Last week the Government published its draft deregulation bill with Ken Clarke announcing that:
"I am as strongly in favour of sensible regulation as the next man, but only where it is necessary to prevent wrongdoing and protect the public. In recent years a mountain of unnecessary legislation has been piled onto the statute book, usually introduced with the most worthy motives. This regulatory burden wastes time and money for hard-working people and ties honest businesses and public bodies in bureaucratic knots".
With that statement in mind, I took a look at the proposed changes to health and safety law, Employment Tribunal powers and apprenticeships.
Broadly, Section 3 of the Health and Safety at Work Act 1974 requires employers and the self-employed to conduct their businesses "so far as reasonably practicable" to ensure that third parties are not exposed to risks to their health and safety. However, Clause 1 of the Bill proposes exempting the self-employed from this legislation unless their business is of a particular description or could expose third parties to risks to their health and safety. Confused - you are not alone!
Currently, if the self-employed pose no risk to anyone else then no action will be required. This will not change under the proposed new law. Neither will the requirement for the self-employed to assess the risks of their business posing potential harm to others. However, what may change are attitudes towards risk, with some of the self-employed wrongly believing that these rules no longer apply to them. This confusion could lead to an increase in the number of injuries and fatalities at work, especially in those industries where self-employed status is quite common, such as the construction and agriculture sectors. This uncertainty could also create difficulties for the authorities in prosecuting the self-employed, which is presumably not what the Government meant by describing this as deregulation.
Turning to Clause 2 of the Bill, the next proposal is to remove the Employment Tribunal's power to make "wider" recommendations under section 124 of the Equality Act 2010. Currently, in a successful discrimination claim, an Employment Tribunal may make recommendations for an employer to take action in relation to either the claimant alone or other third parties (such as work colleagues). The justification for including this wider power in the legislation was based upon a recognition that many claimants left their employer after bringing a claim so that the "narrower" power became otiose.
If this is deregulation, it is not as we know it. This is because the "wider" recommendations are not binding. If employers choose to ignore them, there will also be no increase to the compensation awarded to claimants. So why the change? In its response to its consultation in October 2012, the Government expressed the view that the "wider" recommendations made by Employment Tribunals to date have been obvious and unnecessary. What this ignores, is that so called "obvious" changes may not be always easy to implement where they affect diverse interest groups within the same business. A recommendation may carry greater gravitas.
According to data published on Michael Rubenstein's blog on 13 December 2012, only 24 recommendations were made in the whole of 2012. This was an increase from previous years, arising largely from the fact that there had been 15 "wider" recommendations. Given the low numbers involved, it is hard to view these non-binding "wider" recommendations as a heavy burden for business, whatever your view is of their practical value.
Examples of recommendations made to employers include providing better training to managers, reviewing and updating policies and appointing a designated contact person for managing disability at work. No employer likes to confront a finding that it has committed unlawful discrimination. This is especially true where genuine attempts have been made to get things right in the first place. However, as Einstein once said, "the definition of insanity is doing the same thing over and over again and expecting different results". There is something to be said then for employers being able to learn from lost discrimination claims. If these "wider" recommendations help achieve this, then surely that can only be a good thing.
Tucked away towards the back of the Bill, there are proposals to change the law on apprenticeship. This follows on from the independent review undertaken by Doug Richard. His recommendations included creating a new and simpler form of apprenticeship with more emphasis on outcomes and closer co-operation with industry in designing the best and most appropriate qualifications.
In the conclusion to his review, Richard lamented that where as in the rest of Europe, apprenticeships were held in very high regard, in the UK nothing but a university education was deemed good enough. Amongst those commending his report was the former Labour Government Minister, Lord Sainsbury of Turville who stated that "for high tech sectors like science, advanced manufacturing and computing we need many more apprenticeships which demonstrably meet the skills of modern industry". The proposed changes only really set out the framework for the new system, rather than the detail which will be covered under secondary legislation. This means that it is hard to know at this stage how closely the law will reflect Richard's recommendations and what the uptake of apprenticeships might be amongst employers, but it is difficult to quibble with Richard's well meaning and considered intentions.