9 December 2020

The Tories can steal a march on Labour with a new Workers’ Charter

By Andrew Tettenborn

Last week, Business Secretary Alok Sharma launched a couple of notable three-month consultations on workers’ rights. Does the law need to be changed so that employers can no longer insert terms into employment contracts preventing their lower-paid employees from moonlighting during their time off? And should something be done about the rather opaque law on how far employers can prevent workers from working for competitors after resigning, preferably by limiting it? (Hint: the answer to both questions is Yes).

No doubt these proposals were at least partly inspired by the Covid debacle; but they form part of a quiet but important initiative by this government on improving individual workers’ rights against their employers. We already have a neat provision allowing zero-hours workers to sign up to multiple employers despite any purported prohibition in a particular employment contract; next year we are promised an Employment Bill, with extra improvements for zero-hours workers, allowing them to demand more fixed hours after six months.

All this is long overdue. But there is yet more to be done on employment. A further problem of English employment law is that it is scandalously generous to employers, and correspondingly unfair to workers, over how far employers can can dictate their employees’ private, as well as their working, lives. Put bluntly, in this respect employers can within reason put almost anything they like in a contract of employment (two favourites being a prohibition on anything seen as capable of bringing the employer into disrepute, or a statement of the “values” of the institution and a prohibition on contradicting them).

It was this difficulty which lay behind last month’s events at Eton. The school fired a master on account of nothing more than a controversial video on feminism which he made available on his private Youtube account. A female member of staff had apparently made complaint on the basis that she saw the argument in it as being sexist; and according to some accounts Eton was advised that when the master refused to take it down it was bound by equality law to dismiss him. We don’t know the full facts and he is challenging the dismissal; but it’s not unlikely that the terms of his employment meant that Eton was within its rights.

This is by no means the only example. Charity workers have been sacked for their private views on transgender matters, and health administrators for saying honestly what they think about the efficacy of single-sex parenting. Nor, significantly, is the difficulty limited to middle-class employees such as schoolmasters or managers: it can affect ordinary workers just as much. Last year a supermarket check-out operator shared on a private personal Facebook page a Billy Connolly video which was rude about religion. He was summarily dismissed on the basis, again, of a disrepute clause.

To most employees, this is seen as an entirely unacceptable intrusion on their private lives. Further, if (as some suggested in the Eton imbroglio) equality law does in fact demand that employers police employees’ private speech, then the sooner it doesn’t the better.

Next year’s Employment Bill is a perfect opportunity to really grasp this nettle, by adding a provision separating private from work life. It needs to be legislated that, whatever a contract of employment may say, speech or activity outside the place of work cannot form the subject of disciplinary proceedings unless it either refers to the employer, or the employer can positively shows that it directly impinges on the employer’s interests or the employee’s ability to do his job. Vague references to the “values” of the employer, or to matters which might bring it into disrepute, should not do.

You might of course ask, why do all this when one reason we are leaving the EU is to help preserve a flexible labour market and free employers from unnecessary and sclerotic regulation? It’s a good question, and there are two answers to it.

The first point is that Brexit carries with it not only freedom to set our own employment model (we hope), but even more importantly the need to decide what that model should be. It could be one where workers are treated rather like inanimate chess pieces: moved around, occupied or not according to the decisions of middle managers, and told what to do and not to argue about it. But this is an inefficient model, and is also going to get more difficult to follow after employers are no longer be able to make life easy for themselves by importing docile, often well-educated eastern European immigrants to do their bidding at low cost, in the knowledge that if they don’t like it there are plenty of others where they came from.

On the other hand, our employment model could be one, more akin to Switzerland than Slovenia, where good employees are a scarce commodity and employers recognise that they have to take trouble with them, and treat them as intelligent, thinking beings – as partners with them to make sure their businesses prosper. Such a model is certainly more sustainable; and here we have a golden opportunity to nudge employers, perhaps none too gently, in that direction.

The second point is more cynical, but just as strong. Properly publicised, this is a vital opening for a Tory government to position itself as the party of the workers and make off with an embarrassing proportion of Labour’s wardrobe. For too long corporate interests have been able to bend Tory ministers’ ears by whispering the words “flexible labour market” (meaning the ability to treat workers as a commodity to be hired and fired on a human resource manager’s whim); and Labour for its part continues to serve the equally corporate interests of the trade unions, especially in the public sector.

Assuming he can resist the blandishments of the men in suits, there is a great deal of mileage in Mr Sharma being able to say to the ordinary worker that provided he does a good day’s work the government is looking after his interests as an individual by putting a proper boundary to his employer’s authority over him. He could even invent a catchy title such as the Workers’ Charter. It would go down well, in red wall Darlington as much as in suburban Didcot, and would certainly give the opposition a healthy headache over how to respond.

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Andrew Tettenborn is Professor of Law at the University of Swansea. He specialises in private, commercial and maritime law.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.