We’re often told by business groups and by government that legislation intended to protect employees is so much red tape, tangling up business and strangling entrepreneurial spirit.
The Department for Business Innovation and Skills has recently published a report into what employers think of employment regulations, which makes interesting reading. On the face of it, the employers interviewed agreed with the traditional “red-tape” view of Employment regulation, describing it as complex and burdensome on their businesses. But the researchers did not stop here and probed further into what was behind this perception.
Employers from a range of businesses of different sizes and within different industries were interviewed. Not surprisingly, larger employers with capacity for a dedicated HR department had a better idea of employment regulation and were more likely to have written policies and procedures. They were more confident about handling employment disputes because of this. Meanwhile, smaller employers had less knowledge of regulation and were more likely to say that they did not consider employment regulation when hiring and firing, or when dealing with disputes. Yet these same employers would describe employment regulation as a burden on their businesses – despite the fact that they were not applying it!
This calls into question the effectiveness of the government’s recent efforts to lighten the load on employers. They have introduced a raft of changes, such as increasing the qualifying period for Unfair Dismissal from one to two years, designed to make employers more confident about hiring and firing. But the report showed that smaller employers very often were not aware of changes to regulations. Many of them thought that there were still statutory disciplinary and dismissal procedures in place, when in fact these procedures were phased out in 2009. They also thought that they could be fined for not following the statutory procedures, which was never the case. To the extent smaller employers are aware of changes at all, they may not register whether the change is beneficial to them or not, but rather it feeds into a vague sense that employment regulation is constantly changing and there’s little point in them trying to keep on top of it.
It seems that employment regulation is a bit like a horror film for small employers. The most frightening bits are often off-screen, where the viewer’s imagination is allowed to come up with something much more terrifying than the director could ever hope to concoct. In the same way, small employers tend to fill in the gaps in their knowledge with the assumption that employment regulation is scary and oppressive.
So since changing the regulations doesn’t work, how can the government succeed in making employers feel less anxious about employment regulation? The report showed that smaller employers find it difficult to access and use resources intended to inform them about Employment Law. They were aware of online resources such as the ACAS and DirectGov websites, but found it difficult to find the information they needed. Rather than chipping away at employee protection to try to appease small employers, it seems that the government would do better to focus on improving the resources so that employers can inform themselves and become more comfortable with employment regulation as it is.
What does all this mean for employees?
Well, you should never assume that your boss knows what they are doing when it comes to employment regulation, especially if it’s a small business with no HR function. If your boss tells you that you’ve no right to request Flexible Working, or that you can’t carry over holiday when you’ve been off sick, they may not be intending to mislead you. It may simply be that they do not know any better themselves. However amicable your relationship with your employer, it’s always worth getting your own legal advice to check the position.
By Employment Solicitor Lauren Hillier