Abstract
Linda Dickens (ed.),
Making Employment Rights Effective: Issues of Enforcement and Compliance
, Oxford: Hart Publishing, 2012; 228 pp., ISBN 978 1 84946 256 3, £44.00 (hbk)
Developed from a workshop at the University of Warwick in early 2011, this edited book seeks to ‘inform debate by critically exploring potential alternative, additional approaches to enforcement through ETs [employment tribunals] and other drivers for securing compliance, and by illuminating the way in which employment rights interact with organisational and workplace contexts' (pp. 3–4). It focuses on employment rights in Britain, incorporating employment relations, labour law and sociology perspectives.
This book provides a fascinating overview of the outcomes of firstly attempting to wed minimum standards and worker protections to a voluntarist system, and later seeking to increase the significance of that legal regulation. The results are predictably ad hoc, piecemeal and flawed, with a range of fragmented bodies, agencies, institutions, departments and jurisdictions enforcing different employment rights and placing ‘too much reliance … on individuals having to assert and pursue their statutory employment rights, which generally required only passive compliance from employers …’ (p. 206). However, most regulatory scholars will be disappointed to discover that despite the book's title, and with the exception of the chapters on health and safety and equality, it does not really engage with enforcement and compliance debates.
Nine chapters, plus an introduction and conclusion/synthesis (Dickens), consider a range of issues related to employment rights, enforcement and compliance comprising the development of statutory rights and enforcement mechanisms (Morris); employment tribunals and alternative dispute resolution (Dickens); agency enforcement of workplace equality (Hepple); reshaping health and safety enforcement (Tombs and Whyte); procurement and fairness in workplaces (McCrudden); gender inequality and reflexive law (Deakin, McLaughlin and Chai); employment rights in small firms (Edwards); management and employment rights (Purcell); and the role of trade unions in the effectiveness of employment rights (Colling). Dickens has done an exemplary job of introducing the volume and drawing all the disparate chapters together.
Our reaction to this book is ambivalent. On the one hand, its focus on British laws, institutions and enforcement mechanisms makes it far more relevant to the UK market or those undertaking comparative scholarship. Little effort is made to engage an international audience, especially in terms of explaining many aspects of the system (along with maximum use of acronyms and no glossary or index).
A major issue is the use of ‘employment rights’ as a catch-all phrase. This makes the book too specific in some instances and too general in many others. The generality obscures discussion of a range of problems related to different types of claims. Health and safety and equality matters are addressed in considerable detail, and these chapters fulfil the aims of the book. Arguably, however, the more important issues (from a worker perspective) relating to a range of monetary and employment security issues are minimally addressed. This is highlighted most in Morris' chapter which provides an overview of the role and processes of ETs. Types of claims made, and their relative growth or otherwise over time (such as unfair dismissal), are identified but then largely dismissed. Figures cited are difficult to interpret as they provide insufficient detail about how they were derived, and what is included or excluded. Minimum wage enforcement (by Her Majesty's Revenue and Customs) is briefly addressed and then, doubtless because there is an agency involved in its enforcement, not mentioned again. The operation, enforcement strategies, effectiveness and outcomes of this agency are presumably viewed as unproblematic.
On the other hand, a range of pertinent issues provide a fascinating lesson on (and perhaps foreshadow) what happens when employment rights are individualised. Despite various calls for a single comprehensive labour standards enforcement agency in Britain, the book highlights the overwhelming focus of successive governments on ‘efficiency’ (especially economic efficiency) at the expense of ‘fairness’. Reductions to operational budgets of enforcement bodies, alongside shifts to the ‘better regulation’ strategy which encourages educative rather than purposive approaches to enforcement, also undermine effective enforcement. The focus of enforcement agencies and mechanisms then becomes ‘the most vulnerable workers, those most likely to be exploited by unscrupulous employers’ (p. 217). Unfortunately, as Edwards (rights in small firms) and Purcell (the role of management) argue, identifying the unscrupulous employer is not an easy task. A range of interlocking internal and external factors are involved in compliant behaviour thwarting easy categorisation. Likewise, determining ‘vulnerability’ is a complex matter.
Workers' abilities to use their rights are exposed to the whim of government as well as to their knowledge and individual capacity to take action. This book highlights that in such individualised environments, the most vulnerable have the least access to their employment rights and least ability to enforce them. From this perspective, the book made us thankful for the comparative simplicity of the Australian enforcement arena and the work of the Fair Work Ombudsman.
Overall, the book's key appeal will be to researchers within the British system. Given the lack of a general labour inspectorate in the UK, a European comparison chapter might have provided further substance to the issues raised in relation to workers accessing employment rights. However, non-UK industrial relations scholars keen to witness the chaos and unfairness of an individualised employment rights, compliance and enforcement arena will no doubt be fascinated and appalled in equal measure by the contents of this book.