The document discusses flaws with the current UK employment enforcement system which relies too heavily on individual employees bringing claims themselves through employment tribunals. This approach provides only limited workplace change and a narrow view of compliance among employers. A more effective system would utilize proactive employer compliance addressing structural issues, agency inspections, and partnerships with non-state actors like unions to strengthen enforcement. The current system does not realize the potential for more substantive protection of workers' rights.

1. Warwick Business School
Professor Linda Dickens
IRRU University of Warwick

2. Warwick Business School
What is the problem?
Recent reforms based on analysis of problem as
 too many disputes going to employment
tribunals (ease of application, meritless claims)
which are costly
 employers over-burdened by employment
rights; hampering flexibility and growth in the
economy (de-regulation perspective)

3. Warwick Business School
another perspective
 Growth of legal rights but continuing experience
of unfairness and limited substantive protection
at the workplace
 existing rights enforcement mechanisms
inadequate for engendering compliance with
employment standards/promoting fairer
workplace
 Problems with ETs but not just a flawed system -
the enforcement approach is flawed

4. Warwick Business School
Enforcement landscape
Historical accident, political convenience, ad hoc responses.
Fragmented and piecemeal. ETs centre stage
No strategic review/reluctance to engage
Need logic of enforcement designed to
 ensure and assist compliance with statutory standards
 give substantive effect to formal rights
 reduce likelihood of adverse treatment, promote fairer
workplaces
ET system not delivering on this

5. Warwick Business School
ET - Flawed approach
 Preconditions for successful complainant-led
‘self-help’ enforcement often missing
(awareness of rights; knowledge of breach and
how to enforce; preparedness and ability to act)
 ET cases provide a weak lever for workplace
change (missed opportunities)
 Counterproductive for employers
 Approach engenders narrow notion of
compliance

6. Warwick Business School
Current nature of compliance
 Extent of compliance required by legislation is
limited (thou shall not…)
 Emphasis on compliance with legislative rules
rather than giving substantive effect to formal
rights and preventing unfair treatment
 Compliance with letter rather than spirit (e.g.
procedure/policy gap). Insulate from liability
without addressing problem
 Reactive and individualised compliance rather than
pro-active and structural

7. Warwick Business School
Reactive or proactive compliance
individualised or structural
 Generally - passive/reactive employer
compliance. Action only when challenged by
‘victim’, rather than taking pro-active steps to
achieve specified objectives
 Outcomes - individualised adjustments/
compensation for individual loss rather than
redress, adaptation, adjustment for categories
and/or changes to organisational policy, practice
or structures

8. Warwick Business School
A pro-active/ structural approach
Agency inspection, advice and enforcement
Potential advantages given certain conditions -
resources, powers, sanctions, will to act – (often
lacking in practice)
 tackle unfairness without individual complaint
 educative role, assist voluntary action/self-reg.
 non adversarial
 public interest
 engage other stakeholders

9. Warwick Business School
Responsive regulation
Formal legal devices integrated with self
regulation. Requires:
 Strong incentives to encourage internal
organisational scrutiny and action
 Mechanisms for effective
deliberation/participatory decision making
 External independent body to inform, advise,
educate, persuade and finally enforce (with
deterrent sanctions) if voluntary methods fail

10. Warwick Business School
Role for non-state actors
Opportunity to achieve stronger compliance and
enhance enforcement capacity of the state through
‘co-regulation’ with
 Unions
 Civil society organisations (potential but under-
developed, lack workplace presence)
 Employers
Also allows sensitivity to varied contexts and
differing orientations

11. Warwick Business School
Unions/representative bodies
 CB as social regulation;
 translate formal rights to substantive change;
 Workplace institutions help embed, monitor and
enforce legal standards;
 ‘bridging’ institutions between legal system and
workplace
 Issues of capacity etc. but ability, knowledge and
expertise of unions could be harnessed to
supplement regulatory capacity of state. Requires
support for workplace representation currently
absent from public policy.

12. Warwick Business School
Employers
Procurement and power in supply chains
 Use market power to drive substantive
outcomes
 Help overcome enforcement challenges from
changes in organisation of work
 Help target use of scarce enforcement resources
 From ‘part of the problem’ to part of the
solution

13. Warwick Business School
Summary
 ‘self help’ enforcement - only limited ability to effect
workplace change. Narrow concept of compliance
 Passive/reactive compliance less effective in delivering fairer
workplaces than pro-active employer compliance, addressing
structural and organizational issues, not just individual.
 Too much weight placed on individuals having to assert rights;
too little weight placed on developing effective agency
monitoring, inspection and enforcement
 value of employee-based representative mechanisms as
‘bridging institutions’ not recognised in policy,
 opportunities to complement and strengthen the regulatory
capacity of the state by forging partnerships with non-state
actors in enforcement and co-regulation are not being taken.

14. Warwick Business School
References/Further Reading
 Linda Dickens ‘Fairer Workplaces: making
Employment Rights Effective’ in Linda Dickens
(ed) Making Employment Rights Effective: Issues
of Enforcement and Compliance (Hart, Oxford,
2012)