Employees are giving £28 billion a year to their bosses by working extra hours for no pay, according to the TUC.
It says more than 5.5 million workers are doing more than their contracted hours, an increase of 250,000 over the past year.
The TUC says its research shows employees are averaging seven hours unpaid overtime a week, worth more than £5,000 a year free labour to their employer.
TUC general secretary John Monks says the amount of unpaid overtime being worked more than compensates employers for the "exaggerated" costs of making sure workers had decent standards of legal protection.
"Employer organisations are always whingeing about the costs of what they call red tape, yet you never hear any gratitude for the vast amounts of unpaid overtime their staff put in.
"The truth is that when employers talk about the benefits of flexible labour markets, they mean stripping away terms and conditions, as many are now doing with occupational pensions."
Women in professional jobs are most likely to work unpaid overtime, the research found.
The value of unpaid overtime has increased by £5 billion over the past year.
By Christine Buckley, Industrial Editor
Times on line
CIVIL WAR threatened to break out in the trade union movement last night, after Sir Ken Jackson, Tony Blair’s favourite union leader, gave warning that he would quit the TUC over its talks with the Conservative Party.
In an unprecedented attack that is likely to shatter a decade-long truce within the TUC, Sir Ken said that John Monks, the moderate TUC General Secretary, had been “sold a pup” by the Tories over talks about pensions, manufacturing and public services.
Sir Ken, the joint general secretary of Amicus, the second largest union, said: “My members don’t want to be part of an organisation that takes Iain Duncan Smith seriously. If John Monks wants to work with the Tories, then we will consider our position within the TUC very carefully. We don’t give the TUC £2 million every year for them to support a party that did nothing to help working people during 18 years of power.”
Mr Monks is due to meet Michael Howard, the Shadow Chancellor, and David Willetts, the Shadow Work and Pensions Secretary, this week. The meetings come after Charles Kennedy, the Liberal Democrat leader, said that he wanted to work with unions in the public sector.
Tension between unions and the Government increased at the weekend after Mr Monks gave warning that trade unionists may desert Labour at the next election because of disenchantment over its treatment of the public services. His comments come ahead of May’s local government elections.
Mr Monks said: “I can well understand Ken’s scepticism about the Conservative Party, but not his view that the TUC should not talk to them. The TUC is not affiliated to the Labour Party and nor are many of our affiliated unions. Our responsibility, of course, is to seek to influence Government, but also to reflect trade union views and concerns to all the mainstream political parties.”
A large union has not quit the TUC in a policy row for many years. Even Arthur Scargill, a vociferous critic of new Labour, has kept the National Union of Mineworkers in the TUC.
However, Sir Ken has fallen foul of the movement before. He presided over the Electrical, Electronic, Telecommunications and Plumbing Union when it was expelled from the TUC over disputes procedures. It is also thought that Sir Ken, who is said by many not to play an active part in the TUC, is angry with the organisation over membership disputes with other unions. The TUC adjudicates in such disputes.
However, Sir Ken would face tough opposition from members of his own union if he holds good to his threat.
Roger Lyons, the other joint general secretary of Amicus, said: “We always have supported John Monks and the TUC in the mission to spread the message about trade unions and employment rights in general as wide as possible.
“In order to change the thinking of politicians, it is necessary to engage with them.”
Bill Morris, general secretary of the T&G, said: “We have got to realise that we are in a democracy. If we don’t talk to the Tories, it may appear as though we are not convinced by our argument. There is a big issue over public services and workers’ rights and in that context we need to talk to people who want to talk to us.”
If Amicus quit the TUC, it would mean a big dent in the organisation’s finances. Its annual income is £12 million.
The TUC has welcomed the publication of the new Code of Practice on the provision of goods and services for disabled people, but has warned that only new legislation can tackle the weaknesses in the present law.
The Code, prepared by the Disability Rights Commission (DRC), concerns the coming into force of the last stage of the Disability Discrimination Act (DDA) 1995, and requires all service providers to make reasonable adjustments, including to their premises, so as to avoid discriminating against disabled people. The legal duty comes into effect in 2004.
Commenting, TUC General Secretary John Monks said:
"While the TUC welcomes the new Code, which should help service providers make the changes needed to avoid discriminating against disabled people, the Disability Discrimination Act itself remains a deeply flawed law. We urge the government to name the date for new disability legislation as soon as possible to rectify some of the many weaknesses of the current laws."
Summary
The Bill was published and had its first reading in the House of Commons on 8 November. The second reading is scheduled for 27 November.
This briefing analyses the Bill, which comprises four parts. The first part covers paternity and maternity leave and pay; the second part covers tribunal reform; the third part covers dispute resolution; the fourth part covers 'miscellaneous' issues, including equal pay questionnaires, time off for union learning representatives, fixed term contracts and work-focussed interviews for partners of benefit claimants.
A further section of the Bill, which will bring into effect the new right to request to work flexibly will be introduced as a Government amendment. There will be a separate TUC briefing on this.
Part 1: Paternity and Maternity Leave and Pay
The provisions of the Bill on new ‘family-friendly’ rights are very welcome, and take account of many of the points made by the TUC in the detailed consultation process on these issues which took place in the summer of 2001. In general, the Government has been concerned to simplify and harmonise rights in this area, including qualification conditions and notice periods. Notice periods for taking or returning from leave or claiming pay will be based as far as possible around giving employers at least 28 days’ notice. Much of the detail will be dealt with in the Regulations under the enabling powers in the Bill, although the Government has also issued a response document setting out their intentions on all main points (see www.dti.gov.uk/er/review.htm).
One key and long-running concern about this aspect of the Bill and existing ‘family-friendly’ legislation is that coverage should be extended to workers and not just those legally classified as ‘employees’. No progress has been made on this objective as yet, although a consultation on extending employment rights generally to wider categories of worker is still expected soon.
Paternity leave and pay
The new rights to paternity leave and pay will come into force from 2003 and will allow for up to two weeks’ leave paid at the lesser of £100 or 90% of the employee’s average weekly earnings. The leave will have to be taken as a single period or either one or two weeks, starting within 56 days of the birth of a child or the placement of a child for adoption. Leave and pay will be available only where conditions are satisfied as to relationship with the child and the mother or adopting parent, and the purpose of the leave will be to care for the child or support the mother or adopting parent. This probably means that ‘absent’ fathers will not be covered. Same-sex partners of either sex who are intending to play a ‘parenting’ role should be able to claim paternity leave. There will be a qualifying period of 26 weeks’ employment by the start of the 15th week before the expected date of childbirth or matching for adoption.
The lack of flexibility of the paternity leave rights remains a real cause for complaint. For example, there may be a need to take paternity leave when the birth is imminent or to take it in blocks of less than a week, especially where the mother and/or baby may be readmitted to hospital for treatment related to the birth.
Adoption leave and pay
The Bill also introduces a framework for the new right to adoption leave. This provides for 26 weeks’ ordinary adoption leave, paid at the same rate as for paternity leave, followed by a further 26 weeks’ unpaid additional adoption leave. Adoption leave will be available to those adopting children up to 18 years of age, but does not include adoptions by step-parents or foster carers. The qualification period will be 26 weeks’ employment by the date of matching for adoption. Where a married couple adopt jointly and both qualify for leave, they will be able to choose which one of them takes the adoption leave. The other partner should be eligible for paternity leave.
The new rights to paternity and adoption leave do not affect existing statutory rights to unpaid parental leave, which are also available to adoptive parents.
Statutory Paternity Pay and Statutory Adoption Pay will be administered by employers under a similar system to Statutory Maternity Pay. As with SMP, larger employers will be able to claim back 92% of the SPP they pay out and small employers will get all SPP / SAP repaid with an additional 5% payment for administration costs. The Government estimates that about 60% of employers will be eligible for the full 105% rebate. The Inland Revenue will administer and enforce the system.
It is unfortunate that low paid workers earning under the Lower Earnings Limit (currently £72 per week) will not be entitled to SPP or SAP. A Congress 2001 resolution called for this situation to be rectified. For maternity leave, working women earning between £30 and £72 are usually entitled to a Maternity Allowance payment, and the TUC has argued that this system could also be adapted for paternity and adoption leave.
Changes to maternity rights
The new system of maternity rights to be implemented as a result of the Bill will provide for 26 weeks’ ordinary maternity leave with Statutory Maternity Pay, followed by a further 26 weeks’ unpaid additional maternity leave. SMP will be payable for 6 weeks at 90% of earnings followed by 20 weeks’ at a flat-rate (£100 from April 2003). A qualification period of 26 weeks’ employment by the start of the 15th week before the expected week of childbirth will be required both for SMP and for the extra 26 weeks’ additional maternity leave. A new notification system will apply, which will include a welcome obligation on employers to provide pregnant women details of their rights to maternity leave. However, the notification periods for women are more onerous than under the current law. It is disappointing that the announcements on the Bill stated that there will be no reform to the 8 week average earnings calculation period for SMP which creates unfairness for women in practice.
Part 2: Tribunal Reform
The Government received 'almost two hundred' responses to their consultation paper 'Routes to Resolution', including the response from the TUC and from a number of affiliated unions. The TUC’s suggestion of a comprehensive review before legislation, which was supported by other respondents, and another TUC suggestion that more resources should be provided for ACAS and the Employment Tribunal Service are to be considered further by the Government’s new Employment Tribunals Task Group though obviously the inclusion in the Bill of changes to dispute resolution procedures will affect any review. TUC Deputy General Secretary Brendan Barber is to serve on this Task Group. The Leggatt proposals on tribunals will also be considered by the Task Group. A TUC point about reviewing the Employment Relations Act 1999 and considering measures to improve collective dispute resolution and avoidance are acknowledged in the Government’s response to the consultation exercise on 'Routes to Resolution', where the Government’s commitment to review the ERA is re-iterated with a promise to legislate within this Parliament if 'needed'. The Government says that the ERA is being reviewed separately because more time is needed in order to be able to 'demonstrate what effect the changes in that Act have had'. (See www.dti.gov.uk/er/individual/etresponse.htm).
One outstanding feature of the parts of the Bill relating to dispute resolution is that much of the detail is to be set out in subsequent regulation. The analysis which follows includes, where relevant, information given to the TUC by the DTI about their intentions in terms of regulation. It is also likely that there will be a Government amendment to clause 33 (exclusion of claims) to include more detail on the face of the Bill; this is described below.
Costs and expenses
The Employment Tribunals Act 1996 authorises ET procedure regulations to provide for the award of costs (known as 'expenses' in Scotland) where the party bringing the proceedings, or their representative, has acted 'vexatiously', 'abusively' , 'disruptively' or otherwise unreasonably. Similarly, if the tribunal believes that the case has no reasonable prospect of success costs can be awarded against the applicant. The tribunal cannot currently include in the amount of costs an allowance for lost management time. Nor can they award costs for any other reason than those stated above, nor make an award directly against a representative if their behaviour is deemed inappropriate. In respect of the Employment Appeal Tribunal (EAT) costs orders are more restricted.
Clause 22 of the Bill gives the Secretary of State powers by regulations to authorise tribunals to make costs awards directly against representatives because of the way in which they conducted the proceedings. The award could mean that the representative may not recover his or her fees from his or her client or has to pay the other party’s costs. The Government intends the regulations to define 'representative' so as to exclude those who do not charge for their services, primarily trade union representatives, as indicated in the consultation document. The TUC supported this proposal in its response to the consultation document; there are a number of independent 'consultants', many of whom have no qualifications, who charge for their services and actively encourage claims, often with scant regard for their prospects of success. In some cases, they have supported cases which unions have judged too weak to pursue. Their record is generally abysmal and it will be helpful if they are deterred from encouraging speculative claims.
This clause also gives the Secretary of State powers to authorise tribunals to order that one party make payments to the other in respect of time taken in preparing his or her case. The tribunal would make an assessment; under current rules, assessments of costs cannot exceed £10,000. Such authority could only be exercised in circumstances where the tribunal can already award costs, for example, unreasonable behaviour. Legal costs would be excluded. The TUC opposed this proposal, believing that in effect it will penalise applicants. Employers will be much more likely to spend more defending claims than applicants spend in making them. If they know that they may be able to add preparation costs into a general costs award, they will be more likely to use legal representation, in order to make their case for costs at the tribunal. Their costs are much easier to quantify, as they are likely to have Human Resources Directors, and other such senior staff, whose time and salary can be taken into account, as well as the loss to the business of tying such staff up in tribunal cases. Applicants, particularly unrepresented ones, may incur very little in the way of quantifiable costs. The TUC has written to the Government urging them not to proceed with this part of Clause 22.
Clause 23 aligns the EAT costs regime with that proposed for the Employment Tribunals.
Conciliation
ACAS conciliators currently have a duty to promote settlements in a wide range of employment rights disputes which have or could be made to an Employment Tribunal. Clause 24 introduces a fixed period of conciliation for tribunal claims. Currently ACAS must continue to seek a conciliated settlement for as long as the parties want to carry on. This sometimes leads to 'tribunal door' settlements. In the consultation paper, the Government suggested that this was a result of parties not concentrating on trying to reach an agreement until the reality of the tribunal hearing is close. The objective of the Government is to introduce a system that encourages an earlier settlement. This clause empowers the tribunal procedure regulations to include a set period for conciliation, by fixing the date for the hearing to allow such conciliation to take place for a prescribed length of time before the hearing. The time will be set out in regulations and could be extended if the conciliator feels that settlement within a short additional timeframe is likely. ACAS’s 'duty' to conciliate cases will become a 'power' after this period has ended.
Power to delegate prescription of forms
Currently the application and respondent forms for Employment Tribunals (ET1, 2 and 3) have no particular status under the Tribunal Rules of Procedure and parties are free to use other forms to write out their applications or notices of appearance. Clause 25 of the Bill gives the Secretary of State powers to prescribe a form to be used. The Government believes that this will ensure that more information is provided to the tribunal which will help it to decide whether or not a pre-hearing review is needed and how long to allow for the hearing. An assessment of the other side’s case could be made, which the Government believes would encourage settlement. The clause also allows the Secretary of State to prescribe that certain documents, such as the written statement of employment particulars, should accompany either form. The TUC did not object to this proposal. The DTI is intending to ensure that the Employment Tribunal Service includes on the ET1s and ET3s sections relating to use of procedures (see below) with careful explanation in the booklet which is issued with the forms. Some of the proposed new provisions are complex and will need to be very clearly explained to parties.
Determination without a hearing
Clause 26 will allow the tribunals to authorise cases to be heard without a hearing in certain circumstances. Such circumstances would be where both parties have given consent by signing a form waiving their rights to an oral public hearing following independent advice, including presumably from their trade union in the case of the applicant. The tribunal would have powers to override such a waiver if they felt that the circumstances made it necessary to hold an oral hearing notwithstanding the views of the parties. The TUC did not object to this proposal.
Practice Directions
Currently the President of the Employment Tribunals does not have the powers to issue practice directions, although the President of the EAT does. This has led to the Regional tribunals adopting different practices and procedures. In the recent TUC backed part time workers’ pension claims (Preston and others v Wolverhampton NHS Trust and others), this caused chaos and confusion on more than one occasion during the lengthy proceedings because of the difficulties of running 80,000 concurrent claims. Notwithstanding the TUC’s recommendation to the Government to allow the tribunals to hold representative hearings in such cases, it would have been extremely helpful if the President could have issued directions in these, and other, cases. Clause 29, which gives the President powers to issue practice directions, is therefore welcome.
Pre-hearing reviews
Tribunals may currently conduct preliminary considerations, or pre-hearing reviews. If it is found during that review that the party’s case is a weak one, the tribunal may require the applicant to pay a deposit of up to £500 as a condition for continuing with the case. Only on refusal to pay may the case be struck out. The power to strike out is rarely exercised by tribunals. The objective in Clause 30 is to allow the tribunals to strike cases out at an earlier stage. The power to require a deposit remains and the DTI expects this to continue as the main sanction. The means of achieving this are by removing the word 'preliminary' in the Employment Tribunals Act 1996 so that it is clear that such reviews are not necessarily 'preliminary' but could lead to a strike out.
The DTI gives examples of the sort of weak cases which could be struck out. These include cases where the facts have already been litigated and there is no fresh evidence; cases where the facts are not in dispute but the interpretation placed on them by one party is clearly wrong; cases where the party has no further witnesses or evidence following a pre-hearing review and it is clear that he or she will not be successful. It is unlikely that the tribunal will be any more willing to use strike out powers at this stage than they are at the hearing stage. Unions will wish to monitor the use of this new power. If it is inappropriately used, applicants would be able to appeal to the EAT. One of the main disadvantages of pre-hearing reviews is that they are not normally conducted by the full panel. Recently the EAT has criticised Chairs sitting alone for not fully understanding the facts in pre-hearing reviews and has urged them to go for full hearings using the 'industrial jury' where the facts are disputed.
Part 3: Dispute Resolution
Statutory dispute resolution procedures
The consultation paper proposed that employers and employees should adopt and use minimum procedural standards in the workplace. The TUC welcomed the proposal to make it obligatory for all employers to have and to use dispute resolution procedures. This new obligation on employers, with the linked entitlement of workers to be 'accompanied' in disciplinary and grievance hearings, extends an important new protection to millions of employees currently denied access to basic procedures. Because the right of accompaniment has only applied in formal hearings, or where it has been custom and practice to have a hearing, where employers have had no procedures and have not held hearings, effectively the accompaniment right was meaningless. This change will rectify that anomaly. Additionally, all employers, with no small firms exemptions, (see clause 36 below) will be required to set out these minimum procedures in the employee’s written statement or employment contract.
Nevertheless, there have been concerns expressed by the TUC and others about confusion between the proposed minimum standards and the widely supported ACAS Code, and about the limited nature of the minimum procedures proposed.
The Government intends in Clause 29 of the Bill to introduce a requirement that employers should have and use statutory minimum procedures (DDPs), which are specified in Schedule 2 of the Bill. The Schedule will be introduced by means of affirmative resolution, which means that there must be a vote on it in Parliament.
The TUC had called for all employers to be obliged to have and to operate procedures in line with the ACAS Code. Under current law tribunals must consider the existence and use of disciplinary procedures in unfair dismissal cases. A failure by employers to use procedures properly can result in a determination of unfair dismissal, notwithstanding the merits of the claim in other respects. The ACAS Code must be taken account of when tribunals consider unfair dismissal claims and whether or not the employer’s decision to dismiss was fair.
In recent discussions between the TUC, CBI, DTI and ACAS it was common ground that the new DDPs should be incorporated into the existing ACAS Code so that they operate as an integral part of the Code and other important aspects of the Code, for example, the use of proper investigatory procedures, do not become detached. This will be determined in the regulations.
A further point of concern to the TUC is that the DDPs do not explicitly refer to the right to be accompanied, although in their original version in the consultation document they did. The DTI maintains that there would be legal problems with including this new right on the face of the Bill, as it could have the effect of distorting the relevant provision in the Employment Relations Act. This is because the ERA is prescriptive about the situation in which the right is triggered in relation to a grievance hearing - it must relate to a duty in the contract of employment. The DTI is concerned that if the right to be accompanied were to be specified in these DDPs it would have to be spelt out in technical detail otherwise the scope of the ERA might be unintentionally widened. The TUC has argued that not to have the right set out in the DDPs would mislead employers and that if the wording were to be conditional and properly cross referenced there should not be a problem with unintentional widening. Furthermore, as the DPPs are to be specified in written statements of employment particulars as a default (see below) employees should be informed of this important and relevant statutory right. The TUC has urged the Secretary of State to spell out the right to be 'accompanied' in the DPPs.
The procedures in the schedule, which are to be incorporated into all employee’s contracts of employment as an implied term, are minimalist. Four procedures are set out: a standard procedure for dismissal and discipline, with an appeal procedure; a modified procedure for use where summary dismissal has occurred on grounds of gross misconduct; a standard grievance procedure with an appeal procedure; a modified procedure for use when the employee is no longer employed by the employer. There is also a set of general requirements which specify that the procedure must be undertaken 'without unreasonable delay' and that the timing and location must be reasonable. The implementation timetable for this part of the Bill is to be long enough to ensure that all parties have time to 'come to terms' with the changes. A copy of the Schedule is attached for information. The Schedule can be amended by order to include individuals who would not otherwise be termed an employee or employer of the individual. Before doing so, the Secretary of State must consult ACAS.
The TUC is concerned that although the full ACAS Code will remain admissible in tribunal proceedings and the new procedures will be incorporated into the Code, it may increasingly become the case that as long as employers comply with this new requirement they will be able to satisfy a tribunal that they operated an acceptable procedure. Although the tribunals may look to the ACAS Code to judge whether or not the new procedures are used properly and fairly in particular cases there is a real danger that some employers, particularly where there is no union recognition, will substitute these abbreviated procedures for more comprehensive procedures which comply with the full ACAS Code. Because the proposed penalties for not having the procedures, or using them, will only relate to the DDPs, there will be no incentive to go beyond them.
One further discrepancy between the Code and the Bill is that the Bill uses the term employee, using the same definition as that used in the Employment Rights Act 1996. This defines an employee as an individual who has a contract of employment (as opposed to a worker, who may have a contract to provide a service to the employer). The Code uses the wider term worker, on the basis that good employers should allow workers, rather than just employees, to use procedures. The terminology in the Bill, which had to be used because the Bill amends the Employment Rights Act 1996, which refers to employees, means that workers will be excluded from these new provisions. Although workers cannot claim certain employment protection, for example, unfair dismissal, they can pursue other claims, for example, discrimination. It is inconsistent to say that workers in this situation do not have a right to have their grievance raised with the employer even though the complaint may form the subject of a tribunal application. The TUC will pursue with ACAS a formulation which is as inclusive as possible and continue to press the Government to take steps, particularly during the review of s.23 of the Employment Relations Act 1999, to amend all employment legislation so that the term 'worker' is used.
Contracts of Employment
Clause 30 will make it an implied term of every contract of employment between an employer and an employee that a statutory procedure is to apply in circumstances specified by the Secretary of State in regulations. This clause is welcome. It will not be possible for parties to contract out of this implied term. In discussions with the DTI, it has been made clear to the TUC that the statutory procedure will be a default procedure along the lines of those set out in Schedule Two.
Non-completion of statutory procedure: adjustment of awards
Clause 31 contains provisions requiring employment tribunals to vary compensatory awards when there is a finding of unfair dismissal for failures to use the statutory procedures before applications are made to employment tribunals. Unless there are exceptional circumstances, the variation must range between 10 per cent and 50 per cent of the award. In exceptional circumstances where a variation on that scale would be 'unjust or inequitable', tribunals may vary the award by less than 10 per cent or they may decide to make no variation at all. The jurisdictions are listed in Schedule 3; together they make up the majority of tribunal claims; the Secretary of State is given powers to add or remove jurisdictions. She can also make provision as to how these procedures will apply, in particular, where exemptions are allowed (see below). These provisions are welcome.
Consequential Adjustment of Time limits
Clause 32 gives the Secretary of State powers to make regulations about time limits for beginning certain proceedings in a tribunal. In particular, regulations will cover extending the time for beginning procedures, the exercising of discretion to extend the time for the beginning of proceedings and treating proceedings begun out of time as having been begun within time. The TUC had suggested a general extension of the time limits to six months in all jurisdictions as a simpler solution. There could be a considerable extension to the total time spent in resolving issues if the extension is used, followed by a fixed conciliation period, pre-hearing procedures then a hearing. As the current waiting time at the EAT is on average a year, if there were to be an appeal, cases could take up to two years to complete.
Non-completion of statutory procedures: exclusion of claims
Clause 33 provides that the Secretary of State may regulate, under the jurisdictions listed in Schedule 3, to prevent a claim being made, or a claim being heard, at an Employment Tribunal unless any specified step has been taken under the appropriate statutory procedure (ie, those set out in Schedule 2, see above). The word 'any' is a concession to the TUC and means that the employee need only have taken the first 'step' in the relevant statutory procedure. The procedure would not need to have been followed through all its further steps. Raising the issue would, at least, provide an opportunity for the employer to respond and seek to resolve the matter internally while not denying the individual the right to lodge the claim with the tribunal after taking that step.
These regulations can only be made after consultation with ACAS. The jurisdictions listed include all those commonly pursued at tribunals. The Secretary of State will have powers to add or remove jurisdictions from the list. Unfair dismissal is included as the Schedule also relates to the new powers to vary awards (see above); however, the DTI has given the TUC an assurance that it is not intended for unfair dismissal to be included in the regulations under this clause of the Act. In other words, the new requirement will not apply to dismissals (with the possible exception of constructive dismissal - see below), only to grievances, which is a considerable improvement on the original proposal.
In meetings between TUC and DTI officials, the DTI set out their intentions in terms of the regulations enabled by this clause. They may, by Government amendment, set out some of these on the face of the Bill. They have conceded some of the points made by the TUC and a number of affiliated unions, as indicated above, in responses to the consultation paper and at meetings with the Minister and officials. In particular, they agreed that the proposal could produce a whole new area of litigation in the tribunals, as parties disputed whether and at what stage a procedure had been used, if indeed one was in place at all. They therefore intend to set out two steps that must have been taken in order for an application to proceed. Firstly, the relevant party must have set out in writing the basis of their grievance or reason for instigating disciplinary proceedings. Secondly, a response would have to be forthcoming, or a disciplinary process set in motion within a specified timescale - they are currently suggesting one month but are open to suggestion on this. Their argument is that these two basic steps would be relatively easy to demonstrate on a factual basis, giving the parties little room for disputation at the preliminary stages of the tribunal process.
The intention of the Government is for the power to exclude to relate only to employees still in employment, who have grievances with their employer which could lead to a tribunal claim. The likely exception is in cases where the employee is claiming constructive dismissal, where it is likely that they would be expected to initiate a grievance procedure notwithstanding that they are no longer employed by that employer. Where a trade union is engaged in collective resolution of a grievance there would be no requirement for individuals affected to use procedures. Where there is some compelling reason not to require the employee to use a procedure, for example if the grievance involves bullying or harassment and the hearing would be conducted by the party accused of the harassment, or they are in some way implicated, there will be an exemption. The TUC will be consulted on the potential areas for exemption. The TUC has pointed out a number of potential problems, including where there are proposed tribunal applications under more than one head of claim, for example, sex discrimination and unfair dismissal; how this procedural requirement would fit in with the proposed fixed conciliation period (see above); where the employer has already taken action, for example, an unlawful deduction.
It is proposed that where an employer dismisses an employee without having a procedure in place, or without allowing the employee to use it, the dismissal would be 'axiomatically' unfair. The term 'axiomatic' is being used rather than automatic as it would not be exactly the same as other automatic dismissals, for example, on grounds of pregnancy, where there is no qualifying period. It would be similar to unfair dismissal for taking part in protected in industrial action (without the 8 week cut off), although there is no qualifying period for that right. The applicant would only have to convince the tribunal that the employer had not got a procedure, had misapplied it or had not allowed the employee to use it, for the dismissal to be deemed procedurally and axiomatically unfair. Additional compensation would be allowed (see above).
The TUC has pointed out that there would be procedural difficulties in the tribunal where the employer contested this. The case would be heard as part of the preliminary procedures in the tribunal but could easily revolve around the more substantial issue of the grievance. For example, if the employee was arguing that they should be exempted because the person conducting the hearing was the alleged harasser, in order to reach a decision, the tribunal would have to look at the substantial allegation before the full hearing. An additional problem would be that most preliminary hearings are conducted by the Chair sitting alone, whereas the TUC would argue that a full panel should look at substantial issues.
Procedural fairness in unfair dismissal
Clause 34 inserts a new section into the Employment Rights Act 1996 which would oblige tribunals to disregard failures by employers to take procedural actions outside the context of the proposed new statutory procedures , provided that such additional procedural actions would have had no effect on the decision to dismiss. The new section would, however, make it unfair for an employer to dismiss an employee without meeting their obligations under the relevant new statutory DDP in Schedule 2 and provides that an employee will receive a minimum of four weeks pay as compensation where they are found to have been unfairly dismissed and the DPP has not been complied with. In other words, at the second stage of the tribunal proceedings, where the substantive element of the claim is heard, if the employer is found to have unfairly dismissed the employee, there will be an additional four weeks pay added to the compensation. The compensation can itself be varied by between 10 and 50 per cent, as indicated above, if procedures have not been followed.
This new provision means where the dismissal is not found to be substantially unfair and the employer has used the new statutory procedure, but has made 'minor' procedural errors outside the statutory provisions, the dismissal will not be found to be unfair as a result of the procedural errors unless to have used them would have made a difference to the outcome. In effect, this reverses the 'Polkey' principle whereby failure to use procedures fairly will render a dismissal unfair, even if to have used the procedure would have made no difference to his or her decision to dismiss. In response to complaints by employers that they were often found to have unfairly dismissed purely for procedural reasons the Government has decided that the Polkey principle must be reversed. [1]
The TUC expressed serious reservations about this proposal in its response to the consultation paper. The standards set by Polkey reflect the accumulated experience of many tribunal cases as to what constitutes fair procedures. Unfair dismissal legislation is already biased towards employers, in particular under the 'band of reasonable responses' test. The proposed downgrading of the procedural protections is inconsistent with the spirit of the Government’s proposals to require employers to have procedures in place and will encourage employers to ignore all but the most basic of procedural requirements. It is a characterisation to suggest that employers can get off the hook for 'trivial' reasons; not applying proper procedures fairly is a serious matter; the tribunals already have and do exercise discretion in how and in what circumstances they find a dismissal unfair for procedural reasons. It is wrong in principle for the Government to provide employers who misuse procedures with a defence, in contrast to their stated aim of ensuring that employers adopt and use acceptable procedures and their assurances that there is no intention of undermining the ACAS Code. The TUC will continue to press the Government to instigate a comprehensive review of unfair dismissal law.
Employment particulars: particulars of procedures relating to discipline or dismissal
Currently, an employer is obliged to provide an employee with details of their main terms and conditions not later than two months after they start work (s.1 -7 Employment Rights Act 1996). The details must cover a number of specified areas such as the name of the employer, the date the employment began and details of disciplinary and grievance procedures applicable to the employee. A further statement must be provided if the details change. On the matter of procedures, employers who employ fewer than twenty employees currently only need to say to whom the employee can apply for redress of any grievance relating to their employment and the manner in which such an application should be made. Where employees are not issued with such a statement, or a subsequent change is made, they can apply to an Employment Tribunal to determine which particulars should have been included or referred to. There is currently no other sanction for failure to provide the written statement.
The TUC welcomed the proposal in the consultation paper to improve the legislation on written statements; the employment relationship is of fundamental significance when disputes arise and must be set out clearly in writing. Clauses 35 - 38 make a number of changes which should help to achieve consistency across employers regardless of many or how few they employ and inform employees about their right to a fair hearing on a grievance or disciplinary issue. It is an essential part of the new obligation on all employers to have procedures.
Clause 35 provides for the part of the written statement dealing with disciplinary and grievance matters to cover the procedure which applies when an employee is dismissed or disciplined, whereas at present it must only describe what they must do if they are dissatisfied with disciplinary action taken against them. The new proposal will ensure that all stages of the new statutory procedures are set out in the written statement (or contract of employment, see above).
Clause 36 removes the current exemption relating to small businesses and is particularly welcome, as the majority of unfair dismissal claims come from the small business sector. All employers, regardless of size of business, will now have to set out the minimum statutory procedures in the written statement (or contract of employment).
Clause 37 provides some flexibility for employers by allowing particulars to be included in a copy of the contract of employment or letter of engagement given to the employee to form all or part of the written statement. This allows documents to be given to the employee before they start the job and avoids duplication of documentation.
Clause 38 provides for tribunals to award compensation to an employee where the lack, incompleteness or inaccuracy of the written statement becomes evident upon a claim being made under specified tribunal jurisdictions (Schedule 4; the jurisdictions are identical to those in Schedule 3, applying to clause 31, adjustment of awards for non-completion of procedures). This is done by requiring the tribunal to increase any award made against the employer in respect of the complaint under the particular jurisdiction by between the greater of 5 per cent or 1 to 2 weeks pay and 25 per cent, according to whether the statement is incomplete or inaccurate, or has never been issued at all. 1 or 2 weeks pay is also the award where compensation is not a remedy available for the particular jurisdiction or where it is not the remedy that the tribunal chooses. These clauses are set out in detail in the Bill and will not require regulation.
Clause 39: Compromise agreements
In their consultation paper the Government said that they wanted to broaden the scope of compromise agreements so that they do not have to relate to the 'particular complaint'. There has been case law recently which has established that despite a compromise agreement having been signed, a fresh claim may in some circumstances be brought on the same issue under a separate head of claim. Clause 39 takes out the requirement that the agreement has to relate to the 'particular claim', so that it is not limited and is a final settlement, as with the COT3 ACAS conciliated agreements. The TUC argued that it was not necessary to make this change and expressed concern about the exclusion of personal injury claims. If the change is to be made, it will be necessary to ensure that union officers who are authorised by their unions to sign compromise agreements are fully aware of the wider nature of them.
Part 4: Miscellaneous: equal pay questionnaires, union learning representatives, dismissal procedures agreements, fixed term work, rate of work focussed interviews for partners.
Clause 42: Equal pay questionnaires
The Bill implements the Government’s intention to provide a questionnaire procedure for equal pay tribunal applications, similar to the procedures available in sex, race and disability discrimination cases. The proposed procedure should assist applicants in proving and winning cases. It is particularly helpful that the Government plans to require employers to respond to equal pay questionnaires within a given time limit. The other expected improvements to equal pay law, including the removal of the ‘no reasonable grounds’ defence frequently used by employers in inappropriate circumstances, are not included within this Bill and are still awaited in separate regulations.
Clause 43: Union learning representatives
The rights in the Bill include:
a) reasonable paid time off for carrying on any of the following activities in relation to their union members :
analysing learning or training needs;
providing information and advice about learning or training matters;
arranging learning or training;
promoting the value of learning or training; and
consulting the employer about carrying on any such activities in relation to such
members of the trade union
b) paid time off to undergo sufficient training to carry out these activities
the trade union will need to give the employer notice that the learning representative will undergo such training and confirm in writing that such training has been undertaken within 6 months. If this is not adhered to then the statutory entitlement to time off for their duties would end, although in practice employers would be unlikely to do this.
What constitutes 'reasonable' time off and 'sufficient' training will be referred to in a Code of Practice issued by ACAS or the Secretary of State. An employee will be able to present a complaint to an employment tribunal that the employer has failed to permit him of her to take time off.
Clause 44: Dismissal Procedures Agreements
Section 110 of the Employment Rights Act 1996 allows the Secretary of State to designate certain agreements as Dismissal Procedures Agreements (DPAs). This has the effect of replacing the statutory right to claim unfair dismissal for employees covered by the DPA. Such agreements can only be made between an employer and an independent trade union, or unions, recognised by that employer and the procedures and remedies must be those prescribed in the statute and must be as beneficial to the employees as those provided in respect of unfair dismissal at an Employment Tribunal. To date, only one such agreement has ever been made. This clause in the Bill gives the Secretary of State the power to add to the criteria specified for the agreement so as to give scope to bring in requirements aimed at ensuring that DPAs comply with the Human Rights Act 1998.
Clause 45: Fixed Term Work
The Bill provides regulation-making powers in relation to fixed-term work and employees. The Government’s intention is to use these powers to implement the Fixed-term Contracts Directive, including giving equal treatment rights on pay and pensions issues. It was not originally anticipated that the Bill would concern fixed-term work, and the inclusion of pay and pensions in the proposals can be seen as a significant victory for the TUC and union position. However, the restriction of the new rights to ‘employees’ only is of particular concern given the large numbers of temporary casual workers, mostly women, who are likely to be excluded as a result. Of all groups of temporary workers, they will tend to suffer the most discrimination on terms and conditions in comparison with permanent staff.
Clause 47: work-focused interviews for the partners of claimants
This clause requires the working age partners of people claiming Income Support, income based JSA, Incapacity Benefit, Severe Disablement Allowance or Invalid Care Allowance to take part in a work-focused interview or face benefit sanctions. This measure has been prompted by the Government’s growing concern about ‘workless families’: over half of workless working age households are poor, and three quarters of poor working age households are workless. This clause will not create any obligation beyond taking part in interviews, at which partners will be encouraged to take further steps towards employment. They will not, however, be required actually to take any of these steps - they will not be required, for instance, to take part in labour market programmes, though they may if they choose so to do.
The TUC will produce comprehensive new guidance for unions on the changes made by the Employment Bill. The TUC’s education courses and materials will also need to include training on the new legislation.
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[1] '..many employers claim that the present state of the law encourages employees to make claims and allows them to succeed for trivial reasons': 'Routes to Resolution', para.3.22
At least 100,000 NHS staff at risk from a potentially life-threatening allergy to latex, could be protected if hospitals and ambulances provided an alternative to the potentially deadly rubber, the TUC says in a report today (Wednesday).
The TUC report, Rubber banned - the case against latex, says the number of sufferers includes at least one in ten workers in the NHS - 100,000 nurses, dental nurses and other health workers - who are likely to have developed the allergy as a result of protective measures taken at work.
A ban on the use of latex in the health service would prevent these NHS workers from developing the allergy in the first place, and protect the estimated half a million people already allergic to latex. There is no way to predict how severe the reaction will be when a latex allergy sufferer comes into contact with the rubber, but people have died as a result.
TUC Senior Health and Safety Policy Officer, Owen Tudor, said: 'Latex gloves were once seen as part of the solution to occupational diseases, but now they’re part of the problem. For the sake of a few pence for a pack of gloves, workers’ health is being put at risk, and patient health is compromised. There are good examples where NHS Trusts have done the right thing. So if it can be done right, it must be done right.'
Latex allergy has become common among health care workers since the 1980s when nurses were urged to wear latex gloves to protect them from blood-borne diseases like hepatitis. Safer gloves (e.g. those without the powder that induces the allergy in the first place) and other products are available, but are slightly more expensive. Other workers exposed to latex at work include cleaners, police staff, food workers and hairdressers.
The cause of latex allergy is the protein in natural rubber latex. Once someone is sensitised to this however, they are allergic to all latex products with gloves, balloons and condoms causing the greatest risks. Latex allergy manifests itself mostly as asthma or skin conditions like dermatitis but some can suffer from potentially life-threatening anaphylactic shocks.
Rubber banned tells the stories of several women who have developed latex allergies and describes the effect on their working and everyday lives.
Case 1
Jacqueline Kershaw, a practice nurse from Halifax, has been working in the NHS for over 20 years.
'A colleague and I both noticed that our hands were covered in an itchy red rash. We couldn’t work out what was causing it. Then one evening, when I was in surgery, I put on a pair of gloves. A rash developed on my hands and spread up my arms almost straightaway. Then my neck started swelling up. Luckily for me the GP was in the room next door and I rushed in to him. He gave me medication on the spot.'
Jacqueline was diagnosed with type 1 latex allergy. 'Even leaning over a box of latex gloves gives me rashes on my face and neck. And because latex is in so many products, it affects my everyday life.'
Case 2
When Janet was diagnosed with latex allergy it was to mark the beginning of the end of her career as a radiographer.
'I’d been complaining for 10 years about the effects of latex gloves on my hands, and was fobbed off by my supervisor who just told me I had ‘funny skin’.'
After reading an article in a professional journal, bells rang and Janet went to Occupational Health. 'I described the problems caused by latex gloves and, once, by blowing up balloons. I was immediately referred to an Asthma Specialist for skin testing'.
Janet was referred to a consultant: 'I was told I had a potentially fatal allergy to latex. Since then I have had to carry adrenaline, antihistamines, an inhaler and a mobile phone wherever I go.'
Janet rang her union (the Society of Radiographers) and was taken off work whilst the department was made safe. She says: 'Despite their efforts, I got back and found latex gloves in the room as well as a latex-equipped resuscitation trolley.'
The Society of Radiographers took Janet’s case to court and she was offered a settlement out of court last year. 'This was not for loss of earnings but for pain and suffering. Latex allergy is frightening, expensive, and a nuisance. But it is also avoidable - latex free gloves don’t cost much more than latex gloves, but people’s lives are constantly put at risk, all because of a bit of penny-pinching.'
Case 3
Judith Barnes worked as a State Registered Chiropodist In Lancashire.
'I developed type 1 latex allergy through wearing powdered latex gloves at work in the NHS. Despite switching to wearing vinyl gloves everyone else continued to use latex gloves, which led to more allergic reactions. I was forced to take ill-health retirement - even though I was only 34.'
Judith decided to sue her employer and after a long battle, lasting over three years she finally won.
Her Health Trust admitted liability for causing latex allergy and made the medical environment safer.
Judith feels that her life now is totally changed. She cannot go swimming or to the gym anymore. Visits to shops have to be short and certain shops avoided altogether. She has learned to be vigilant at all times. 'This is not hypochondria' Judith says: 'I know how ill you can feel with latex allergy, and no matter what any doctor says, it is potentially life-threatening'.
Judith adds: 'On a hospital visit to a dermatologist who was using powdered latex gloves, I ended up in casualty surrounded by doctors, given oxygen, steroids and antihistamines. I have also had problems at the dentist and had to have a minor operation cancelled due to the risk of allergy in theatre.'
'All this is due to ignorance, but I and many others are left with a life long allergy which money alone cannot compensate.'
Case 4
Fiona McKie-Bell worked at Newcastle’s Royal Victoria Infirmary where she wore latex gloves. She started to experience anaphylactic reactions to latex which included swelling up of the face, lips and airways whilst working and was eventually forced into medical retirement at the age of 25.
However the pain and suffering did not stop for Fiona after retiring.
Fiona was due to have a wisdom tooth removed under local anaesthetic at a large teaching hospital. Although the dentist knew she was allergic to natural rubber latex (NRL), a syringe with an NRL bung was inadvertently used, and Fiona suffered an anaphylactic reaction. She spent the next few days in the intensive treatment unit, where she had several more anaphylactic reactions. Since then she has been hospitalised 50 times in only eight months. She uses nebulised adrenaline to help her breathing and is virtually housebound.
Case 5
Clare (not her real name) was working as a dentist in Yorkshire and had worn latex gloves seven hours daily since 1985. Low protein gloves were available but expensive at the time. Clare had problems with her hands for some years, but then started to get other symptoms.
'I started to get conjunctivitis and rhinitis. While investigations for possible latex allergy were being carried out, I also started to get asthma. I changed from low protein powder free latex gloves (which by then were becoming available at an economic price) to latex free, and my condition improved'.
However after about eight months, Clare’s wheezing started again, even though none of her colleagues were using latex gloves. Clare ended up using antihistamines every day and finally got to the stage where acute asthma attacks were happening within minutes of entering her workplace.
'I took a month off work to allow the condition to settle and then returned to work for one day a week, using antihistamines and steroid inhalers. But even staying in the room for an hour made the wheezing started again and my face swell up.'
A chest physician confirmed latex induced asthma and doubted whether it would be possible for the dentist to continue work, even for one day per week. 'It took two and a half years to get an NHS pension settled', says Clare, who is now working in administrative roles mainly from home. 'Although dentists are aware of latex allergy, they have no occupational health support. As (mainly) self employed, they are under pressure to continue working.'
Like other case studies featured in the report, Clare’s latex allergy pervaded her personal life: 'One of the most distressing things was being unable to spend much time with my mother who was terminally ill in hospital, because of airborne latex.' 'I cannot even go to parties anymore. I was recently invited to a formal dinner where my husband was to presented with an award. My face started to swell up and I couldn’t breath - just because the room had been decorated with a couple of hundred balloons.'
The TUC General Council has today agreed a statement on the future of public services
The statement welcomes the government’s commitment to improving public services, but says the General Council shares the widespread concern that it is in 'danger of derailment in an increasingly bitter dispute over the role of the private sector'.
The statement says the TUC will campaign to 'rebuild the public sector ethos and harness the enthusiasm and commitment of public service workers to the need for the improvement of services. The private sector must not become central to the programme of reform.'
The statement commits the TUC to seeking 'a grown up dialogue with the Government with the aim of establishing a clear understanding, sector by sector, on the way forward'. The TUC will now seek meetings with ministers to discuss issues on a departmental basis, with these discussions reported back to the regular meetings between the Prime Minister and the TUC.
Speaking today TUC General Secretary John Monks said,'The TUC now has a united position on public services. While we welcome the government’s commitment to improve public services, the statement spells out our concerns about private sector involvement. Our priority now is constructive engagement with the government on a department-by-department basis to discuss their plans in detail. We are optimistic that the government will respond positively to such discussions. This is where we will resolve the issues that concern our members as they continue to do their difficult and often undervalued public sector jobs.'
The full text of the statement follows, subject to some minor drafting amendments, which do not change the sense of the document.
General Council Statement
The Future of Public Services: The Position of the General Council
1 The improvement of the nation’s public services must be the nation’s top priority for the next five years. On this, the General Council are completely at one with the Government. The public are rightly demanding rapid and measurable improvements especially in education, health and transport. Coupled with the state of the economy, public services will be the test by which the Government is primarily judged.
2 The Government’s acceptance of this priority marks the success of a 20 year old TUC campaign for better public services. There should be a mood of celebration about the achievement of this objective, and an upsurge of enthusiasm to support its delivery. But instead there is increasing concern - shared by the General Council - that the Government’s welcome commitment to invest in public services is in danger of derailment in an increasingly bitter dispute over the role of the private sector in this process. During the election campaign and since, this role has appeared to be magnified at the expense of continuing direct public service provision.
3 The General Council believe that there are very good reasons why public services are precisely that - public.
- First, the market left to itself will not deliver equality of access to public goods that are seen as the hallmark of a civilized society - including health care, education, quality public transport and a high quality environment.
- Second, it is a matter of democracy that citizens should be able to elect governments that raise taxes and are accountable for the delivery of public services. If the public are dissatisfied then they can remove those responsible at a subsequent election.
- Third, in some cases, a judgment must be made that some services should not be subject to the profit motive since this might conflict with other objectives.
- Finally, there are examples of public sector involvement where some services are procured from the private sector and can help to prevent the emergence of cartels that fix prices at the taxpayers’ expense.
The current position
4 Recent developments in Government policy in key sectors have prompted sharp concerns in the trade union movement and elsewhere.
5 In transport, the Government has decided to proceed with the deeply unpopular public/private partnership for London Underground, notwithstanding the transparent failures caused by the fragmentation of the mainline railway system caused by privatisation. A High Court action brought by the London Mayor started on 23 July.
6 In the schools system, there have been Ministerial indications that private sector involvement - already substantial in relation to ‘failing’ schools and local education authorities - may be increased even to the running of individual school departments. It has been reported that independent schools are considering forming companies to run state schools or take over local authority services. Consideration is being given to providing that majority control in the governance of schools could, in some circumstances, transfer to the private sector. The Education White Paper has now been deferred but these ideas are being debated within Government despite widespread opposition, shared by the General Council, to the involvement of the private sector or the voluntary sector such as to create 'for profit' schools. Colleges too could be affected by similar ideas.
7 In the NHS, further PFI projects are planned, notwithstanding strong opposition and heavy public criticism of some early PFI hospitals (eg Durham, and Carlisle). These PFI projects concern new hospital building and new initiatives in primary care and imaging and laboratory equipment. Since the publication of the NHS Plan in July 2000 there have been many indications that private companies are also likely to run some of new surgery centres and the Prime Minister referred to this in his speech of July 16. While there is little objection to existing private hospitals being employed to clear waiting lists, the possibility of the public funding of new private, rather than public, hospitals opens the door to the private sector running major sections of the NHS.
8 There are similar concerns being raised by unions in the civil service, local government (where the fear is that the best value is becoming a vehicle for privatisation rather than for the spread of good practice) and in the administration of the justice system. All in all, there is a sense of heightened apprehension that the Government intends a progressive increase in the private delivery of public services.
The TUC Campaign
9 The TUC’s alternative is to rebuild the public services ethos and harness the enthusiasm and commitment of public service workers to the need for the improvement of services. The private sector must not become central to the programme of reform.
10 The Prime Minister’s speech on 16 July aimed to move the debate forward. It was unspecific in some areas and combative in others. As mentioned earlier, he referred to some new surgery centres being run by private sector 'where they offer the best services' and he also referred to the role of the private sector in education. The examples of good practice in the speech tended to be drawn from private sector involvement in the public services. Nevertheless, more positively , the Prime Minister:
- re-affirmed the new Government’s resolve to put investment in key public services before tax cuts.
- outlined ambitious targets for improvements and modernisation in the health, education, transport, and criminal justice systems.
- affirmed the critical importance of public services staff, and terms and conditions of employment which provide proper recognition for the work they do; and
- affirmed that private sector involvement was an element but in ‘no way, shape or form the central element’ (quote from the Prime Minister’s Official Spokesman)
- offered a partnership to public servants in achieving reforms.
11 The speech outlined the public policy framework for public services reform, but left unanswered the key questions on the pace, scale and detail of reform in each area.
Next Steps
12 It is essential now for the TUC to campaign for better public services run by public servants and to establish a grown up dialogue with the Government with the aim of establishing a clear understanding, sector by sector, on the way forward. The TUC intends to facilitate meetings between the relevant groups of unions and Ministers and arrangements are being made now for these discussions. Reports will subsequently be made to the next regular meeting between the Prime Minister and a TUC team. Our aim is to breathe reality into the commitment to the partnership approach advocated by the Prime Minister. At the same time, it will be necessary to work closely with sympathetic Labour MPs, and there has already been one very well attended meeting of the Trade Union Group of Labour MPs where there was widespread support for the TUC’s stance. It will be important to take account of the differences between England and the approach of the devolved administrations in Scotland, Wales and Northern Ireland.
13 However, this dialogue will have only been worthwhile if both parties are willing to commit themselves to genuine partnership. There will be little value in the conversation with the Government if their minds are made up and there is no scope for changes in policy. At the same time, the TUC recognises that failure to deliver better services is not an option.
14 The TUC’s approach to this campaign will be based on the following principles:
- A shared commitment to the delivery of the highest quality services.
- The need for public services to promote equality without reference to social status or the ability to pay.
- The need for high ethical standards and integrity.
- The need for services to be politically accountable and transparent.
- A continuation of direct service provision with genuine opportunities to match, and a level playing field with, the private sector.
15 Specifically, the General Council are determined to see:
- A renaissance of the public service ethos.
- Better public sector management brought about by establishing new academies and making greater use of existing centres of excellence (Too many public sectors managers have been managing cuts for 20 years or so. Now they must manage expansion successfully, spend the monies allocated in an efficient manner, and be given help to do so) .
- A new emphasis on high quality skills, training, and career development for all public servants.
- Terms and conditions for public sector staff, which facilitate the retention and recruitment of quality staff.
- Strengthened TUPE protections and a new Fair Wages Resolution. This will be absolutely crucial to the TUC, and the Government needs to respond urgently in this area. The recent agreement to pilot in three PFI hospitals a deal where private contractors would be required to manage seconded NHS staff is positive. It gives staff a greater sense of security than any previous arrangements involving private sector in the NHS. But it needs to be backed up by assurances that any private contractor cannot provide less favourable conditions of employment than the public sector to all staff.
Conclusion
16 This programme will necessitate a strengthening of the TUC’s capability to support unions sectorally. It will test the Government’s readiness to deliver a new partnership approach to change based on genuinely open dialogue, a willingness to share ideas on change at an early stage - not just presenting fait accomplis - and a real readiness to take account of TUC and trade union representations in final decision-making.
Commenting on the government’s consultation document on dispute resolution published today, TUC General Secretary, John Monks said:
'There are both good and bad proposals in today’s consultation document. We welcome the proposals to substantially increase penalties against employers who do not have proper disciplinary and grievance procedures or who do not provide employees with 'a written statement of employment particulars'. Moves to encourage conciliation in disputes by ACAS that will spare employees the trauma and difficulties of a tribunal hearing will also be widely welcomed.
'But there is also a major cause for alarm in the proposal to charge a fee to most employees bringing a case. Half of those taking cases are either unemployed or in low paid employment. Trying to deter cases by charging a fee goes against every tradition of justice in Britain. It is clearly against the principles of the Human Rights Act - and quite likely the letter. We shall strongly oppose this in the consultation process.
'But the figures in today’s document blow away all the myths about employment tribunals. There is not a deluge of cases. 130,000 cases out of a working population of 23 million is hardly excessive, given the amount of poor employment practice around in Britain today.
'Nor are all the cases brought by greedy claimants or unions out to make the most of something called the compensation culture. Most awards are very modest - only £2,700 on average for unfair dismissal. The real revelation today is that the vast majority of cases occur in small businesses - with more than half coming from firms employing fewer than 25. Many small businesses do not have even basic procedures to ensure fair disciplinary processes. Today’s figures expose that many of Britain’s small employers fail to see that with the right to employ people goes the responsibility to have some basic standards of fairness.
'In contrast unionised firms are acknowledged as far less likely to have cases going to Tribunals. If the government want to reduce Tribunal cases they should encourage fair employment practices, not try to deter people with genuine grievances from bringing a case.'
Industrial action in Britain remains at low levels, but when unions do ballot, their membership overwhelmingly supports them, according to a TUC report released today (Tuesday 17 th July 2001).
The Trade Union Trends survey of TUC unions shows that although there were more ballots in the year to May 2001, than in the previous year, industrial action followed in only half (54%) of cases, confirming that balloting is now part of the negotiation process in many organisations.
The low industrial action figures mirror the trend reported in the Department of Trade and Industry’s Labour Market Trends report which shows that in 2000 there were 212 stoppages with workers stopping work for 498,800 days. This compares to over 27 million working days lost in 1984 - for every working day lost in 2000, 54 days were lost in 1984.Organisation for Economic Co-operation and Development (OECD) figures show that in the UK labour disputes counted for only 10 working days per thousand employees in 1999? compared to 168 in Ireland, 139 in Spain and 190 in Canada.
Focus on industrial action and balloting confirms unions are in touch with their members. Where unions balloted for action almost nine out of ten (86%) voted yes.
Key findings from the survey show:
there were 1,926 ballots held in the year to May 2001. 250 (13%) were for full strike action, whereas 1,213 (63%) were for action short of a strike e.g overtime bans. Although there were more ballots held in the year to May 2001, compared to 983 the previous year, teaching union, NUT, organised most of these (1,236) over one issue.
most of the ballots (63%) were for action short of a strike, e.g. overtime bans. This is a huge increase on the previous year’s figure when only 7% of ballots were for action short of a strike. The increase may be due to changes in the Employment Relations Act 1999, which made it clear that overtime bans constituted action short of a strike. Only 13% of ballots were for full strike action.
union members are more likely to agree to take action short of a strike than to take full strike action. In the survey period, 91% of ballots for action short of a strike resulted in yes votes compared to 81% for full strike action.
the most common reasons for balloting and industrial action are over pay and changes to working time/practice.
although strikes have hit the headlines over recent months, the majority of unions (70%) predict no changes in strike levels over the coming year.
unions won some or all of their demands in three out of four cases (76%).
TUC General Secretary, John Monks said:
These figures show just how rare industrial action remains in Britain. They deal a blow to those who said that the new rights for employees introduced by the government since 1997 would lead to an increase in conflict and strikes. But while unions seek to work in partnership, they also show that when employees get a rough deal and negotiation does not succeed, unions will use smart industrial action to win for their members
Last Thursday, the British people spoke - and spoke up strongly - for the values, which run through the heart and soul of the best of British trade unionism. They voted for better public services especially a better health service, a better education service and a better transport service.
They voted against narrow nationalism - of Welsh, Scottish and the English Conservative varieties. They voted for a decent, friendly relationship with the European Union.
They confirmed the Fairness at Work agenda - the minimum wage, trade union recognition, family friendly policies, workers learning, trade union education and partnership at work.
The result is plain. Trade unionism can now advance with a spring in its step, confident that much of our agenda can be implemented with the incoming Labour Government.
I stress the word ‘with’. It’s not just a matter of what we want. It’s not an annual pay claim. Instead it’s a matter of what we can do, how we can help, where we can make a difference.
Because we all know that the key test that the electorate will impose on Labour in four years time is has it delivered - has the health service improved, is education better and can we move ourselves and our goods more efficiently, more quickly, more reliably round this country.
So the next four years will be a challenge to us. We need to rise to the occasion, to prove our worth to the nation and to demonstrate our crucial importance to achieving the results that the British people are demanding.
This must be a two-way relationship. I want to pay tribute right away to Estelle Morris and to David Blunkett who have made clear their wish to work in partnership with their unions. I know Alan Milburn has also made clear that will be his approach - and I am sure Stephen Byers and John Spellar in local government and at transport will take the same line.
It is important that they do. At the moment, too many public servants are demoralised. They feel that the Tory 18 years of insult and attack have not been adequately addressed.
They worry about the decline of regard for public service and the power of the belief that only the private sector can deliver.
In too many areas, there are desperate shortages of the right kind of people to carry out the jobs so essential to society. Relative pay levels have slumped. A friend of my son’s said to me the other day - only mugs go into teaching nowadays.
The concerns of public servants have been heightened in the election campaign. There were some in Milbank who were said to relish an early confrontation with a major public sector trade union. I could not believe it.
I say to them - look at the lessons of history. Look at 1978/79 when there was such a confrontation and it was an electoral disaster for Labour and for trade unionism. We still walk with those ghosts of 20 years ago. We still live with the memory of being out of office for a generation and with the collapse in public regard for trade unionism, I say never again.
Remember too the early Thatcher years. Year after year, she took on groups in the public service and this Union was involved several times. We still bear the scars. For example, primary and secondary education still has not recovered in key areas from the teachers’ dispute of 1983 - look at the continuing decline of out of school activities like school sports and the problems of attracting enough bright teachers.
So my message on this is clear - no one will deliver better public services by seeking bruising confrontation. Although the private sector will have an important place in many areas of public service, privatisation must not be the key way forward,
The watchwords the Prime Minister adopted in redefining Clause 4 - 'it is what works that matters' are dead right. Let’s not be ideological about privatisation.
What will work will be the partnership approach that many of you aim to pursue with your employers but which is all too rare in the public services.
What will work will be a restoration of the public service ethos - that strong sense of serving the community.
Most of my family have been public servants - mother a teacher, father a district parks superintendent, brother another teacher. The approach was dedicated, honest and hardworking. I grew up with that ethos and I want to see it recover, thrive and be appreciated.
What won’t work is wholesale privatisation or a new set of rail style complex contractual arrangements or those best value systems, which allow work to go private at rates of pay and other conditions under the agreed standards in the public sector. Labour has made commitments to end the two tier work forces. We want them honoured very swiftly.
Of course what also won’t work is obstructionist trade unionism intent on protecting the status quo when the need is for a great step forward together.
So today I endorse the approach of those Ministers who have called for partnership. I call on them to turn those into hard plans and deals. If public servants are regarded as second class, the services will remain second class.
Of course, while there must be a huge improvement in public services, the next four or five years must address other issues crucial to the importance of our nation.
One of these - hardly mentioned in the election - is the state of manufacturing. Ken Jackson and the trade union leaders have often been accused of scare mongering about manufacturing, the high value of the pound and the still comparatively high level of interest rates.
Yet 350,000 jobs have gone in the sector since 1997. The balance of payments is in severe deficit - we simply don’t make enough of the goods we buy. Some areas continue to do well. I was at Airbus in Filton two weeks ago as a guest of the Union and I saw the tremendous success story being put together there in Bristol.
But as we all know, those areas that produce goods that are price competitive are struggling - and the overvalued pound is central to that.
Of course, a weaker currency means more expensive imports, dearer foreign holidays, and possibly higher inflation. But we cannot live much longer with a currency that is overvalued, buoyed by hot money zooming around the world and by interest rates designed to quell inflation in the London house market.
Last week’s election result and the speculation that this will lead to an early decision about a referendum and entry into the euro are beginning to ease the currency pressures a little. But more is necessary. Manufacturing cannot be sacrificed any longer,
Like in public services, we know we have to raise our game in manufacturing. The Chancellor has challenged the TUC and CBI to work together to improve productivity. We are committed to do this and to do it well. Ken chairs the working group on innovation and I chair the group on improving skills.
We know that there is much to do to close the productivity gap with the USA, France and Germany. At the moment, we work too many, relatively unproductive hours compared to them. Being smart workers in smart businesses and services must be our collective aim.
But the question of euro entry or not is looming.
Some argue the decision can be put off. After all, they say, we are doing all right now and the euro is struggling. Others stress the need for firm evidence of long-term convergence.
I say to them that every day that passes that we stay out, our position is weakened in the European Union. If you don’t take part in one of the central elements in the European project, our influence on the other element diminishes. And while we keep putting off the decision, inward investors don’t put off theirs. At the moment, France is attracting more inward investment into manufacturing than we are. And, again, if you trade with a currency that is overvalued against those in your major market, your tourism, your farming will all take big hits.
If you pursue ‘go it alone’ policies in a volatile and increasingly globalised world you are more vulnerable than being in a block of countries, which together represent the largest economy in the world.
My views align with those of this Union on the euro so I am not going to labour the point further. But campaigning for early entry at a competitive exchange rate must be our collective priority and we shall be telling the new Government this.
Chair, before I finish, I must say a little about the state of the TUC.
This past year has been a historic one for this Union with the impending merger with MSF to obliterate the great blue collar/white collar class divides in much of UK industry. Congratulations to you all and I wish you well in future.
The projected amalgamation is one of a series of moves that are transforming trade unionism.
Another transforming step is the growth of union learning services, helped by generous grants from the Labour Government. The AEEU has long been in the forefront of these moves and the TUC itself has now 50 project workers helping unions help members to boost their skills. We now collectively have over 2,000 union learning reps and the promise from the Government of making these statutory.
This work gets little publicity. But its importance is profound. We have termed it the Quiet Revolution and in my capacity as the Vice-Chairman of the Learning and Skills Council in England, I intend to push further and further.
I also want to reflect the TUC work on equality. When I entered trade union work, it was nearly all men working full-time. Indeed it was men working overtime, lots of it.
Today, 40% of union members are women and their voice is powerful and distinctive.
Good wages yes. Equal pay for sure. But there are also rightful demands for proper protection for part-timers, temps and agency workers. There are also demands to make work more flexible and more responsive to family responsibilities. There are demands for men to work shorter hours and to play their full part in family life.
Maureen Rooney chairs the TUC’s Women’s Committee and we are proud of her skilled advocacy on these and many other issues. She is a true star in the TUC firmament and I am pleased to pay tribute to her before her own Union.
Maureen too is a strong supporter of my work on the TUC’s Stephen Lawrence Task Group. We are determined to confront racism at work, to root out cultures and attitudes, which discriminate unfairly, and to build a more tolerant society. If anyone questions the priority we give to this subject, take a look at the election results in Oldham and recognise the importance of the challenge. There is no place for racism in British trade unionism.
Chair, these are great challenges. To meet them, we need trade unionists with big ideas and big ambitions.
My ambition is plain. I want to see trade unionism where Walter Citrine and Ernest Bevin left it in 1945 - at the heart of the nation’s affairs, responsible, constructive, skilled and held in high esteem not just by workers, but by employers, the Government and the community. I want us in the media for the right reasons, not for mindless militancy, inter-union scraps, or tribal politics. I want us cohesive and principled not trading market share like supermarkets. We are a Movement that stands or falls together. I tell every union in Congress. I want you to succeed and you must work hard to do so but you will only truly succeed if the TUC as a whole succeeds and together we achieve our ambitions.
That Thursday gives us a near perfect platform to be ambitious and to scale new heights.
To the AEEU, to Ken and your other General Council members, to all of you who play a part in the TUC at various levels, I say thank you for your help in this your anniversary year. I will, of course, ask you for more and more help - and I trust that I can count on you to respond.
To you all, good luck for the future.
John Monks General Secretary TUC
This was another good Budget that was perhaps even more important than usual because it gave a clear signal about the Government’s future policy direction. Many of the specific measures had of course been signalled in the November Pre-Budget Report and there were few big surprises.
The Chancellor had to balance the need to keep a tight fiscal stance in order to minimize the risk of an interest rate rise and to use any fiscal room for manoeuvre to increase departmental spending in priority areas and improve benefits. As last year, the judgment was spot on. The Budget is not inflationary and there is no reason why the Budget decisions should delay a further cut in interest rates.
The overall economic outlook is similar to that set out in the November Pre-Budget Report (PBR). The economy as a whole is expected to slow from 3 per cent in 2000 to around 2.5 per cent GDP growth in 2001.
The Chancellor confirmed the inflation target for the Bank of England will be 2.5 per cent measured by the Retail Price Index less the cost of mortgage interest payments (RPI-X). Inflation by this measure is expected to remain well below target in 2001 at close to 2 per cent.
As the TUC anticipated, the forecast growth rate for manufacturing has been revised down. Manufacturing output is now expected to grow by between 1.75 and 2 per cent in 2001. With manufacturing productivity growth likely to be strong, this will inevitably see continued pressure on jobs and further job shedding across a range of sectors under pressure from the strong pound and industrial restructuring.
The Chancellor’s stance on the public finances is very similar to that assumed in the TUC Budget Submission. The overall budget surplus in 2000-2001 was much bigger than previously forecast, coming in at just over £16 billion against £10 billion predicted at the time of the November 2000 PBR. The Chancellor has used this to pay off more debt and tighten the fiscal stance compared with the November PBR.
However, the key year was always going to be 2001-2002. The overall budget surplus for 2001-2002 is £6 billion, exactly the same as in the November PBR.
The measures announced in November as either definite commitments or subject to consultation will cost £4.4 billion in 2001-2002, while new Budget tax and benefit measures will cost another £1.6 billion. In addition, the Chancellor added £800 million to the health, education, and law and order budgets and the capital modernization fund for extra public investment.
The Budget had few specific measures for industry, but made a number of important and very welcome commitments for the future as part of the Chancellor’s productivity initiative. These included:
a consultation paper on an R & D tax credit for larger companies;
a tax credit (along with other options) to encourage adult workers to obtain a qualification up to NVQ level 2.
Research and development and innovation
Both the TUC and CBI had recommended an incremental R & D tax credit be introduced to supplement the existing tax credit for small firms. We are very pleased to see this idea taken up by the Government and we will be responding in detail to the Treasury consultative paper Increasing Innovation. TheTUC also looks forward to responding to the consultation on the design of a new tax credit to encourage pharmaceutical companies to develop and distribute vaccines and drugs to fight major killer diseases in the developing world.
Skills
We welcome the move by the Chancellor to consider a new tax credit for training, particularly for the low skilled to obtain a qualification up to level 2. As many as 36 per cent of employees have not got such a qualification. This incentive could do much to encourage employers to increase investment in training and would help to meet the objectives of the National Skills Task Force. It would be a significant departure from previous policy and would fit neatly into the system of fiscal incentives and penalties proposed by the TUC in our budget submission. Of course much of the detail remains uncertain but, as with the proposed R&D credit, the TUC looks forward to a constructive dialogue with the government on how training intensity should be measured and how the benchmark should be determined against which additional investment in training is to be judged.
The New Deal has been a success. The Chancellor noted that the New Deal for 18 - 24 year olds has already moved 270,000 young people from welfare to work. Based on current trends, the TUC expects that, by May, the various New Deal programmes will altogether have helped more than half a million people to find jobs.
The most important new measures announced in this Budget relate to the New Deal for lone parents. Lone parents will no longer have to claim Income Support to be eligible, and a new outreach service will bring the programme to communities that have been under-represented among participants. Extra help with childcare and training costs will increase the programme’s flexibility, and the Budget announced new resources for lone parents considering self-employment. Next year the mandatory work-focused interviews for lone parents with older children will be extended to all lone parents, but the TUC considers that this is not an onerous obligation, as long as participation in the programme itself remains voluntary.
Many of the other measures have been announced previously but the Chancellor indicated that a significant statement is due next week on measures targeted on 'hard to help' groups. The TUC’s detailed comments will have to wait for the publication of the Government’s plans, but we can definitely welcome the decision in principle.
One of the emerging lessons of the New Deal is that there are more people with severe and multiple problems than had previously been realised. That is why the New Deal is developing a model of ‘parallel delivery’: helping people in a holistic way and addressing all their problems at the same time. This approach has the TUC’s wholehearted support.
The Chancellor confirmed that the government will progress the package of urban regeneration measures announced in the Pre-Budget Report. This package of tax incentives has two elements:
a new tax credit for community investment to encourage private investment in enterprises in disadvantaged communities as proposed by the Social Investment Task Force chaired by Sir Ronald Cohen; and
a package of regeneration tax incentives, including targeted cuts in stamp duty, tax relief for cleaning up contaminated land, cuts in VAT on residential property conversions, and tax relief to bring empty flats over shops back into use.
The TUC broadly welcomes these fiscal incentives to invest in enterprise and property in disadvantaged communities.
As expected the Chancellor confirmed the cuts in VED and fuel announced in the November Budget, but in addition froze unleaded fuel duties to June 2001 and VED car excise duty for one year. This was a reasonable balance between the need to meet public concerns at the rapid increase in fuel prices last year and environmental considerations.
The Budget included no specific proposals for changes in North Sea oil taxation, as recommended by the TUC, but the Chancellor did not close the door to changes in the future. In his Budget speech he said: 'As we consider the next steps in taxation in the North Sea, our approach will be guided not by short-term factors but by the need for a regime that raises a fair share of revenue and promotes long term investment in the North Sea.'
The Chancellor referred to the Government’s ambition of eliminating child poverty in a generation - a goal that has sparked an enthusiastic response from the trade union movement.
The Government has introduced the most substantial increases in Child Benefit we have ever seen - for first children, more than five times the increase that would have been produced by uprating in line with prices. Children’s premiums in means-tested benefits have also been increased by more than inflation: a 55 per cent increase for children under 11, and 25 per cent for those aged 11 - 15.
This budget announced new increases in the tax credits. The pre-budget statement had already announced inflation-linked rises in April for the different elements of the tax credits, plus new generous credits for families with severely disabled children. In this speech, the Chancellor announced a further £5 increase in June. A family receiving their maximum WFTC will, on average, see an 8 per cent increase, compared with last year.
The enhancement of the Childcare Tax Credit is very welcome. This currently adds to a family’s maximum tax credit 70 per cent of their childcare costs, up to a maximum of £100 per week for one child, £150 for more than one. In June these maximum figures will rise to £135 and £200 respectively. Families with eligible childcare costs will be up to £35 a week better off - a family receiving their maximum WFTC will, on average, receive nearly 20 per cent more than last year if they get this help as well.
The TUC has already welcomed the Children's Tax Credit. The TUC supports the CTC so strongly that an increase in the level at which it is introduced, from £8.50 to £10, was one of the key proposals in our Budget Submission. We are therefore delighted that the Chancellor has decided to do just that. By only means testing higher rate income tax payers it will make a real difference to working families.
In fact, the Chancellor has gone even further, and, from 2002, the Children's Tax Credit will be doubled in the first year after a child is born. This is a particularly welcome proposal that will help new parents when their family finances are under most pressure.
The increase in the Sure Start Maternity Grant to £500 covering one-off costs for babies is welcome, although we would like to see eligibility increased. At current take-up rates, although one in three children are born into poverty, this payment is awarded in respect of only around a quarter of births.
The TUC is extremely pleased that the Government will be implementing new rights to paternity leave and adoptive leave. But for some fathers or adoptive parents without contractual schemes a flat rate payment of £100 will be too low for them to take the leave to which they are entitled.
The extension of paid maternity leave from 18 to 26 weeks is very welcome. However, we are disappointed that the current earnings-related period of maternity pay of only 6 weeks at 90% of earnings has not been extended. Research shows that many women, especially lower income women and lone parents, will still take much less than 26 weeks’ leave because a flat rate will not meet their outgoings. Whilst the increase of the flat rate to £75 in 2002 and £100 in 2003 is still significant, £100 is less than half current average earnings of full-time female manual employees. It is unclear why the maternity pay increases have been phased given the healthy state of public finances.
The Chancellor’s package of measures to help today’s pensioners is welcomed by the TUC. The above inflation increases to the basic state pension over the next two years are particularly encouraging. These increases help to redress some of the losses incurred as a result of the abolition of the earnings link in 1980 - although the TUC is disappointed of course that the Chancellor has not restored the link with rises in average earnings. The confirmation that the Minimum Income Guarantee (MIG) will in future rise in line with earnings and the changes to, and ultimate abolition of, the capital limits are also welcome.
In its detailed response to the Department of Social Security, the TUC welcomed the principles behind the Pension Credit. We share the Government’s commitment to help pensioners with low and modest incomes. However, we would like to see further details of the new Credit, particularly its interaction with Housing and Council Tax Benefits. If the Pension Credit is to be successful, the Government must ensure that it is easy to understand and claim.
Protecting occupational pensions: the Minimum Funding Requirement
Defined benefit (DB) occupational pensions are, in the TUC’s view, the best way for working people to save for retirement. They are the best guarantee of a secure and generally adequate income. Around 10 million working people - the majority of them trade union members - belong to such schemes and a further 10 million are drawing benefits, mainly from DB schemes. Given their importance to working people and their families, it is essential, that employers are encouraged to establish and, where they exist, maintain DB schemes. Moreover, as the Maxwell case clearly showed, the interests of scheme members must be given priority.
The TUC recognises that there are significant flaws in the current Minimum Funding Requirement (MFR) and that it has not achieved its objectives. For example, the MFR has not given sufficient protection to members whose pension scheme is wound up. The proposal to introduce a continuing funding standard for occupational pension schemes mirrors the suggestions made by the TUC in its response to the DSS consultation Security in Retirement. However, we are concerned that a scheme-specific funding test will not provide members with a sufficient protection and a statutory test should be put in place. We are also concerned that the proposals around the ‘recovery plan’ are insufficiently robust. Whilst Opra has some welcome powers in relation to monitoring the recovery plan, it would appear that Opra has no powers to assess whether an appropriate plan that protects scheme members has been put in place. The TUC will be commenting on the MFR proposals in full.
The TUC welcomes many of the measures contained in the final report of the Myners Review of Institutional Investment. In particular, we welcome the recognition of the important role played by trustees in running occupational pension schemes. In the TUC’s view, trustees - and member-nominated trustees in particular - pay a vital role in safeguarding the interests of scheme members of occupational pension schemes and ensuring the good running of these schemes.
The TUC shares the analysis that fund managers are reluctant to actively engage with the companies in which they invest and encourage higher standards of corporate behaviour. The TUC has taken a number of steps, within the UK and internationally, to ensure that trustees are aware of their responsibilities as institutional investors and become active shareholders. To this end it is particularly welcome that the Chancellor has accepted the proposals to incorporate the US ERISA principles on shareholder activism and legislate to require trustees to be familiar with investment issues. These measures reflect long-standing calls for government action by the TUC.
More worrying, however, are the proposals on surpluses. The TUC firmly believes that surpluses should be used to benefit scheme members and beneficiaries, for whom the scheme was established. It should not become easier for employers to take a refund of contributions from surplus pension fund assets.
The TUC will be responding in full to the Myners’ proposals.
The TUC budget submission argued that some of the budget surplus should be used to help to meet short-term pressures on the key public services, including recruitment and retention problems. The TUC therefore welcomes the Chancellor's announcement of additional public funding for key public service priorities over the next three years. Education and health will get an extra £1 billion each, whilst a third of a billion will go to help tackle drugs.
Education's £1 billion includes:
£600 million to head teachers in England to modernise buildings and equipment;
£200 million for new recruitment and retention initiatives for teachers.
Health's £1 billion includes:
£450 million to NHS trusts in England for new equipment and to replace the worst wards;
a new fund for the recruitment and retention of key staff in the health service.
The TUC's submission to the Second Comprehensive Spending Review (CSR) argued that to achieve excellent public services we must have excellent public servants. Ensuring that public servants are fairly treated will play a significant part in a wider strategy of improving the quality, efficiency and delivery of public services. Extra money for recruiting and retaining key public sector staff is therefore very welcome, but the new initiative must be supplemental to the achievement of fair pay throughout the public services.
The Chancellor made one explicit pre-election tax cut through a modest extension of the 10p tax band by over-indexing the starting rate band by £300 from £1,520 to £1,880. This gives all tax payers a cut, not just those who only pay tax at the 10p rate. While the TUC continues to believe that investment in public services and help for manufacturing are higher priorities, this tax cut of £750 million is mildly redistributive and broadly consistent with the government’s strategy.
This Budget confirmed the Government’s key future priorities - help for the poorest pensioners and for families and working parents; the encouragement of investment in research and development and skills and disadvantaged communities; and extra resources for the priority public services. Of course, there are many areas where we would like the Government to go further and faster. But on balance, this Budget set out a positive and impressive policy agenda we look forward to developing in partnership wherever possible with the Government and employers.
The TUC has accused the government of providing information that is legally incorrect and designed to deprive workers of their rights in new draft guidance on the Working Time Regulations.
In its submission to the government's consultation on the new draft guidance the TUC says the new guide:
· is both less accurate and harder to understand than the guide it replaces
· its attempt to make the guide shorter means that it now contains advice which is legally wrong (and given there is also a new "draft short guide" accuracy must be preferred to brevity)
· the definition of a worker in both draft guides is simply wrong, and would have the effect of wrongly excluding many workers from the protection of the Regulations
· the attempt to explain the changes made to the regulations made before Christmas that weaken protection for white-collar workers is lamentable. The examples provided do not reflect the explanation given earlier in the text and are "contradictory, unrealistic and unhelpful".
The submission goes on to object to the "tone" of the guidance as being pro-employer.
TUC General Secretary, John Monks, said:
"This guidance is unacceptable. The government has already caved in to employers by introducing amendments that weaken the working time regulations. Now it wants to publish guidance that tell employers and employees that it is even weaker than it is in reality.
"The government has to make its mind up whether it wants work to be family friendly or not. It will not change working life by asking employers to be nicer, but by giving workers rights. Some employers are progressive but this week's research showing just how many mothers give up full time work because of the pressure of the long hours culture shows just how far we have to go."
Draft Guidance
The TUC is strongly opposed to revising the Guide to the Working Time Regulations, other than to include the text relating to the amendment and other updates. In brief, our main objections are as follows (these points are expanded below):
· the original A Guide to Working Time Regulations was greatly superior in accuracy and clarity than the current draft `Your Guide';
· the current draft guides both substitute brevity for clarity to the extent that they are an incorrect statement of the law;
· the definition of a worker in both draft guides is simply wrong, and would have the effect of wrongly excluding many workers from the protection of the Regulations;
· we strongly oppose leaving out the worked examples in the draft `Your Guide';
· there is no acknowledgement that some workers have a legal right to superior entitlements through their contracts and collective agreements;
· the explanation of collective and workforce agreements is wholly inadequate;
· the examples of how workers would be affected by the unmeasured working time amendment do not reflect the explanation given earlier in the text and are contradictory, unrealistic and unhelpful. They should be withdrawn.
There is clearly a need to revisit the original A Guide in the light of the amendment of 1999. In addition, the provisions on paid holidays can now be simplified and brought up to date to reflect the current entitlement of four weeks paid leave. Where the law has been developed or clarified by case law (as with, for example, the definition of night work) it would be useful to reflect this in the guide. Other than these practical revisions, we see no need to change the original A Guide which in our experience has proved a useful document to both workers and employers. We would question the Government's motivation for changing the original Guide, and point out that shortening the guidance is not the same as simplifying the law and will not answer the (unfounded, in our view) criticisms of the WTR expounded so vociferously by some commentators.
The current draft `Your Guide to the Working Time Regulations' substitutes brevity for clarity to the extent that in some instances it is an incorrect statement of the law. Given that the Government is introducing a short guide to the WTR (henceforth, `Short Guide'), it is particularly unclear why the original A Guide should also be shortened. In our experience, more explanation rather than less makes it easier for people to see how the WTR relate to their particular situation. The current draft is likely to leave workers and employers with more rather than less questions about their rights and obligations.
For example, one glaring legal inaccuracy in both draft guides is in the definition of a worker. This is simply wrong in both draft guides, and tends towards the definition of employee rather than the more inclusive definition of worker laid down in the WTR (and indeed mirrored in the Employment Relations Act and the National Minimum Wage Act). This is just one area where it is totally unacceptable to suggest that the current drafts are adequate.
We strongly object to the tone of much of the two draft Guides. For example, the statements in the draft Short Guide telling employers that they do not have to ensure that workers take their breaks or annual leave are totally unacceptable and will encourage abuse and avoidance. Elsewhere the Government has held up the WTR as one example of its achievements in helping people balance work and family commitments. The tone of these draft Guides does not reflect a commitment to family friendly policies.
The draft Guides both stray beyond being mere explanations of the law in a way which is unhelpful and will encourage abuse. Either the Government should promote best practice in working time arrangements, in which case two very different documents would be required; or, it should produce dispassionate and accurate explanations of the law, which these draft Guides are not. We suggest that an accurate statement of the law is what is required in this case.
There are some particularly glaring gaps. In some cases information available in the original Guide has been omitted and henceforth will not be available except from the Regulations themselves - surely harder for the average layperson to follow than the original Guide. These include:
terms and conditions set by contracts and collective agreements: there is no reference to the fact that some workers will have higher entitlements to those laid out in the WTR because of the terms and conditions laid out in their contracts or under a collective agreement; we consider that this omission will encourage abuse;
the role of collective agreements in modifying the limits and reference periods of the WTR: this is not adequately covered. In addition, there is no explanation of what constitutes a workforce agreement or the election of workplace representatives. We consider this also to be a serious omission;
worked examples - the omission of these, will add to the difficulty of workers and employers in calculating entitlements; the worked examples given in the original Your Guide on the calculation of average working time (2.15), the calculation of night work (3.17) and payment in lieu of termination have proved particularly useful;
workers enforcing their rights - the omission of a section on what to do if you are not receiving your rights as a worker in the draft Short Guide is unacceptable. The section More About Enforcement in the draft Your Guide is totally inadequate. In both guides it should be made clear in this section that trade unions, CABs and law centres are also able to give advice on working time issues and in particular are able to assist workers wishing to take a case against their employer.
It has been brought to our attention that the Health and Safety Commission have significant concerns about the implications of this proposed guidance for effective enforcement.
Short Guide
The draft Short Guide in its current form is inaccurate and is unacceptable. It is also inconsistent with the longer guide. We see no particular need to produce a Short Guide, and if it is not possible to produce an accurate statement of the law it should not be issued. In its current form it will add confusion and encourage abuse.
Unions won £320 million in compensation for their members who were victims of illness and injury last year, according to a TUC survey out today (Thursday). But, the survey says a busy union legal department is a sign of failure - many workplace accidents could be prevented if employers ensured their staff’s environment was safe.
The TUC’s annual Trade Union Trends survey, Focus on services to injury victims, gives an overview of changing trends in union legal services and shows:
unions took on 54,655 new cases in 1999 and concluded 51,936 during the year. The majority of cases are civil but a small percentage are criminal cases - there were 2,705 new criminal cases and 1,558 criminal cases resolved in 1999.
the £320 million payout is the second highest reported in Trade Union Trends - working out at an average of £6,150 per case
more unions are offering help in non work-related cases than before. Thirty-three of the 37 unions responding said they now offer non work-related legal services, from claiming social security benefits to representation in road traffic accidents.
there are literally hundreds of different types of injury or illness cases being handled by unions but they specifically cite stress as an issue. There were 516 new stress cases in 1999.
unions report trends including an increase in RSI cases, asbestosis and vibration white finger
legal services continue to be good value for money with unions spending an average of £6 a year per member
TUC General Secretary John Monks said: 'This survey shows it definitely pays to be in a union. Union legal services remain the best and often only source of help when things go wrong. But unions don’t want as many cases as they are getting. The cases are a sign that too often there are inadequate health and safety checks. And in too many cases, victims are offered no rehabilitation to get them back to fitness and back to work.'
John Richards was forced to leave his job as a firefighter after he was victimised and bullied by his boss. John, who worked with West Glamorgan Fire Service, was transferred to a new job, despite the Brigade’s occupational physician’s warnings that the transfer was likely to cause John to suffer a nervous breakdown. The new job did lead to stress and depression and John was forced to leave on medical grounds. The FBU took up his case and after a long battle, West Glamorgan Fire Service agreed to settle out of court. John’s settlement was in excess of £100,000.
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John Gill, a teacher in Portland, worked in the same school lab for 15 years. For years he suffered from headaches and lethargy during term-time, especially in the winter, although he would feel quite well in the holidays and at weekends. He got so ill that he was off school sick for a whole term in 1992. On his return he suffered another medical setback. Instead of taking his health problem seriously, his employer took out disciplinary action against him. This was dropped, but still nothing was done about his health.
The situation came to a head in 1994 when John returned to work after Christmas and found the lab contaminated by combustible gases. He evacuated the room but by the end of the day he had to be taken home - he never returned to work.
His union, NASUWT helped him with a six year battle for compensation and John finally won £562,000. However John can’t work, drive or even help his children with their homework. He says: ‘While I would not wish such an experience on anybody else, I would hope that, if in the same position, they too were lucky enough to have the backing and support of NASUWT.’
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Susan Macey faced the nightmare scenario every bank and post office employee dreads. The NatWest branch where she worked was raided and Susan, who worked at the front of the bank with no protection, was held with a gun to her head.
Instead of offering support and understanding, the bank demanded Susan was back in her job the day after the raid. They ignored her requests to be moved to a back-office job and never produced the counselling they had offered her.
Susan began to suffer panic attacks and felt under extreme stress at work, and although she was eventually offered a back-office job, she took medical retirement.
Unifi took up Susan’s case and paid for her to take a claim to the Criminal Injuries Compensation Authority where she won compensation of £20,000.
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NUT member Margaret Finch won more than £7,000 compensation after a van crashed into the back of her car as she was driving to school. The impact sent Margaret’s car careering into the middle of the road where she was hit again by oncoming traffic. She suffered whiplash and had to take several weeks off work. The NUT solicitor won the case by showing that the van driver had a history of blackouts.
Margaret said: ‘The union was marvellous. I just want to make sure that members realise that by joining the union they are covered on their journeys to and from work. I don’t think everyone is aware of this.’
note * A FULL REPORT ON TUC 2001 WILL BE PRODUCED ON THIS SITE PROVIDED
BY GEOFF COLWELL DIVISIONAL REP.
The TUC is today (Wednesday) calling on the government to stand firm in the face of employer claims that any new legal right allowing parents to change their working hours would be an unnecessary burden on UK businesses.
In its submission to the Work and parents green paper released today (Wednesday) to coincide with the opening of its 71st Women's Conference in Scarborough, the TUC says that if the government is serious about helping working parents cope with the demands of work and home, it should press ahead with proposals to allow workers to request a reduction in their hours.
And before it introduces new flexible rights to help working parents, the TUC says the government could help several million parents at a stroke by dropping its opposition to the TUC parental leave case currently awaiting consideration by European judges.
Last May the TUC took the government to court over its interpretation of the Parental Leave Directive. The TUC argued that by only allowing parents with children born after 15 December 1999 to take the 13 weeks unpaid leave, the government was misinterpreting the Directive, denying some three million parents their rights to parental leave.
To date, some half a million parents - whose children were born before the December 1999 cut-off and who have now had their fifth birthdays - have lost out on the parental leave to which the TUC believes they are legally entitled. The TUC is hopeful that this week will see the European Court announce a date for the case to be heard.
The TUC green paper submission - Rights not favours - urges the government not to cave in to the employer lobby, and says that only a legal right would introduce true flexible working into UK workplaces. Although many good employers already realise the benefits of offering flexible working to their staff, the current voluntary approach will never be enough, says the TUC.
Rights not favours reminds the government that a right to work reduced hours has overwhelming public support. The submission quotes a recent EOC poll which found that 79% of respondents said that parents should have a legal right to move from full to part time working.
TUC General Secretary John Monks said: 'The employer lobby are united in opposing moves to make work more family-friendly. But they try to have it both ways. One minute they say nothing needs to be done because companies are already making changes. The next minute they say that helping new parents manage work and home life better is an intolerable burden on business that will lead to mass unemployment.
'The truth is that this is a knee-jerk response to reforms that once implemented will become uncontroversial and simply taken for granted. In the meantime British businesses who oppose reform risk being labelled anti-children. Only new legal duties can help end our unhealthy long hours culture which is as bad for workers' families as it is for their employers. If the rest of Europe can afford to be flexible in the interests of parents, should it really be so difficult to achieve over here?
'The government could act now to make work more family-friendly by ceding to the TUC's parental leave legal arguments. And of even greater benefit, would be the start of paid parental leave. Sadly in its current unpaid form, parental leave exists as little more than a paper right, with too few parents being able to benefit.'
UK workers work by far the longest hours in Europe, making new parents desire to work fewer hours even more understandable, says the TUC. Across Europe under 10% of full-time employees work for 48 hours or more (compared to 23% in the UK). And almost a quarter of UK male full-time employees with dependent children work for more than 60 hours a week.
The TUC says that a number of European countries have introduced laws allowing parents to change or reduce their hours, without a detrimental effect on the competitiveness of companies. In the Netherlands for example, a new law was introduced last July , giving employees the right to change their working hours from full to part-time.
Rights not favours would like to see the government press ahead with measures to:
allow mothers who return to work before the end of their maternity leave to work reduced hours for the remainder of the period for which they could have been off work.
introduce a legal framework to encourage employers and parents to agree requests for reduced hours or more flexible working. Workers should have their requests accepted unless the employer can demonstrate a good reason why not. Any refusal to grant changes in hours should be given in writing.
ensure small businesses are not exempted from any new flexible working proposals.
The TUC submission also contains details of recent TUC focus group research with 20 new mothers that found several examples where employers had refused to consider a reduced hours return to work:
When Angela had her first child five years ago, she asked her building society employer if she could return to her job as a branch supervisor on a part time basis at the end of her maternity leave. Angela's request was refused because her employer said the branch already had two many part timers (there were two), and that supervisors had to work full time. Following her employer's inflexible response, Angela decided not to return to work, and found a job where she was able to work more suitable hours.
Two years ago, Louise became pregnant after working for a computer training company for seven years. When she asked the director of the company if she could come back part-time after maternity leave, she said that he 'put her through hell'. As a result, she decided not to go back to her job after maternity leave, despite being the main wage earner in her household. She now works part time for a company that allows her to work from home for some of the time.
Natasha has decided not to return to work, mainly because she wants to spend as much time as possible with her son, but also because if she returned to her job as PA to a financial consultant, she would want to work part-time. She doesn't believe her employers would agree to it. 'There's no way they would allow me to work less hours. Once you're in work, there's lots of pressure and they expect you to be at their beck and call.'
Flexibility and parental leave will be just two of the topics up for discussion at the TUC Women's Conference in Scarborough which opens this afternoon and runs until Friday. Minister for Women and Leader of the House of Lords, Baroness Jay addresses the 400 delegates today, and TUC General Secretary John Monks and TUC President Bill Morris will give speeches tomorrow (Thursday).
Extreme monitoring by supervisors and not being allowed to take adequate rest breaks, were the top two concerns of call centre workers calling the It's your call hotline, according to a TUC report
The report, Calls for change, is released as Channel 4 News screens an investigation into some of the call centres reported to the TUC's hotline, which took 733 calls over two weeks in February.
Calls for change, features a 'league table' of complaints from call handlers. One in four complained about extreme monitoring of their work. And most of these (53%) said they were monitored over when they went to the toilet and the length of time they spent there. Some had to ask permission to go and others complained of being hauled up in front of bosses to explain why they were going so often.
15.5% said they were not given adequate breaks at work and some of these said they were given no breaks at all, even though they were working more than a six hour shift - against the rules of the Working Time Directive.
Over one in ten of the callers (13%) complained about health and safety issues. Some said they believed they were developing hearing problems as a result of working on the phones - others complained of acoustic shock. Almost one in ten (9%) called to complain about wages. Many of these said their wages and bonuses were docked if they turned up to work late.
Calls for change includes a number of anonymous case studies:
Anna works for a call centre in South Wales. She says no-one is allowed to leave their desks without permission and, although there are sometimes up to 30 minutes between calls, magazines and books are not allowed. Anna says there is no policy for dealing with abusive calls other than that call handlers are not allowed to hang up on anyone - no matter what the circumstances.
'We have an adult channel and have to take calls from people wanting to subscribe. These calls come late at night - which is why I hate doing nightshifts. There have been a few times when I've taken orders from men and I can tell that they are masturbating while they are on the phone to me.'
Tracey works in a call centre in Coventry. She says although her bosses provide drinking water, they charge 5p for every plastic cup used.
'They say the water in the women's toilets is drinkable - but we are not so sure. Until recently we understood that you shouldn't drink the water in the toilets. But after they started charging us 5p for each plastic cup of water, they put a sign above one of the sinks saying the water was drinkable. But that water comes from the same pipe as all the other taps.'
Lorraine, from another South Wales call centre, has been off sick for the last two months with depression and stress, caused by work.
'Although I had been signed off sick by my doctor, my bosses expected me to ring in every day. We are really heavily monitored. We are timed whenever we go to the toilet, and if we spend too much time there, we have to explain ourselves.'
Daniel works in a call centre in the South West. He says his team leader expects him to come in ten minutes early every day, without pay, just to log onto his computer.
'Although we usually come in early for no pay, if we are even one minute late into work, we automatically lose 15 minutes pay. But if we are in the middle of a call at the end of our shifts, we have to stay behind - again without pay.'
Calls for change also shows:
calls came from all over the UK, although the majority came from Scotland (18% of calls) and Wales (13%). The cities that featured most heavily on the line were Glasgow (7.5% of all calls), Swansea (6%), Cardiff (4%), and Sheffield (4%).
almost half the callers worked in organisations with more than 300 employees (44.5%), most said they were customer service advisors (33%) and call centre agents (29%). But 8% of calls came from call centre managers who said they were fed up with the way they were expected to treat their staff.
69% of callers to the line were not union members. And the unions organising in call centres say the campaign has raised their profile and led to increased membership.
Good employers agree with the TUC that this kind of bad practice is unacceptable. The TUC asked The Co-operative Bank and Qualiflyer in Hammersmith to respond to the case studies in calls for concern.
Mags Thomas, UK Human Resources Manager at Qualiflyer, a call centre selling airline tickets for several major airlines, said:
'The case studies suggest a very short-sighted view is being taken - an already stressful situation caused by inadequate training, rest facilities or flexible working, is compounded by an over-controlling style.
'Call handlers' jobs are very challenging and, in the current market, good candidates are hard to find. The poor practices of some operators not only costs them staff, but impacts on all call centres by creating poor public relations for the industry as a whole.'
Sheila MacDonald, Executive Director of Customer Services at The Co-operative Bank said:
'I am saddened by the findings in these case studies. It seems that some employers believe that treating staff harshly is a good way to run a business. We have found that an empowered workforce, that is treated fairly, is a happy workforce. Our customers enjoy the benefit of a successful business attended by helpful, happy staff.'
The TUC argues that call handlers, and those looking for work in call centres, should check employment conditions against a TUC checklist. Employers should offer:
positive flexible working
ways of preventing occupational voice loss and hearing problems
a healthy and safe office environment
adequate breaks - especially after distressing or abusive calls
TUC General Secretary, John Monks, said:
'Although most call centres offer decent terms and conditions for their staff, our hotline shows that a significant minority offer poor employment terms - some are operating under sweatshop conditions.
'Insisting that staff put their hands up to go to the toilet, stay on the phone even when callers are abusive, and preventing them from having the breaks and holidays they are entitled to by law, is no way to run a business - and our report shows that good call centre employers agree.'
Racism in Britain's workplaces is intensifying as black and Asian people are now more than twice as likely to be unemployed as their white counterparts, says a new TUC report Black workers deserve better released today (Friday 27 April). And to reverse this unacceptable trend the TUC wants all employers to be legally required to promote good race relations in their organisations.
Black and Asian joblessness today stands at 12 per cent, while among white people it is just five per cent. This position is worse than in 1990 when black and Asian unemployment was lower at 11 per cent and higher among the white population at six per cent. This trend has grown worse despite unemployment dropping below one million. Black and Asian workers have clearly not gained equally from Britain's expanding economy compared to their white counterparts.
The TUC report calls on the Government to take further action to reverse this trend. It wants the newly amended Race Relations Act to be extended to give private and voluntary sector employers the same legal obligations as those imposed on all public authorities. All employers should be legally required to take positive action to promote good race relations, and take action to prevent any form of racial discrimination.
The report is launched on the opening day of the TUC's Black Workers' conference at 2pm in the Dewars Centre, Perth. Britain's leading black trade unionist and TUC President, Bill Morris, of the transport workers union, will address the conference.
John Monks , TUC General Secretary, said: 'Too many employers are ignoring the lessons of the MacPherson Inquiry into the murder of Stephen Lawrence. They have to face up to the reality of racism in their organisations and act against it. Despite unemployment dropping below one million our black and Asian workers are still suffering appalling discrimination.
'And this is made worse as black and Asian workers are passed over for managerial jobs, even though they have skilled themselves by gaining more higher educational qualifications. All employers should monitor their recruitment and promotion procedures and reverse this unacceptable position.'
In some of Britain's regions the situation is even worse. In both Yorkshire and Humberside and the West Midlands five per cent of white workers are unemployed compared to 15 per cent of black and Asians. But even after getting a job black and Asian workers still face discrimination as they find it increasingly difficult to get managerial posts. And this occurs despite black workers making serious efforts to equip themselves for promotion. The proportion of black and Asian workers educated to degree level or above increased from 21 per cent to 26 per cent over the last 18 months. In the same period white employees with similar qualifications only increased from 16 per cent to 17 per cent.
There were 18.7 per cent white managers in Summer 1999 and 19 per cent in Winter 2000/1 - up 0.3 per cent. In the same year the proportion of black and Asian workers in managerial jobs remained static at 14.9 per cent.
Summary of recommendations in Black workers deserve better
Extension of the enforceable general duties of the Race Relations (Amendment) Act 2000 to cover the private and voluntary sectors.
Adoption of the definition of indirect discrimination from the European Union Race Directive for use in domestic legislation.
Organisational reviews to identify whether institutional racism exists within workplaces.
Employers and trade unions working in partnership to develop clear action plans to tackle institutional racism from the workplace.
Employers and trade unions working in partnership to set targets, with clear time limits, to achieve fair representation of black workers at all levels in the workplace.
Note* The CWU holds a Black Workers Conference and we can send delegates if they let us know of their interest. This has been quoted by some members as discriminatory in itself. However the Black Workers Conference was set up to encourage miniroty groups to participate in democratic trade unionism. It is a positive step to encourage and nuture new talent. If anyone doubts the need for such a conference then stand in the CWU conference hall this year and try to find a black comrade. Also look at the NEC and there is not one Black official. Jeff Thomas
Nearly half a million (485,000) schoolchildren are working illegally, according to a new TUC/MORI survey out today (Wednesday). And over 100,000 schoolchildren admit to playing truant in order to do paid work.
Class struggles, a survey of 2,500 schoolchildren in England and Wales, reveals nearly half a million children are working illegally. It is against the law for any child under 13 to do any kind of paid work, but the survey shows that one in four - 289,000 - say they do. Thirteen year olds are only allowed to do paid jobs linked to 'cultural, sporting, artistic or advertising work' and even then only with a licence from their local authority. But 35 per cent of 13 year olds (196,574) said they were either working during term time or had worked in the last summer holidays. The vast majority worked as baby-sitters or had paper rounds, both of which are illegal.
On top of this, many more children are working longer hours than they are legally allowed to. No-one under 16 is allowed to work before 7am or after 7pm. But almost half (45%) of the working children questioned said they worked after eight at night, and 23% said they worked before six in the morning.
The MORI survey of 2,500 schoolchildren shows that illegal school age working has not declined since the last TUC survey four years ago, despite the introduction of the European Young Workers Directive, designed to tighten working time and ensure paid work did not have a negative impact on students' school work.
The 2001 survey shows:
one in ten children admitted to playing truant in order to do paid work. Boys are more likely to skive off school for this reason than girls (12% as opposed to 5%).
one in four children (25%) under 13 admit to doing paid work either during term time or in the summer holidays, even though this is illegal. Just over a third of schoolchildren (36%) do some kind of paid work. The older children are, the more likely they are to have a job. Almost half (44%) 15 and 16 year olds are working.
children are also working illegal hours. Although, according to the European Young Workers Directive, no-one under 16 is allowed to work before 6am or after 8pm, 45% of children in paid work have worked after 8pm, while almost a quarter (23%) have worked before 6am.
term-time working negatively affects a significant proportion of schoolchildren - 29% of respondents said they often or sometimes felt too tired to do homework or school work.
the most common jobs are baby-sitting (37%) and paper rounds (35%), followed by cleaning (19%) and working in a shop (16%). Girls are most likely to have jobs as baby-sitters and boys are most likely to have paper rounds.
although one in ten (11%) schoolchildren say they earn more than £5 an hour, most are paid much less. Around a third (31.5%) earn £2.50 an hour or less. Nearly one in five (17%) of those working in term time get less than £2 an hour.
Although not all of the European Young Workers Directive has been brought into force, some key parts were introduced in June 2000, including:
children under 16 should not work more than two hours on a school day or 12 hours in any school week
during school holidays, children under 15 cannot work more than 25 hours a week and 15 year olds have a limit of 35 hours.
According to the TUC poll, 30% or 320,286 children with term time jobs said they did more than two hours a day. One in ten reported working more than five hours a day.
Local authorities have responsibility for enforcing these rights, but the TUC believes councils are not doing their jobs properly. The TUC would like to see more spot checks in workplaces to ensure unscrupulous employers are not taking advantage of schoolchildren.
TUC General Secretary, John Monks said: 'It's fine for kids to earn a bit of extra pocket money with a paper round or Saturday job. But it becomes a real problem if they are missing school and finding they can't keep up with school or homework.
'The law exists to make sure children aren't exploited and the TUC believes teenagers who work can gain a useful insight into working life. But in many cases, neither children or their parents, know what they are allowed to do - and it seems that many employers don't know the law either.'
The MORI poll is based on 2,475 interviews with children aged between 11 and 16 in maintained schools in England and Wales. Interviews took place between 15 January and 2 March 2001.
Figures are based on numbers of 11-16 year old pupils in maintained schools in England and Wales.
