Barnes: Highly irregular development
A power for the government to provide legal advice and representation to anyone involved in an employment dispute has been proposed for the Employment Rights Bill.
Among 263 government amendments to the bill published this week ahead of next week’s report stage in the House of Commons is also a right for the government to bring a case on a worker’s behalf.
An employment law specialist described these provisions – which have not been trailed or explained – as “highly irregular”.
The amendment says the secretary of state “may assist a person who is or may become party to civil proceedings in England and Wales or Scotland relating to employment or trade union law or the law of labour relations” by providing, or arranging to provide, legal advice, legal representation or “any other form of assistance”.
However, the secretary of state “may not provide, or arrange for the provision of, facilities for the settlement of a dispute”.
In the event that the assisted party is awarded costs, the secretary for state can recover the costs of the assistance from them.
Another new clause would enable the secretary of state, in a case where a worker has the right to bring proceedings about a matter in an employment tribunal, to do so in their place. Any award would still go to the worker.
It seems likely that these rights will be exercisable by the Fair Work Agency (FWA) proposed by the government to bring together existing state enforcement functions, including regulations for employment agencies, the unpaid employment tribunal award penalty scheme, enforcement of the national minimum wage, and statutory sick pay.
Charlie Barnes, head of employment legal services at accountants RSM UK, said new powers were “a highly irregular development”.
He explained: “There appears to be no limits on what claims this will apply to. Currently, the conciliatory service, ACAS, is the only government agency which is involved in tribunal claims to aid all parties to resolve disputes, outside of the tribunal process.
“This amendment gives a government agency the power to step in on behalf of a worker to bring a claim against their employer. It’s not clear what the intended purpose of this is, and its application will largely depend on what resources the government will have at its disposal.
“If this will be the remit of the FWA, the government may have to implement the business and trade committee’s recommendation of at least one FWA inspector per 10,000 workers by 2029, equating to approximately 3,000 inspectors.
“With only 600 national minimum wage, Employment Agency Standards Inspectorate and Gangmasters and Labour Abuse Authority inspectors currently, this will require some significant investment from government.”
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