With cases of exploitation thrusting UK employment law into the spotlight, Nick Denys looks at how the system can be made fairer for all.
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Growing concerns around the ‘gig economy’, zero-hour contracts and other non-standard working arrangements have placed UK employment law under scrutiny in recent years. Research from Citizens Advice suggests that one in 10 people are bogusly defined as self-employed, meaning they lose out on holiday and sick pay, plus the right to be paid the national minimum wage. It also means loses of £314 million a year for the exchequer and puts responsible businesses at a competitive disadvantage to those willing to bend or break the rules.
In a move to combat exploitation, the government recently launched a £1.7 million advertising campaign to encourage workers to check they are being paid at least the minimum wage. A lack of awareness and clarity around workers’ rights is certainly an issue, but there's a greater problem at the heart of UK employment law: when faced with what can seem a daunting, complex and time-consuming legal route to justice, many workers simply don’t feel able to improve their situation.
In our employment legislative framework the obligation lies with the individual to challenge mistreatment. If an employee feels confident enough to do so, they must enter into a legal process with an uncertain outcome and run the risk of employer reprisals, including being blacklisted. It’s hardly surprising that so few under payment and unpaid wages actions have been brought.
Mauled in the press and slammed by MPs, Sports Direct’s reprehensible treatment of employees became well known. Yet the retailer’s working practices were uncovered during an Competition Commission investigation into the retailer’s part acquisition of competitor. It was this examination of a commercial transaction that brought the wrongdoing to light, rather than the actions of an exploited employee.
A review of adult social care by the National Audit Office found that up to 220,000 care workers in England were paid less than the minimum wage. HMRC found that 50 per cent of care sector providers were paid less than legal minimum. Despite this evidence, only six care providers have been identified and back pay provided to just 202 workers.
In the Law Society’s evidence to the Business, Energy and Industrial Strategy (BEIS) Committee inquiry into the future of work and the rights of workers, we urged it to consider placing the onus on bosses to prove compliance with employment standards. Shifting this relatively small responsibility to employers could be an important step in ensuring protection for workers and creating a fairer system for everyone.