Are we turning back the clock on workers’ rights in the UK?
Brexit, the pandemic, opportunistic employers and an, at best, lackadaisical government are all contributing to an erosion of employee rights which must be tackled.
Following a public backlash over proposals to amend the UK Employment Bill, business secretary Kwasi Kwarteng quickly backtracked, saying the review would no longer take place. Critics were concerned any amendments would dilute current rights.
In his statement defending the decision Kwarteng said: “We are not going to lower the standards of workers’ rights. The UK has one of the best workers’ rights records in the world – going further than the EU in many areas.” Taking a closer look at rights disputes however, the claim to the ‘best rights records in the world’ is precarious.
In 2017, HMRC reported a quarter of all UK textile factories failing to pay the minimum wage over a six-year period were based in Leicester. In 2020, a factory that was part of the supply chain for online retailer Boohoo was found to be part of this group, with employees also forced to work in buildings that did not meet fire safety standards.
In January 2021, the Trades Union Congress (TUC) found that since March 2020, 9% of UK workers had been told to reapply for their jobs on worse terms and conditions or risk being let go.
The organisation also reported two million people in the UK were paid below minimum wage in April 2020, this is compared with 409,000 in April 2019, creating concerns that the government’s furlough scheme may be partly to blame.
Add to this, lobbying from Uber drivers, Deliveroo workers and GMB Union’s ongoing campaign for Amazon warehouse employees and there emerges a concerning picture of workers’ rights in the UK. So, are we turning back the clock on hard-won rights?
Are businesses getting away with increasingly underhand rights practices? Or are lobbying bodies simply pushing for better standards?
Worker rights landscape in the UK:
Hanging in the balance
One of the most pressing issues for workers’ rights in the coming years is the effect leaving the European Union will have on the workforce.
In leaving the EU, the UK government promised a new Employment Bill which would “protect and enhance” workers’ rights. First proposed in 2019 following the election, the bill has since been delayed. In early 2021 the Financial Times reported that protections including Working Time Regulations and potentially ending the 48-hour maximum working week, may be scrutinised as part of the review, sparking some backlash.
Adding to speculation surrounding the bill in February Matthew Taylor, former director of workers’ rights watchdog Labour Market Enforcement, criticised government for its “inertia and incompetence” when it comes to worker exploitation.
Taylor warned that rising unemployment levels, resulting from changes to the immigration system after Brexit and added pressure from the pandemic, would risk further worker exploitation. He told The Times that government is “flip-flopping” between a commitment to good work and an instinct to deregulate.
For Tacita Small, managing director and lead HR consultant at The Small HR Company, the fallout of Brexit means there is a real risk of rights being undermined.
She says: “I don’t think that companies have been forward thinking enough in doing what is right for employees.”
The problem, she argues, exists in organisations of all sizes, not just big names like Amazon and Topshop. Stories such as the surge in fire and rehire tactics, where people are asked back to their jobs on worse terms, the millions paid below minimum wage and poor work conditions are forming a pattern.
“Everyone is kind of falling back on statutory rights. At one point in time everyone was giving over and above what the government would say to give. But I think with Brexit and Europe, there’s been very much a lean to ‘let’s do our own thing’. Well okay, what is that ‘own thing?’” Small says.
Instead of enhancing the rights of workers, Small believes employers and government are being driven by greed.
She says: “If it [updating employment rights] was our own thing – we’re going to plus it, and we’re going make it [the UK] a really amazing place to work; dig down on equality and ensure that we’re paying people well. But it doesn’t feel that way. It feels as though we’re going do our own thing and we’re going to take everything right back to the bare bones for profit.”
Small argues this is leading to a culture of greed and gratitude, in which employers are taking advantage of people in a constricted job market. At the time of writing, the UK unemployment rate is estimated at 5.1%, 1.3 percentage points higher than in February 2020.
Small says: “I think that a lot of companies are... almost saying, well, ‘at least you’ve got a job.’ That’s something I hear through friends and family or on the news: that we should all be grateful. [But] this spirit of gratitude doesn’t pay the bills.
TUC senior policy officer Tim Sharp echoes Small’s sentiment, arguing that the signs are there that the UK is downgrading its workers’ rights.
He says: “We’re worried about the prevalence of fire and rehire. Our polling shows that just shy of one in 10 workers report that they’ve been subject to that. We’re worried about some of the evidence that’s emerging, that some employers are opportunistically using the pandemic and workers’ concerns about their prospects to level down terms and conditions.”
A growth in insecure work was one of the results of the 2008 financial crisis. Sharp says the rise was partly due to employers’ tendency toward risk aversion – on zero-hour contracts for example people can be called up and let go on demand depending on cashflow. Workers have paid the price for that, Sharp says, and those repercussions are now exacerbated by the pandemic.
“What we saw [following the market crash of 2008] was the growth in the use of things like zero-hours contracts and short-hours contracts in a way that we hadn’t previously, and the government stood back and was happy that the unemployment numbers looked better as a result. But that has had a massive impact on the affected workers,” he says.
Issues around insecure work and flexible working, such as setting a minimum for the number of days’ notice workers are given for shifts so they can plan ahead, were set to be considered in government’s revised Employment Bill. Sharp says: “I think if anything the pandemic is showing the importance of tackling those two things. It’s touched on the vulnerabilities of those who have very few rights.”
More on fire & rehire and zero hours:
Health and safety first
Zero- and short-hours contracts and insecure work without guaranteed hours, make it hard for workers to budget and have good quality personal lives which, Sharp argues, is responsible for shifting workplace power dynamics.
“Your time off has an ‘always on call’ aspect to it and further distorts power in the workplace because workers feel inhibited about raising concerns if it means that they therefore suddenly find their shifts dry up,” Sharp says.
Health and safety is one such concern, and though it has come under the microscope during the pandemic Dora-Olivia Vicol, co-founder and director of the Work Rights Centre (WorC), says that in her experience many workers are still going silent, choosing not to raise issues for fear of ending up out of work in
a competitive job market.
She says: “I think people are... more modest in their demands and a bit more afraid to rock the boat. And that’s really problematic.
“First of all, the Health and Safety Executive has been pretty reserved in sanctioning cases of COVID outbreaks at work. So that’s not exactly sending a message of empowerment to people,” she says.
“It’s up to HR professionals, government and us as a society to say just because we’re experiencing this pandemic it doesn’t mean that we should sacrifice our standards of welfare and justice and employment rights.”
Poor worker conditions are more than a pandemic-centric issue, however. Though a relative ‘winner’ of coronavirus, having thrived on our stay-at-home buying habits, Amazon is the subject of an ongoing campaign by GMB Union which has been calling for a parliamentary inquiry into the conditions of its warehouse workers.
In 2018, the union found 600 ambulances had been called out to 14 of the company’s warehouses in the UK over a period of three years. The majority (87%) of GMB members that work at the company also said they are in pain due to their workload.
Ensuring the personal safety of employees is the baseline for HR. Jo Pick is people director of operations at logistics business Wincanton which handles distribution for several well-known brands including Co-Operative Group and Sainsbury’s supermarkets.
Pick asserts that responsibility for the health and safety of employees should fall on all levels of an organisation
“We all have an accountability as both employees and leaders in the business to be responsible for the welfare of our colleagues – for their health, their safety and, even more importantly these days, their wellbeing as well,” she says.
HR should also be accountable for assuring good working conditions in its wider supply chain, Pick argues.
“I think there’s a real collaboration across the whole piece there. We work really collaboratively and closely with [our major customers] so that what we do for our employees is aligned with what they’re doing for their employees.”
As well as agreeing working standards upfront, Wincanton and its partners audit the process for each other to make sure these standards are upheld.
“Likewise, if we look then down the supply chain where we use agencies, there’s the responsibility to make sure that they’re aligned with our ethics,” adds Pick.
Not all employers however have the support of a well-informed HR department, creating additional concern when considering changes in immigration law.
Given WorC primarily works with migrant workers, Vicol is all too familiar with these issues.
She says: “We know that the points-based system proposed is not exactly open to people who are lower skilled or work in manual occupations, but that won’t prevent people from wanting to work in the country.
Our fear is that we will effectively see more people who suffer from exploitation, but they lose the courage to report it because they fear that they don’t have the legal status.”
In addition to seeking advice from professionals with the appropriate Home Office qualification, Vicol urges HR to apply compassion when taking on migrant workers.
She says: “If there’s one message we have for HR professionals it’s to be kind and be open to people. If the company is in trouble and you’re looking at redundancies tell people when that might happen – communicate and make sure that they’re informed, because uncertainty, and the lack of information is so stressful.”
Creating a culture of safety:
HR is not your friend
In many sectors, the employer/employee relationship is often bridged by trade unions.
In emerging economies, like gig work, the role of unions is still taking shape. Deliveroo workers, for example, are appealing a 2018 High Court ruling to be given the right to unionise and for collective bargaining on pay.
Unions’ power has also evolved due to changes in legislation. Sharp at the TUC says: “You can’t overlook the legislative backdrop. Unions have faced continued increased restrictions on their ability to organise, recruit and take industrial action...
“We’ve got to think about how that marries up with changing workplaces. So, if you have workers in a distribution centre in the middle of nowhere – what opportunity does the union have to speak to those workers?”
Due to the challenges in recruiting members, the TUC is hoping the UK will follow New Zealand in bringing in legislation giving unions the right to access a workplace and talk about the benefits they can provide.
There can also be tension in the relationship between unions and the internal HR team, complicating workers’ ability to act.
Corina Forman, HR director at logistics company APC Overnight, says part of this tension is due to a duality in the role of people professionals. She says: “On the one hand HR has moved towards being strategic and commercially focused, but then on the other hand there’s this role about being the voice of employees, and an advocate for employees’ rights.
“And I think that some schools of thought see those two objectives as being irreconcilable.”
In 2018, Microsoft found itself at the centre of a media storm as a class action supported by over 8,500 female employees brought claims of gender discrimination against the tech giant. Forbes ran with the headline ‘HR is not your friend’, demonstrating tensions of the case spread further than just Microsoft.
Josh Bersin, HR analyst, president and founder of research and advisory firm Bersin & Associates, quotes this headline when describing the difficult position people professionals find themselves in.
He says: “I don’t think that’s [the headline] always true. It might be true occasionally, but in most cases HR people are in HR because they do care about people.
“[What it] always comes back to, to me, is the business model. If you can’t afford to pay people reasonably well [for example] then maybe your business model is the problem. Because this is the reality of business – if you don’t pay people properly, you’re not going to be around for very long.
“I think HR has to play an ombudsman role of being a good citizen on both sides [of the employer/union
relationship] teaching both parties how to work with each other and then making sure that the actual management practices and the hiring practices are compliant.”
Forman agrees with Bersin, stating ultimately you cannot have commercial success without protecting employee rights.
She says: “I think that HR does have a responsibility both to ensure that the minimum standards of UK law are being upheld, and that you are trying to achieve better – that you’re trying to achieve best practice.
“To be a great employer, you have to go one bit better, and ultimately that feeds into your employer brand.”
For David Liddle, CEO of mediation and resolution consultancy The TCM Group, a reliance on an outdated policy framework also complicates the relationship between HR and unions. He says: “The HR profession and their union partners are still wedded to confrontational and adversarial performance, disciplinary and GBH (grievance, bullying and harassment) policies which are no longer fit for purpose in a modern workplace.
“These policies inject poison into the relationship between HR and unions. They turn workers and managers, either of whom may have a legitimate complaint or concern, into pawns in a contest between management and the union.”
Pick from Wincanton also identifies this ‘good cop, bad cop’ trope as a potential stumbling block for HR/union relations.
She says: “The unions would always see themselves as defenders of the rights of workers. And it’s easier for them to play that hero role with colleagues if they are in an organisation where the organisation is the bad guy.”
Both Liddle and Pick advocate for more collaboration between the two parties.
Liddle says: “The successful organisations of the future will shift to a pluralist approach where unions, HR and management work together to predict, prevent and resolve issues collaboratively
Pick adds: “The best relationships that you have with unions is where you are a partner with them, where you move towards being best practice partners... you ask their opinions on things that you’re considering and you’re open with them.”
At the TUC, Sharp says it has seen more evidence of these kinds of partnerships between HR and unions developing throughout the pandemic.
“It would be good to see some of those positive working relationships built on when it comes to thinking of things like decent work and so on,” he says.
“I get the impression in some cases those relationships have been developed because of the specific needs of this situation, but if we can build on them following the pandemic that’d be a very positive thing to come from it.”
The one thing a new Employment Bill, evidence of rights abuses and changes in immigration law all have in common is they present both government and employers with an opportunity.
For Sharp, the opportunity is in considering how to rebuild workers’ rights after Brexit and the pandemic.
He says: “I think the government needs to show that it has a commitment to ensuring that we emerge from this pandemic with a focus on decent work.
“We know from the Organisation for Economic Co-operation and Development (OECD) that decent work is associated with strong economic performance.”
Employers also have this opportunity and the potential to work more closely with employees he adds.
One positive move for UK workers so far has been a continued trend in employers’ commitments to paying a real Living Wage.
Though uptake during the pandemic has varied across industries (hospitality for example has understandably seen fewer accreditations this year) Laura Gardiner, director of the Living Wage Foundation, says the organisation has seen a positive trend.
“We had quite a strong growth in Living Wage accreditation in the run-up to the pandemic and we were certainly unsure what would happen [during] but actually we’ve seen that network continue to grow. So, over 1,200 employers have joined in the last year,” she says.
In January this year, consumer goods company Unilever exceeded its Living Wage pledge committing to weeding out any suppliers which do not pay at least a Living Wage to employees by the year 2030.
Such a commitment to standards of the supply chain is something Small, as a HR consultant, is keen to see from more employers. She says: “It’s very easy to look at the front face of an organisation and think ‘shiny, lovely, nice,’ and behind that is lots of other people who may not be living in the best conditions. So, supply chain I think is definitely where large organisations should be bringing everybody up.”
HR’s responsibility for the supply chain:
The Living Wage Foundation has also introduced Living Hours accreditation which recognises employers for giving workers the right to a minimum hours’ contract and decent notice period for shifts. Despite pressure due to the COVID-19 pandemic, Gardiner says this has had a lot of interest too.
Though she maintains it is still too early to comment broadly on how workers’ rights may transform after the past year, she says: “I think we’re certainly optimistic about the growing network of responsible
employers who want to commit to things like the Living Wage and Living Hours. And I do think there’s greater recognition of some of these challenges in the pandemic.”
Looking to specific sectors, like social care which has consistently been subjected to low pay and poor work conditions, Gardiner says people are much more aware of how important those workers are and that they should be treated with dignity and respect.
This awareness, she adds, is also part of a wider growth in social conscience.
“I think there has been a growing recognition about workers’ rights on a global scale and the implications of net-zero ambitions and climate justice and the need for corporates to be responsible in their actions around the world.”
Forman has also noticed this trend and sees it as an opposing force to the rapid development of technology. She says: “The way that I see it is there are competing equal and opposite forces at play here.
“So, I think what we’ve seen really over the last decade, is a tremendous rate of change in technology. And what technology has done is open up working practices that we just never dreamed of. What we’ve got coming on the other side is a zeitgeist of social awareness, and social responsibility.”
The two opposing sides, Forman argues, leave legislation with a lot of catching up to do, especially as progress has been impeded by the pandemic.
Bersin agrees with Forman. He says: “I think government has to be aware that some of these new business models are existential changes in the way people are going to work... so there have to be some protections.
“To me that’s the job of the government, not to just put some blocker in there that stops a business model from working, but to accommodate the fact that a new business model is really taking off and just makes it a little bit better,” he says.
But where is HR’s responsibility in this? “That’s the million-dollar question,” says Small. “I always ask myself, and my HR tribe, what are we supposed to be doing? Because we get blamed for a lot, but we also quite often don’t know what space we’re supposed to be occupying around that table.”
HR may yet get more driving power in an organisation though, as Bersin argues there has been a shift in expectation in the past year.
He says: “In the United States, we had of course a fight for the presidency, but I think we’re entering a world now where people have realised that labour is important. Businesses will not survive or perform well if labour is not treated well.”
Coronavirus he says, sharpened everybody’s attention. “CEOs came to the realisation in the last 14 months that if they don’t take care of their people, they don’t have a company at all.
“If you go to each individual company – you go to Uber or Amazon – they’re going to have their own business model perspectives on why they don’t want to pay benefits or why they want to pay this. But the pressure against that is so high right now that I think we’re in a swing towards labour,” Bersin adds.
“When I talk to HR managers they don’t have to pound on the desk and tell the CEO that we have to take care of the people anymore – it’s the other way around.”
The full piece of the above appears in the March/April 2021 print issue. Subscribe today to have all our latest articles delivered right to your desk.