Joe O'Donnell2013-05-25T01:18:50-04:00Joe O'Donnellhttp://www.huffingtonpost.co.uk/author/index.php?author=joe-odonnellCopyright 2008, HuffingtonPost.com, Inc.HuffingtonPost Blogger Feed for Joe O'DonnellGood old fashioned elbow grease.Equal Marriage Plans Reveal Government's Deep Unease Over Gay Sextag:www.huffingtonpost.com,2013:/theblog//3.25504372013-01-25T10:04:11-05:002013-03-27T05:12:01-04:00Joe O'Donnellhttp://www.huffingtonpost.com/joe-odonnell/
Reform of the grounds for divorce and annulment of marriage are long overdue and there is a very good argument for saying that these provisions should be revoked across the board. However, by excluding only same sex couples from these provisions the government undermines its commitment to truly equal marriage.
Part 3 of Schedule 4 to the Marriage (Same Sex Couples) Bill 2013 which was introduced into Parliament today would amend S.1 of the Matrimonial Causes Act 1973, which deals with the divorce, so that only 'conduct between the respondent and a person of the opposite sex may constitute adultery'. The Bill would also amend S.12 of the Matrimonial Causes Act, so that the marriage of a same sex couple would not be voidable on the grounds that the marriage has not been consummated due to a spouse's incapacity, or a respondent's wilful refusal to consummate the marriage.
Possible reasons for the government's proposed deviation from the idea of equal civil marriage are unappetising. Does the government think that all same sex partners' sexual morals are so louche that the idea of a monogamous relationship is alien and therefore adultery is not needed to support a divorce petition? Does the government think same sex couples' sexual appetites are so voracious that no same-sex marriage could possibly remain unconsummated? Or perhaps the government just couldn't bring itself to contemplate the idea of a court having to decide what constitutes consummation for a same sex marriage, or hearing the lurid details of an extra marital same sex affair?
In reality these proposals were probably added to the Bill as a result of a combination of these factors and an unwillingness to engage with what the government perceives to be complicated issues. What is telling is that the government has introduced the Marriage (Same Sex Couples) Bill 2013 not the Equal Marriage Bill 2013. If the government really can't bring itself to face these issues then it should grasp the nettle of reforming divorce and annulment for all marriages.
Surely supporting a Bill which would create truly equal marriage would be a better position for the government than the current proposals which are likely to anger both supporters of the traditional definition of marriage and some in the gay community.]]>What Does Cameron's EU Speech Mean for Employment Law?tag:www.huffingtonpost.com,2013:/theblog//3.25339322013-01-23T10:50:14-05:002013-03-25T05:12:01-04:00Joe O'Donnellhttp://www.huffingtonpost.com/joe-odonnell/a long awaited speech David Cameron has set out his vision for the European Union. If the Conservative party are elected they will seek to reform the EU considering, among other things, whether 'the balance is right' in areas such as 'social affairs', which includes employment legislation. Once the government has attempted reform of the EU Britain will be offered an 'in or out' referendum. How would that impact employment law in the UK?
In his speech Mr Cameron states that "complex rules restricting our labour markets are not some naturally occurring phenomenon. Just as excessive regulation is not some external plague that's been visited on our businesses ... Let us not be misled by the fallacy that a deep and workable single market requires everything to be harmonised, to hanker after some unattainable and infinitely level playing field ... countries are different ... For example, it is neither right nor necessary to claim that the integrity of the single market, or full membership of the European Union, requires the working hours of British hospital doctors to be set in Brussels irrespective of the views of British parliamentarians and practitioners. In the same way we need to examine whether the balance is right in so many areas where the European Union has legislated, including on the environment, social affairs and crime." The prime minister also suggests that the democratic accountability of the EU can be improved, the single market extended in some areas, and the size of the European Commission reduced.
Mr Cameron goes on to argue that a vote on leaving the EU today "would be an entirely false choice" while it is unclear what sort of EU will emerge from the Eurozone crisis. Therefore the "Conservative Manifesto in 2015 will ask for a mandate from the British people for a Conservative Government to negotiate a new settlement" with the EU in the next parliament. Once that new settlement has been negotiated the Conservatives would hold a referendum within the first half of the next parliament on whether to "stay in the EU on these new terms; or come out altogether." Legislation will be drafted before the next election to enable a Conservative Government to introduce the enabling legislation immediately and pass it by the end of that year if elected.
working environment improvements to protect workers' health and safety
working conditions
protection of workers where their employment contract is terminated
the information and consultation of workers
representation and collective defence of the interests of workers and employers
conditions of employment for third-country nationals legally residing in the European Union
the integration of persons excluded from the labour market, and
equality between men and women with regard to labour market opportunities and treatment at work.
Thus, were the Conservative party to be elected in 2015, it seems they would attempt to negotiate Britain out of a huge swathe of employment protections which the EU has enacted under its social policy competency. Given the coalition's wide-ranging repeals of employment law 'red tape' in the current parliament it seems inevitable that a Conservative government would seek to further reduce domestic employment protection legislation if it successfully negotiated the UK out of EU social policy legislation, or if the UK population were to vote in favour of leaving the EU. Sadly for those members of the Conservative party who think leaving the EU would be a panacea for all Britain's problems, the UK would still be subject to the European Court of Human Right's jurisdiction and able to rule that the UK had failed to protect a claimant's human rights (as it did recently in Eweida v UK). Stripping employees of EU and UK employment rights would almost certainly see a dramatic rise in the number of human rights claims, which would be far more costly for employers than domestic tribunal claims. Removing UK citizens' human rights in such a situation may prove a hard sell for even the most ardent eurosceptic.
This blog was first published on www.idseye.com]]>Government to Force Unemployed to Take Jobs With Few Employment Rights?tag:www.huffingtonpost.com,2012:/theblog//3.22382522012-12-04T13:46:48-05:002013-02-03T05:12:01-05:00Joe O'Donnellhttp://www.huffingtonpost.com/joe-odonnell/has responded to its short consultation on employee ownership which would allow employees to give up some employment rights such as unfair dismissal in return for shares. Unusually, BIS did not issue a press release - perhaps hoping the shocking details will be lost as the media obsesses over George Osborne's Autumn Statement. Despite 92% of consultation respondents viewing the plans in a negative or mixed way, the Government intends to implement the policy, with some minor changes such as renaming the status 'employee shareholder'. The Government response makes for depressing reading, confirming, among other things, that unemployed people may lose their benefits if they reject an offer of work on an employee shareholder basis.
Under the scheme employees will be given between £2,000 and £50,000 worth of shares that are exempt from capital gains tax. In exchange, they will lose their right to claim unfair dismissal, redundancy pay, the right to request flexible working or time off for training, and will be required to provide 16 weeks' notice of their date of return from maternity leave, instead of the usual eight. Unlike Beecroft's plans, in the event of a dismissal, there would be no consultation period, redundancy-style notice or pay-off.
In its response to the consultation the Government acknowledges that there 'was a strong concern that individuals were losing important employment protections and that they might be coerced to take on employee owner status' but reiterates that it 'has already stated that the new status is voluntary'. However, BIS has previously confirmed to me that 'companies can offer employment on this basis [employee owner] alone to new hires if they choose to. It is then up to the individual to decide whether what is on offer is suitable to them'. In other words, the new contracts will be 'voluntary' for employees on a take-it-or-leave-it basis. This is not quite what I had imagined when the Chancellor described the scheme as a 'voluntary three way deal' at the Conservative party conference.
The Government states that it is not appropriate to introduce further regulation on how the shares element of the employee owner status should operate. That would, in the Government's view, risk negatively impacting on existing employee share schemes, and reduce the flexibility employers and potential employee owners to negotiate arrangements. Companies using the new status will simply need to satisfy themselves that they have indeed issued shares that have a real value of £2,000. The Government also believes that conditions of forfeiture should be left to contractual agreement between the employer and employee owner. As a result it seems that employee shareholders may find they have lost their most valuable employment rights in return for a class of share with fewer voting rights than ordinary shares and very little value. While an employee shareholder could go to a tribunal to argue that they were not allocated shares worth £2,000 this will be a far less attractive option next year once tribunals start charging £250 to issue a complex claim and £950 to have it heard.
The Government response also reveals that unemployed people who receive Jobseeker's Allowance would have to accept reasonable offers of work on an employee shareholder basis. If, on a case by case basis, a jobseeker is found not to have a good reason for refusing such an offer he or she could lose their benefits for up to three years. However, the Government will consider this issue further as the law is finalised. At least being forced to accept work with limited employment rights is better than working for free on a mandatory work scheme.
Given recent media coverage of foreign companies such as Starbucks, Amazon and Google's UK tax avoidance, you would think that the Government would be wary of seeming to give big business an easy time. Apparently they aren't. The consultation response states that the employee shareholder scheme will be amended to allow non UK-registered companies, as well as UK companies, to impose employee shareholder status on their new employees. Given that Starbucks is already allegedly imposing less favourable contracts on employees to make up for having to pay more UK tax, it seems inevitable that many huge multinational companies would leap at the chance at depriving their workforces of vital employment rights.
This is a depressing time for anyone who believes that the State should help ensure equality of bargaining power between employers and employees. Employment rights which have taken hundreds of years to acquire are being stripped away at a rate of knots. BIS may not have issued a press release, but we should all ensure that the Government doesn't brush these issues under the carpet.
This blog also appears on www.idseye.com]]>Owner-employees - Worse News Than Beecrofttag:www.huffingtonpost.com,2012:/theblog//3.19576722012-10-11T10:04:00-04:002013-01-29T06:06:42-05:00Joe O'Donnellhttp://www.huffingtonpost.com/joe-odonnell/new plan to create 'owner employees' has received. Adrian Beecroft reportedly called the plans "a real shot in the arm for Britain's entrepreneurs". But how does the new concept of an owner-employee compare with Beecroft's proposed 'compensated no-fault dismissal'?
The Beecroft report called for, among other things, the introduction of compensated no-fault dismissal for all businesses. This would have allowed employers to dismiss anyone without reason - provided they made an enhanced leaving payment after a brief consultation period. As in redundancy situations, there would be a notice period of one week for every year of employment up to a maximum of twelve weeks, together with a tax-free payment related to the employee's salary, age and years of service, up to a maximum of £12,000.
The business secretary, Vince Cable issued a call for evidence on no-fault dismissal for micro businesses but in the government's response to the consultation stated that it would not be pursued as the operation of two parallel processes (unfair and no-fault dismissal) may complicate, rather than simplify, matters for employers, especially if the use of no-fault dismissal led to an increase in discrimination claims, which can often be more complex and costly than unfair dismissal. The Government stated that it believed that employer confidence was more likely to be improved by preventing compromise agreements being used as evidence in unfair dismissal claims.
The Chancellor obviously did not agree with the Government's response to the no-fault dismissal call for evidence as his proposals are more radical than those consulted on by Vince Cable or even those proposed in the Beecroft report itself.
Under the new owner-employee contracts, employees will be given between £2,000 and £50,000 worth of shares that are exempt from capital gains tax. In exchange, they will lose their right to claim not just unfair dismissal but redundancy pay, the right to request flexible working or time off for training, and will be required to provide 16 weeks' notice of their date of return from maternity leave, instead of the usual eight. Unlike Beecroft's plans, in the event of a dismissal, there would be no consultation period, redundancy-style notice or pay-off.
Owner-employee status will be optional for existing employees, but employers will be able to choose to require new employees to enter into this new type of contract. Although the government states that the new contract is 'principally' intended for fast-growing small and medium sized companies, companies of any size will be able to use the contracts. The government will legislate later this year to enable companies to use the new owner-employee contracts from April 2013 and consult later this month on, among other things, the details of restrictions on forfeiture provisions to ensure that companies can buy back the shares at a reasonable price if an owner-employee leaves or is dismissed.
Arguments that the government accepted in relation to no-fault dismissals - that two parallel systems would increase complexity for employers and lead to an increase in claims based on EU anti-discrimination rights - apply equally to this proposal. However, the owner-employee concept raises yet more problems, such as:
will owner-employees be able to make automatic unfair dismissal claims based on EU rights e.g. dismissals connected to maternity or the entitlement to paid annual leave?
how will the value of unlisted shares be judged?
will it be possible to issue a different class of shares to owner-employees e.g. with fewer voting rights?
can an owner-employee sell their shares during employment?
why should the employer be able to buy back the shares at a 'reasonable price' rather than their open market price, especially where an owner-employee is dismissed in circumstances which would otherwise be unfair dismissal?
The CBI considers the plans to be a niche idea and not relevant to all businesses. Sadly, I think the CBI will be proved wrong if the Chancellor manages to subdue Liberal Democrat opposition and legislate for these new contracts. If one employer in an industry were to require all new staff to become owner-employees it could acquire a significant competitive advantage in that industry leading to others following suit. As George Osborne said in his speech to the Conservative Party conference, "western democracies like ours are being out-worked, out-competed and out-smarted by new economies". I can already imagine businesses arguing that owner-employee contracts must be used in order to compete with more lightly regulated workforces in BRIC countries.
It would be sad to see hundreds of years of employment law progress being swapped for £2000 worth of shares which can be bought back on dismissal 'at a reasonable price'. However, one effect of attacking individuals' employment rights could be a resurgence in union membership as workers seek the protection of collective labour rights. If that were to happen, the right wing of the Conservative Party may be less happy with this policy than George Osborne had originally hoped.