Securing Employment Rights in an
Age of Austerity
ESRC Seminar Series 2012-13
Morag McDermont, University of Bristol
Nicole Busby, University of Strathclyde
Outline of presentation
• Background
– Review(s) of Employment Tribunal system
– The changing legislative environment
– Legal consciousness and researching unrepresented workers
• The pilot study: ‘Barriers to Justice’
• Advice Agencies: New Sites of Legal Consciousness
‘Citizens Advice Bureaux and Employment Disputes’
Review(s) of Employment Tribunal System
• 2001 Consultation ‘Routes to Resolution’
• 2007 Gibbons Review – ‘Dispute Resolution in Britain’
– Revised ACAS Code
• 2011 Consultation ‘Resolving Workplace Disputes’
• Review of Employment Law (ongoing)
– The “Beecroft Report”
– The Red Tape Challenge
Employment Tribunals under Attack
Vince Cable called for “radical reform to the
employment law system…far too costly, timeconsuming, and complex for employers…too easy
[for employees] to make unmerited claims”
George Osborne "We respect the right of those
who spent their whole lives building up a business,
not to see that achievement destroyed by a
vexatious appeal to an employment tribunal. So we
are now going to make it much less risky for
businesses to hire people."
Employment Law Reform
• From April 2012 the qualifying period for
unfair dismissal claims increased from two
years to one year.
• Fees regime to be introduced for those
lodging ET claims from April 2013
Employment Tribunal Cases
Source: ACAS
Researching ‘Unrepresented Workers’
Pilot study
• Inadequacies of quantitative surveys
• Unrepresented workers are often vulnerable
– “someone working in an environment where the risk of being denied
employment rights is high and who does not have the capacity or
means to protect themselves from that abuse.” (‘Success at Work:
Protecting Vulnerable Workers, Supporting Good Employers: A Policy
Statement for this Parliament’ (DTI 2006, at [25]))
• Giving voice to unrepresented workers
• Citizens Advice Bureaux
– First destination for advice on employment disputes
– Key site for the shaping of vulnerable workers’ legal consciousness
• Pilot study
– 10 interviews with CAB clients who submitted ET1 form
– Intended to lead to ‘case tracking’ study
Pilot study: profile of interviewees
Pilot study: findings
• ET process overly formal and technical
– CAB acted as translators of language and procedures into formulations
vulnerable workers could understand
• Power inequalities: case management phone call
– “[judge was] 100%, probably 110%, behind me, which was, that was
the only time I felt, wow. . . someone believes what I’m saying. . . . if it
did go to court, I think I would a had his support, because he was
actually telling the other guys that he thought it was pathetic.”
(Interviewee 1)
– “. . .she would say, ‘Yes, sir,’ or ‘Yes, something,’ . . . . You know like
they’ve got to use, they talk a certain way, and they use certain words
and stuff. Of course, I just felt like, oh my God, I’m going to lose this
case! “ (Interviewee 2)
Pilot study: findings (2)
• Legal representation at the ET considered necessary:
– “Someone told me I could come and represent myself, but . . . I said myself, it
looks stupid if I go and represent myself. And uh, the company got, got this
solicitor, and I’d be tied into knots. So therefore, I thought no . . I’ll just cancel
the whole thing . . .” (Interviewee 9)
• Acas : site of ADR
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Reframing of cases from rights to needs problematic
Tenet of impartiality was disempowering
Pragmatic rationalities of managerialism
Prioritised positive clearance rates, swift resolution
Often felt like bullying to unrepresented workers
Advice Agencies: New Sites of Legal
Consciousness – ‘Citizens Advice Bureaux and
Employment Disputes’
• ERC Starting Independent Investigator grant
• ‘Legal consciousness
– Rejects a ‘law first’ enquiry
– Law in everyday life
– In-depth qualitative investigation
• Case-tracking’ research project
• Impact of legislative changes
• Mixed methods research
– Survey before and after ET fees
Research aims
• Understand the role played by CAB advisors
– Observe meetings between CAB advisors and clients
– Observe and talk with CAB staff and volunteers
• Capture implications of the varying levels of assistance and
resources offered by bureaux
– Pro-bono solicitors
– Specialist legal advisers
– Local authority-funded solicitor (Scotland)
• Map interaction with Acas, ET judges, other legal players
– Participants complete diary of their thoughts and experiences
throughout the dispute resolution process
– Observe key events in the case, including interaction with Acas and ET
judges
Building on the pilot study
• Explore range of strategies taken by workers
– Expand sample group beyond those who choose to take cases
to ET
• Exploring legal consciousness
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Social relations and sites of cultural production
Understanding power relations
Following participants resolving employment disputes
Subjective experience of law
Participants co-producing understandings of law and
legality: diary methods
Impact of Employment Law Reform on
our Research
• Increase to the qualifying period for unfair
dismissal
– Unrepresented workers particularly likely to be
affected as a greater proportion of CAB clients with
employment problems have been employed for more
than one year but less than two years (15%) compared
with the broader population (10%) (Dunstan and
Anderson, 2008)
• Fees Regime
– Unrepresented workers often in ‘precarious
employment’
– May deter such workers from taking claims to ETs
References
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Aston, J. et al (2006), The Experience of Claimants in Race Discrimination
Employment Tribunal Cases, DTI Employment Relations Research series no 55.
Busby N. And McDermont, M. (2012), Workers, Marginalised Voices and the
Employment Tribunal System: Some Preliminary Findings, Industrial Law Journal,
Vol. 41, 2, 166.
Denvir, A. et al (2007), The Experiences of Sexual Orientation and Religion or Belief
Discrimination Employment Tribunal Claimants (Ref: 02/07) Acas.
Dunstan, R. and Anderson, D. (2008) Vulnerable Workers: Preliminary Findings
from the Citizens Advice Client Research, Employment Relations Occasional Paper,
BERR.
Palmer, A. (2012), Opinion: Unfair Dismissal Claims, The Lawyer (11 September)
(http://www.thelawyer.com/opinion-unfair-dismissal-claims/1009642.article),
accessed 11 September 2012.
Peters, M. et al (2006), Findings from the Survey of Claimants in Race
Discrimination Employment Tribunal Cases, DTI Employment Relations Research
series no 54.
Renton, D. (2012) The Coalition’s Reforms to the Tribunal System will Impair Justice,
New Law Journal (27 April).