What links an Uber driver, a casual farm labourer and a supply teacher. Nothing on the surface, but if Labour’s proposals to Make Work Pay go ahead as planned they’ll all get a raft of new employment rights and the blurry distinctions between contractors, workers and employees will be no more. Alongside new rights there will be a new enforcement body to prosecute and fine companies that breach employment law. This body – called the Fair Work Agency will likely merge three main agencies:
- Gangmasters and Labour Abuse Authority
- the National Minimum Wage enforcement unit in HMRC
- the Employment Agency Standards Inspectorate.
For months now the new Government has been saying the new agency will have ‘teeth’ to issue fines when employers breach employment issues like failing to pay holiday pay or not paying the entitled minimum wage. Citizens Advice estimate 365,000 people were paid less than the minimum wage last year, and 1.8 million didn’t receive the holiday pay they were entitled to.
The Fair Work Agency’s task will be to improve the enforcement of these workers’ rights for the simple reason that a right that isn’t enforced isn’t really a right at all. At Protect, we see that whistleblowing might fit within the Fair Work Agency remit, and we have two key recommendations, as outlined below.
Give the Fair Work Agency power to enforce against whistleblowing breaches
Today’s whistleblowing law is dependent on individuals bringing a tribunal claim to seek justice. It means the whistleblower must stand up twice – first to raise the concern, then to prove they were harmed by the whistleblowing. But those with National Minimum Wage claims or discrimination issues can, in some circumstances, see action taken against their employer without the need for an individual claim – for example, the Equality and Human Rights Commission can investigate companies who breach equality law. There’s a real opportunity here for the Fair Work Agency to receive reports about whistleblowing failures and have an enforcement role.
This would mean they would need to:
a) set the standards for a good whistleblowing process; and
b) investigate where those standards are breached either because no one has listened to the whistleblower, or the whistleblower reports that they’ve been victimised in the process.
If this sounds fanciful, it’s a model already used in the NHS in Scotland where the Independent National Whistleblowing Officer has established principles and reports on breaches. It doesn’t replace the tribunal process, but it adds an additional route to address employer breaches.
Make the Fair Work Agency a Prescribed Person Under Whistleblowing Law
Whether or not the Fair Work Agency takes on enforcement of whistleblowing, they should become a “Prescribed Person” as individuals will be providing them with a vital stream of intelligence. A report by the Low Pay Commission found that HMRC’s enforcement work is both proactive (working with employers) and reactive (responding to complaints coming in). They found that “measured by the ratio of cases where [national minimum wage] arrears are found, complaint-driven cases have a better likelihood of success than targeted ones” – individual reporting should therefore be encouraged.
But, as we know at Protect, reporting to a regulator comes with further risks. Those regulators and professional bodies that have the status of “Prescribed Persons” provide whistleblowers with an easier path to legal protection, if they faced any victimisation for speaking up. Being Prescribed would also provide transparency as the Fair Work Agency would be expected to publish data every year on the number of whistleblowers who had approached them with concerns. This means the Agency could be held to account more easily for its performance and impact.