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)

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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

Warwick Business School

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.

Warwick Business School

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

Warwick Business School

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.

Warwick Business School

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)