The next months and years are likely to see a lot of pressure on employment rights, with tribunals already building a big backlog. So what can be done?
The last recession saw big increases in insecure working and it is likely that this one will be no different. It also saw a dramatic rise in employment tribunal cases with the number of discrimination cases being high.
Already we are seeing a huge backlog in tribunal cases. A report last week by Citizens Advice spoke of a ‘perfect storm’ brewing in the tribunal system, with rising demand at a time of restricted capacity.
It says the backlog for individual cases has already passed post-2008 financial crisis record, with 37,000 workers in the queue, and that three in 10 unfair dismissal cases are being withdrawn as workers face an average 38-week wait for a single claims relating to discrimination and unfair dismissal.
The number of cases after the 2008 recession prompted the Government to bring in fees in 2013, which it claimed were to reduce malicious or false claims. The fees were ruled unlawful in 2017.
Citizens Advice says it believes additional emergency funding is needed to increase capacity further and ensure employment tribunals can clear the backlog. It is also urging the government to fast-track its plans to create a single enforcement body for employment rights, which would relieve pressure on employment tribunals.
Of course, tribunals are just one part of the judicial system and all parts are seeing similar backlogs. With employment tribunals, however, the situation is likely to be compounded by a rise in cases being brought due to, for example, discriminatory action. The expectation is that women could find themselves more likely to be in line for redundancy in the coming months. A McKinsey report in the US found that as many as two million women were thinking of taking an extended break or leaving the workforce altogether as a result of Covid.
Jill Rubery, Professor of Comparative Employment Systems at the University of Manchester, recently told the Women and Equalities Committee that many EU countries protected the jobs of people who were on furlough. There were big concerns in the UK, she said, that women who were on furlough could be more vulnerable to being laid off when the scheme ends because employers may assume that they would be more affected by temporary school closures in the next phase of the pandemic. Anticipating a big exodus of women from the workforce post-Covid, Duncan Brown, Principal Associate at the Institute of Employment Studies, said it would be “a huge step forward” if redundancies were reported by gender. He said many of the jobs lost to now were part time and he pointed out that women were significantly more likely than men to work part time.
All of which suggests the need for broader thinking on employment protection – at a time when there are fears rights will be diluted in the wake of Brexit. A report out this week from the Centre for Progressive Policy think tank calls for Government action on insecure, low paid jobs, including the introduction of a statutory presumption that a person is a worker unless it can be proved that they are self-employed, a commitment to preserving the rights derived from the Working Time Directive are preserved, the implementation of a minimum wage for the self-employed, more detailed collection of data on employment status and the setting-up of the single labour market enforcement body promised in the 2019 Conservative Party manifesto.
What is clear is that action is needed because employment rights without the back-up of swift enforcement is no protection at all.