The pointless Red Tape Challenge
Consultant editor Darren Newman argues that numerous sets of regulations do not in themselves create red tape. Instead of presenting employers with incomplete and irrelevant lists of legislation, seemingly to demonstrate the red-tape burden, the Government should address the question of which rights employees should and should not enjoy.
The Government has launched the Red Tape Challenge - urging everyone to have his or her say on the red tape that affects business. They have hooked up a website to the online legislation database and parcelled up employment law (and other areas of regulation) under broad general headings. In employment law these are: “taking people on”, “managing staff”, “letting people go” and “compliance and enforcement”. Each section then links to the regulations relating to that area and invites either general comments, or comments about specific pieces of legislation. In particular, the Government wants to know whether regulations should be left as they are or whether they could be scrapped, merged, simplified or improved.
It is very hard to complain about the Government asking people what they think about the law that affects them, but that is what I am about to do. In part, I object to the lazy use of vocabulary. As I have said before, red tape is necessarily a bad thing. The important task is to separate red tape and bureaucracy from laws that protect important workplace rights.
My main objection, however, is that the exercise shows absolutely no understanding of how employment law works - or even where it is to be found.
The website links to 151 sets of regulations relating to employment law. Clicking on the link, however, reveals that most will be of little interest to employers, much less place any sort of burden on them. I doubt that many employers will have firm views on the impact of the Employment Act 2008 (Commencement No.2 Transitional and Saving Provisions) Order 2009, or the Equality Act 2006 (Commencement No.3 and Savings) Order 2007. However, both are listed as regulations that affect employment. I am known for my enthusiasm for the detail of employment law, but even I find it difficult to get worked up about the Employment Act 2002 (Amendment of Schedules 3, 4 and 5) Order 2007 - especially since schs.3 and 4 of the 2002 Act were repealed in 2009!
On the other hand, the site seems to ignore some employment laws that people may wish to comment on - like the Employment Rights Act 1996, which contains almost all of the individual employment law applying in the UK. Astonishing as it may seem, the section on “letting people go” refers to eight sets of regulations, but none of them contain the substantive law relating to redundancy or unfair dismissal. There is also no mention of TUPE. Connoisseurs of employment law will, however, be glad to know that the Redundancy Payments (Exemption No.1) Order 1970 gets a mention. This excludes the employees of electricity boards from the right to a redundancy payment. However, although the Order is technically still in force (now covered by s.157 of the Employment Rights Act 1996) it is hard to imagine that anyone cares.
Clearly this whole exercise is something of a shambles. The website has been prepared by people who have little, if any, interest in employment law, and who have simply searched for particular headings on the Government’s legislation database. Instead of a proper structured debate around key employment law areas, we are being asked to comment on a random assortment of minor regulations, some of which merely amend some technical aspect of primary legislation and others of which are obsolete. It is very difficult to see the point of an exercise that invites comment about obscure regulations with little relevance to anyone, while completely ignoring those areas of law to which employers do have to pay close attention.
A debate about the future of employment law is a good idea. But the fundamental error that this exercise exposes is the notion that the “burden” of employment law is a function of the number of pieces of legislation that deal with it - and, in particular, the number of regulations that are in force. Legislation is important in employment law, but complying with the law does not involve getting to grips with all of the different pieces of secondary legislation that apply to a particular topic. Most people will read guidance produced by the Government, or Acas, or one of the many other sources of advice that are available. Provided that it is possible to explain the law in a straightforward way, it really does not matter to most employers how many sets of regulations there are - most are blissfully unaware that they even exist.
Most employers, for example, have no problem understanding their obligations in relation to the statutory right to request flexible working. If they do, there are many sources that can explain it to them. No ordinary employer would seek to learn about the right by reading the legislation itself. If you wanted to get to the information that way, you would have to read ss.80F to 80I of the Employment Rights Act 1996 and then look at the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 and the Flexible Working (Procedural Requirements) Regulations 2002. You would also have to make sure you that you had not missed the effect of the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 or the Flexible Working (Eligibility, Complaints and Remedies) Amendment Regulations 2007. Finally, if you were concerned about a request to work flexibly to take care of a 17-year-old, you would need to know that the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2010 had been revoked by the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) (Revocation) Regulations 2011.
Does it matter that even this relatively easy area of the law (you should see the number of sets of regulations covering paternity leave!) is set out in so many pieces of legislation? By listing the full titles of lots of regulations I can make the law sound much more obscure and shrouded in red tape than it really is. But what matters is not how many sets of regulations there are, but whether or not the law itself strikes the right balance between the rights of employers and the rights of employees. To have a proper debate about that balance, we need to get beyond facile rhetoric about red tape, bureaucracy and the burden of regulation and seriously consider what rights employees should enjoy in the workplace. Meaningless links to a legislation database showing what a lot of regulation there is will not help us in that assessment. We need to see something more thoughtful and considered from the Government than this rather empty exercise.
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