Enterprise and Regulatory Reform Bill

 Memorandum submitted by UCATT (ERR 10)

1. Introduction

1.1. UCATT is the largest specialist union for construction workers in the UK and the Republic of Ireland, with members both in the public and private sectors. UCATT is the lead union among the signatories to the National Working Rule Agreement of the Construction Industry Joint Council and the Joint Negotiating Committee for Local Authority Craft and Associated Employees. UCATT is represented on a number of construction industry related bodies by the General Secretary including the Strategic Forum for Construction, the Construction Industry Training Board and the Construction Skills Certification Scheme.

1.2. UCATT’s members in private companies are builders and craftspeople, refractory users, steeplejacks and lightning conductors and workers in the demolition industry. UCATT also represents workers in Local Government, the NHS, the Prison Service and the Ministry of Defence.

1.3. The construction industry has been badly affected by the recession and has seen a high level of redundancies in recent years: 112,000 in 2008, 166,000 in 2009, 92,000 in 2010 and 71,000 in 2011 according to national statistics. [1] Job creation and economic growth is therefore of the utmost importance to UCATT and its members. However, UCATT does not accept the assumption that current legislation to protect workers is a barrier to economic growth and we outline our key concerns overleaf.

2. Part 2, section 7: conciliation before institution of proceedings.

2.1. UCATT has concerns about the "requirement to contact ACAS before instituting proceedings". Conciliation can be a very useful tool in settling workplace disputes. However, UCATT is concerned about the element of compulsion. Conciliation may not always be appropriate, for example in some cases of discrimination or harassment.

2.2. In addition, this further stage places greater onus on the employee and creates an extra layer of administration. This will reduce the amount of claims submitted correctly and result in more claims being struck out on technicalities, regardless of their merit. This can only reduce access to justice.

3. Part 2, section 11: composition of Employment Appeal Tribunal.

3.1. UCATT opposes the proposal that "proceedings before the Appeal Tribunal are to be heard by a judge alone." UCATT believes that the use of panels and the inclusion of lay members is one of the strengths of the Employment Tribunal system.

3.2. Lay members contribute valuable knowledge of industrial relations and the workplace. The definition of ‘reasonableness’ can be open to interpretation and is best determined by a panel with a range of backgrounds and experience.

4. Part 2, section 12: power by order to increase or decrease limit of compensatory award.

4.1. UCATT is also concerned by the power to decrease awards and a potential cap of 52 weeks’ pay as this could reduce the current loss of earnings awards. Such a cap ignores the loss of pension contributions. If employees are bringing cases of unfair dismissal following sackings for trade union activities or raising health and safety issues, they could be faced with lengthy periods of unemployment as the construction industry is blighted by blacklisting. This means that unfairly dismissed workers would not be able to recover their full losses.

4.2. Of particular relevance to UCATT is the option to set different amounts for different types of employers, for example lower awards for workers in SME businesses.
This would disproportionately affect construction workers as over 90% of construction companies (87.8% of civil engineering companies; 93.3% of specialised construction companies; 94.5% of building construction companies) employ fewer than 10 staff. [2]

5. Part 2, section 13: power of employment tribunal to impose financial penalty on employers.

5.1. UCATT believes that the proposed penalties of up to £5,000 for losing employers where there are aggravating features, are very low, especially for companies that have repeatedly flouted employment law. The provision that 50% of the penalty will be waived if payment is made within 21 days, means that larger companies with easier access to finance, may end up paying smaller fines than SMEs.

6. Part 2 , section 14: disclosures not protected unless believed to be made in the public interest.

6.1. UCATT vehemently opposes this proposal as it makes it much more onerous to qualify for protection, as the whistleblower needs to comply with "in the public interest" AND at least one of six other criteria.

6.2. Whilst understanding that the amendment is intended to prevent workers using whistleblowing protection for breaches of their own contracts, UCATT believes that this will have many unintended consequences and will act as a deterrent to genuine whistleblowers.

6.3. UCATT foresees serious problems in the construction industry as blacklisting is a genuine threat. Workers with legitimate concerns about health and safety may find that they are unable to gain employment again after raising their issues if they are not offered adequate protection against reprisals.

7. Part 5, section 54: unnecessary regulation: miscellaneous.

7.1. UCATT is concerned about building sunset clauses into new regulations and including a presumption that laws will be scrapped unless a government department objects. UCATT opposes any measures that could have the effect of reducing the number of inspections in health and safety when 50 construction workers died in 2010/11. [3]

7.2. UCATT believes that the proposed amendments of the Regulatory Enforcement and Sanctions Act 2008 could lessen the number of health and safety inspections at a time when inspections are being reduced because of cuts to the budget of the Health & Safety Executive.

June 2012

[1] http://www.ons.gov.uk/ons/rel/lms/labour-market-statistics/february-2012/table-red02.xls Redundancies by industry, age, sex and re-employment rates (not seasonally adjusted). This table is updated four times a year in February, May, August and November.

[2] http://www.ons.gov.uk/ons/rel/bus-register/uk-business/2011/index.html , table B4.1.


[3] http://www.hse.gov.uk/statistics/fatals.htm

Prepared 26th June 2012