UK employment law is increasingly reliant on statutory rights as a means of securing fairness in the workplace. However, there has been only limited consideration of how these rights should be enforced and implemented in practice. As Linda Dickens argues in the introductory chapter to this volume, ‘[the] enforcement landscape in Britain is the result of historical accident, political convenience and ad hoc responses to particular needs, rather than one informed by a logic of enforcement designed to make employment rights effective’ (p. 3). Given this lack of consideration, it is perhaps unsurprising that the majority of employment rights in the UK are enforced via individual claims to Employment Tribunals (ETs). This collection of essays, developed from a workshop held at the University of Warwick in 2011, seeks to explore alternative approaches to enforcement that may address some of the concerns arising from the UK's ongoing reliance on ETs. In Dickens's words, the aim of the volume is to ‘inform debate by critically exploring potential alterative, additional approaches to enforcement through ETs and other drivers for securing compliance, and by illuminating the way in which employment rights interact with organisational and workplace contexts’ (p. 3).
The book adopts an interdisciplinary approach, with contributions from lawyers, sociologists, and employment relations scholars. Consistent with this approach, Dickens broadly defines ‘making employment rights effective’ to include ‘ensuring compliance with statutory standards, giving substantive effect to formal rights, reducing the likelihood of adverse treatment and promoting fairer workplaces’ (p. 3). At the outset, this generates questions regarding what amounts to a ‘fair’ workplace, an issue considered in some depth in the chapters by Christopher McCrudden and John Purcell.
The chapters in the book may be broadly divided into three sections. First, Gillian Morris considers existing mechanisms for enforcement of employment rights, with a particular focus on ETs, examining the challenges inherent in a system that relies on individual claims to secure compliance. This analysis provides the context for later chapters.
In the second section, the chapters consider alternative approaches to enforcement, canvassing mechanisms such as alternative dispute resolution (ADR), inspections by agencies and inspectorates, procurement and supply chains, corporate social responsibility (CSR) and ‘reflexive’ legal mechanisms. Dickens considers how ADR is currently utilised as a means of reducing demand on ETs, arguing that it has the potential to make a broader contribution to this area by promoting systemic change in organisations. Bob Hepple traces the history of specialist equality commissions in the UK, examining the changing regulatory approach of the commissions over time. Hepple argues that the commission's current reliance on responsive or reflexive regulation (i.e. regulation tailored to specific regulatory contexts, often integrating legal mechanisms with self-regulation) is beset by a number of problems, including declining resources and staffing, exposure to changes in government policy, lack of a duty on employers to engage with representatives (including trade unions), and lack of a positive duty on private sector employers to advance equality. Despite these limitations, Hepple argues that reflexive regulation ‘in the longer term holds the key to more effective enforcement of workplace equality’ (p. 64) though achieving this end is likely to require a ‘long and difficult struggle’ (p. 65). Similarly, Steve Tombs and David Whyte's chapter examines the challenges in agency enforcement of health and safety law, particularly given the government's ‘better regulation’ agenda. The authors argue that CSR is an inadequate mechanism for achieving compliance with health and safety law and, echoing the concerns in Hepple's chapter, posit that inadequate resourcing and the government's ‘antagonistic, neo-liberal, business friendly “reform”‘ (p. 82) has significantly undermined the Health and Safety Executive's ability to secure the enforcement of employment rights. McCrudden considers how public procurement could be used to secure employment rights in the private sector, arguing that procurement is an under-utilised mechanism in this context. The author argues that public procurement is most likely to be effective as an enforcement mechanism if supported by a legal equality duty and high-level political commitment and leadership to assist with overcoming ‘political logjams’. Simon Deakin, Colm McLaughlin and Dominic Chai examine the use of reflexive legal mechanisms to address gender inequality, particularly in relation to the gender pay gap. Drawing on their own empirical findings, the authors argue that equality law currently fails to provide an adequate legal framework for reflexive mechanisms to operate effectively in the area of equal pay, particularly given the lack of a general requirement to conduct and disclose mandatory pay audits and the potential for individual litigation to undermine collective self-regulation.
While the majority of these chapters consider mechanisms within a specific legal context (for example, the use of agencies to enforce equality and health and safety law; reflexive legal mechanisms in the context of gender pay audits), the findings of each chapter are potentially relevant to the enforcement of employment rights more broadly, providing useful lessons on the potential gains and pitfalls of each mechanism. In particular, these chapters demonstrate the crucial importance of a strong legal framework, adequate funding and government support for any system of reflexive regulation.
Third, several chapters consider the organisational context in which employment rights are implemented, with analysis of the impact of organisational size, management style and trade unions on enforcement and compliance with legal rights. Paul Edwards examines employment practices in small firms, arguing that small firms are not generally ‘bad employers’. In noting the diversity of management approaches in small firms, Edwards argues that employment rights could be better promoted in ‘problem cases’ through a range of mechanisms including supply chains, membership of business associations and workplace inspections. John Purcell supplements this analysis by considering how business strategy, management style, line management and human resource management in medium and large workplaces can influence the implementation of employment rights. He argues that workplaces that rely on high-performing staff are more likely to adopt good employment practices in a bid to become employers of choice. Further, effective complaint mechanisms and quality line management within firms are essential for upholding workplace rights. Finally, Trevor Colling considers the changing role and influence of trade unions, arguing that employment rights could be made more effective by ‘revitalis[ing] and reinstat[ing] their diffusion through representative structures’ (p. 185).
Dickens concludes the collection with an assessment of how proactive approaches to enforcement might be used to help make employment rights effective, with particular emphasis on agency enforcement, reinstating the role of trade unions, and the use of procurement to encourage organisations to adopt better practices.
The book's key contribution lies in its interdisciplinary approach, which effectively illustrates the complexity and challenges of improving the enforcement of employment rights. The chapters clearly demonstrate that there is no ‘magic bullet’ to resolving these issues (p. 224): indeed, most alternative approaches are as beset by limitations as reliance on ETs. Further, as Tombs and Whyte's chapter demonstrates, even the best enforcement mechanism can be undermined by a lack of funding and contrary political objectives. What is clear from the various contributions is that no reform should be considered in isolation – organisational context, the involvement of non-state actors, and government policy all interrelate to determine the ultimate degree of enforcement and compliance.
The key challenge encountered by many chapters in this volume relates to the lack of existing evidence regarding how these alternative approaches actually work in practice. As a result, it is difficult to draw any firm conclusions regarding whether the mechanisms would be of benefit as alternative means of securing compliance for employment rights. For example, in Dickens's chapter on ADR, she notes that ‘[evaluation] of the operation of the arbitration alternative [to ETs] is hampered by the fact it has hardly been used, with only 64 cases in a decade’ (p. 34). Encountering a similar challenge, McCrudden looks to the experience of Northern Ireland to assess how public procurement may be used to encourage compliance.
In this context, the chapter by Deakin, McLaughlin and Chai is particularly notable, as it provides new empirical research to evaluate alternative mechanisms of enforcement. The chapter draws on the results of an empirical study of twenty organisations to examine organisational experiences of pay audits and equal pay litigation and analysis of the WERS 2004 dataset to examine the impact of socially responsible investment funds on employer practice. The chapter by Edwards also draws on the WERS dataset to examine variations between small firms across different sectors.
In some ways, the book raises more questions than it answers: it is only in the concluding chapter by Dickens that there is any real examination of how alternative mechanisms could help the enforcement of employment rights more broadly. Further, there is limited consideration of how this reform could be achieved in practice or, indeed, whether reform is even possible in the current political climate. As Dickens notes: ‘there has been reluctance on the part of governments of all political shades to address the issue of rights enforcement strategically, and to embrace reform suggestions likely to enhance delivery of fairer workplaces’ (p. 207). Indeed, recent reforms have appeared to undermine enforcement, rather than enhance it, as demonstrated by the chapters by Hepple and Tombs and Whyte. As a result, the book is best viewed as the first stage of a dialogue around how employment rights should be enforced. It provides a solid examination of existing mechanisms of enforcement and compliance, and provides some examination of alternative mechanisms to the extent they are already being deployed in the UK. It is a worthy read for all those involved or interested in employment law and its implementation in organisations.
