The Beecroft Report on Employment Law

A bit later than some of the legal brains that have already blogged elsewere, I thought I’d add my voice to the others who have commented on the Beecroft report on Employment Law. For me, the proposals are mixed. Some good ideas, some that will make very little difference, and some stinkers showing, IMHO, a lack of detailed understanding of the relevant case law and legislation. On unfair dismissal, and a suggestion that ‘the burden of proof on the employer could be reduced’. The burden of proof is basically the Burchell test. For the non employment law geeks who might stumble across this blog, this is a case from the late 1970’s which basically says you need to do a decent job of the investigation, genuinely believe that the employee did whatever they are accused of, and generally be a reasonable employer. There is a school of thought that says this test is already pretty easy for an employer to meet. Certainly the trade unions spent long enough trying to challenge it through successive jaunts to the House of Lords. So how much easier could this really get? Then we come onto the so called ‘no fault dismissal’ brainwave. Plenty has already been said about this; the only thing that I can add is to say that this looks like having the potential for generating a fabulous amount of case law, that will go on, and on and achieve the total opposite of what Beecroft would want; time in the employment tribunal. I actually agree with his suggestion that the Equality Act provisions regarding third party harassment should be repealed, however I question his suggestion that these provisions ‘create a temptation for employees to conspire with each other or with customers to create a harassment situation’. I would love to know if anyone has any examples of this actually happening. Anything is possible, but that does not make it a real and actual threat to employers. Work permit checks – Beecroft says this should be done by a third party body rather than the employer. Yes please! Tomorrow? I’m also totally in agreement with the idea that the collective consultation period should be reduced to 30 days from 90 when more than 100 employees are impacted – but you would expect me to say that wouldn’t you? When it comes to TUPE, and so called ‘gold plating’ there could be better focus placed on ‘TUPE plus’ and public sector pension requirements rather than amending the Regulations to allow for reducing employees pay and benefits post transfer. This would create a licence for unscrupulous employers to ride roughshod over transferring employees. Beecroft talks about harmonisation often resulting in adopting the best provisions from each set of T&Cs. He is missing the point here in my view; there is no need to harmonise, and no obligation to provide the ‘best’ of the terms under the Regulations. Yes some minor ER issues can arise, but plenty of companies, including my own, manage perfectly well with employees on a variety of T&Cs as a result of a multiple transfers. I’ll save my last point for the Agency Worker’s Regulations, before this turns into War and Peace. It’s a European Directive. We agreed to implement it. And it was a trade off to ensure we got left alone on the WTR opt out. No one is going to just repeal it, so why recommend ignoring it? Enough said.

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