given certain conditions -resources, powers, sanctions, will to act – (often lacking in practice)
tackle unfairness without individual complaint
educative role, assist voluntary action/self-reg.
non adversarial
public interest
engage other stakeholders
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Responsive regulation
Formal legal devices integrated with self regulation. Requires:
Strong incentives to encourage internal organisational scrutiny and action
Mechanisms for effective deliberation/participatory decision making
External independent body to inform, advise, educate, persuade and finally enforce (with deterrent sanctions) if voluntary methods fail
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Role for non-state actors
Opportunity to achieve stronger compliance and enhance enforcement capacity of the state through ‘co-regulation’ with
Unions
Civil society organisations (potential but under-developed, lack workplace presence)
Employers
Also allows sensitivity to varied contexts and differing orientations
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Unions/representative bodies
CB as social regulation; translate formal rights to substantive change; Workplace institutions help embed, monitor and
enforce legal standards; ‘bridging’ institutions between legal system and
workplace Issues of capacity etc. but ability, knowledge and
expertise of unions could be harnessed to supplement regulatory capacity of state. Requires support for workplace representation currently absent from public policy.
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Employers
Procurement and power in supply chains
Use market power to drive substantive outcomes
Help overcome enforcement challenges from changes in organisation of work
Help target use of scarce enforcement resources
From ‘part of the problem’ to part of the solution
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Summary
‘self help’ enforcement - only limited ability to effect workplace change. Narrow concept of compliance
Passive/reactive compliance less effective in delivering fairer workplaces than pro-active employer compliance, addressing structural and organizational issues, not just individual.
Too much weight placed on individuals having to assert rights; too little weight placed on developing effective agency monitoring, inspection and enforcement
value of employee-based representative mechanisms as ‘bridging institutions’ not recognised in policy,
opportunities to complement and strengthen the regulatory capacity of the state by forging partnerships with non-state actors in enforcement and co-regulation are not being taken.
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References/Further Reading
Linda Dickens ‘Fairer Workplaces: making Employment Rights Effective’ in Linda Dickens (ed) Making Employment Rights Effective: Issues of Enforcement and Compliance (Hart, Oxford, 2012)