Employment Expert Backs CBI’s Calls For Flexibility

'Clear Need' For UK Law To Be Updated

25.07.2011

An employment law expert at Irwin Mitchell has backed a call for greater flexibility in relation to employment law following the issue today of a new report from the CBI.

Commented after the release of the Thinking Positive: The 21st Century Employment Relationship, Tom Flanagan, a Partner and Head of Employment at the national law firm, suggested that more flexible guidance could be vital in helping legislation to evolve - but that there would probably also have to be change in legislation to create the necessary flexibility.

Tom Flanagan said: “The CBI Report suggests the need for more flexibility in the workplace, through practice or guidance notes, rather than new law, because we have a sufficiently strong body of law already.

“Flexibility is key but lawmaking itself in the UK is not very flexible. The summary of the CBI Report envisages ‘constraints’ being ‘removed’. Ironically, this would require a lot of legislation, either to remove or amend existing legislation or to legislate for the effect of court decisions.”

Tom explained that employment law in the UK currently consists of a combination of statutes, regulations and also common law which have come about in the aftermath of activities in the courts.

In addition, European directives require member states to pass law to implement the directives. Tom added that a failure to do so, or passing new laws which reduce the scope of the directive, would be in breach of community obligations and leave the UK open to ‘infraction’ proceedings by the Commission for failure to implement Directives properly.

He continued: “Employment law in the UK clearly needs updating - in numerous areas such as collective redundancy, information and consultation, discrimination, TUPE and industrial action ballots.

“Because of the nature of lawmaking, such changes would involve a combination of primary legislation (statutes), secondary legislation (regulations) and practice/guidance notes. Those type of notes may well be helpful but they do not have the force of law and, by themselves, could not overrule existing, contradictory law.

“A review, therefore, could, perhaps, focus on the more immediate issues which would allow greater flexibility, work out which methods are necessary to achieve them and work with the key relevant stakeholders to make changes as quickly as possible."