Citizens Advice Bureaux across Scotland dealt with over 40,000 employment issues in 2018-19 alone, and recorded more than 300 detailed case studies related to employment. Employment advice is consistently one of our top five advice areas, and the advice categories “terms and conditions” and “pay and entitlements” are the most commonly recorded client inquiries. Between, 2016-17 and 2017-18, employment issues related to terms and conditions, and pay and entitlements grew slightly as a proportion of all employment issues we dealt with. This Citizens Advice Scotland response is based on our previous research in this area and analysis of detailed case studies submitted by frontline advisers between April 2018 and September 2019[i].
Summary of key points
CAS welcomes the proposal to set up a Single Enforcement Body for employment rights. This is a long-standing recommendation of CAS in the form of a “Fair Employment Commission”[1]. A new single enforcement body should:
- Have a focus on protecting rights and reducing harm across all employment statuses
- Offer a single point of contact for workers and employers
- Be a presence in communities across Scotland
- Bring new resources and tools
- Be effective in a devolved context
A Focus on Protecting Rights and Reducing Harm
Currently, responsibility for enforcement is disproportionately on the shoulders of individual workers. This disregards the power imbalance between workers and employers, and undermines good employers by making it too easy for bad employers to “risk” breaches without consequence. We believe that a single enforcement body can improve this situation, but only if it focuses its power on the behaviour of employers and remains independent from enforcement activity against individuals. In fact we believe that a single enforcement body will fail in its ambition to protect the most vulnerable workers and to tackle the most unscrupulous employers if it also takes on enforcement roles against individuals.
CAS believes that advice is fundamental to rights enforcement, but multiple providers can be confusing for those seeking advice. Rather than seeking responsibility for advice a single Enforcement Body could contribute and co-ordinate funding for specialist employment advice provision, which has seen a drop in recent years.
“Levels” of breaches should be considered holistically. The harm and severity of a breach should be considered not just in number of offences or workers affected, or the amount of money involved, but in terms of impact on individuals, and the knock-on effects of illegally low wages and other malpractice on living standards and health. This can include greater need for and use of public services and/or resources.
A single enforcement body must address and prevent exploitation of all workers, regardless of employment status. While CAS welcomes the potential for enhanced enforcement activity against poor employers, a single enforcement body should not inadvertently incentivise an increase in employers choosing employment statuses with fewer rights as the norm.
A Single Point of Contact
A single point of contact or “one stop shop” for enforcement is simpler for workers and employers to access, understand and engage with, as well as providing opportunities for efficiencies and intelligence sharing.
A single enforcement body should standardise enforcement, compliance, licensing and deterrence across different employment sectors and different enforcement areas where possible and practicable. This makes it easier for workers and employers to understand their rights and responsibilities and where to turn if they need help.
A Presence in Communities Across Scotland
The “one stop shop” approach should not undermine specific expertise, or nuanced or local approaches where appropriate. A single enforcement body needn’t and shouldn’t be overly centralised. National, regional and local economies may require a diversity of approaches.
In Scotland, many at-risk sectors operate in particularly isolated communities, requiring an effective and significant presence here, including senior staff with decision making powers and local accountability. Scotland is a diverse and distinct local economy from the UK as a whole, and also contains multiple diverse and distinct local economies and labour markets, which must be taken account of in an effective single enforcement body.
The Single Enforcement Body Must Bring New Resources
Crucially, the benefits we envision can only be realized if the body is established with a view to provide additionality when compared to the current system, not as a cost-cutting measure focused on short-term efficiencies. The current range of tools for enforcement is not sufficient. Even if all current tools were at the disposal of a single enforcement body, there would still be no effective enforcement of tribunal awards and no direct powers over company director disqualification (other than specific EAS powers over running employment companies). “Phoenix” companies have emerged as a common feature of some of the worst employment cases seen by CAB advisers: for bad employers it is easier in some cases to dissolve and re-establish almost identical companies than pay out tribunal awards.
Some of the most vulnerable (short-term or seasonal) workers cannot even access Employment Tribunals in relation to dismissals or redundancy as their continuous employment period will be less than the required two years by its very nature.
Effective in a Devolved Context
As well as recognising the risks of exploitation in Scotland’s remote and rural communities, it is important to consider how the new body will interact with devolved institutions. For example the Employment Tribunal system in Scotland operates within Scotland’s distinct legal framework and enforcement of agriculture wages is devolved. At present this is not recognised explicitly in the consultation document, and there appears to be no consideration as to how these systems will interact with a UK-wide single enforcement body.
[1] since at least 2012: https://www.cas.org.uk/publications/fair-employment
[i] Citizens Advice Scotland (CAS), our 59 member Citizen Advice Bureaux (CAB) and the Extra Help Unit (EHU), form Scotland’s largest independent advice network. Advice provided by our service is free, independent, confidential, impartial and available to everyone.
In 2018-19 the Citizens Advice Service network (CAB & EHU) helped over 272,500 clients in Scotland and dealt with almost 744,000 advice issues within the UK. With support from the network clients gained over £134 million and our self-help website Advice in Scotland received approximately 3.7 million page views.