Lessons from Research in the Voluntary Sector TUC Commission on Vulnerable Employment Anna Pollert, Andy Danford, Stephanie Tailby, Nick Wilton and Stella Warren

CABx and Law Centre Adviser Survey Research conducted in : CABx and LC front line advisers experiences of supporting employees with problems at work. Vulnerable Workers: non-unionised. Questionnaire survey: 56 out of 124 CABx with advisers; 32 out of 53 LCs with advisers. Telephone interviews: 34 CABx; 10 LC.

CABx and Law Centre Adviser Survey Advice infrastructure (eg, nos. advisers; employment rights expertise; financial supports). Types of workers & problems (eg, employee status; more common employment problems and frequency). Clients seeking employment advice and union membership. Advisers experience of ET applications and resolution. Policy context (and main areas of reform).

Advice Infrastructure Only a third of UKs 433 CABx had an employment specialist. Sampling frame of 124 CABx with employment specialists, almost two-thirds had no paid employment specialists; volunteers worked an average of 8 hrs/week; nearly half of CABx had only one volunteer. LCs, mostly paid general advisers and specialists. Two-thirds of LC adviser backgrounds were as solicitors/barristers; CABx advisors were more likely to be other professionals, HR, TU).

Lack of Resources Over three-quarters of LCs had experienced real term cuts in funding from the LSC and local councils over past 3 years. Two-thirds of CABx had experienced real terms cuts in LSC funding and 55% real term cuts in local govt funding. Problems with Legal Services Commission (LSC). Over 80% of all CABx and LCs reported increases in time spent in fund-seeking. 70% CABx and 80% of LC felt they had too few/far too few employment advisers; well over half of both felt they had insufficient expertise to deal with legally represented employers. Two-thirds of all advisers had too little/far too little legal experience to assist migrant workers. Three-quarters of CABx and over 60% of LC had too few/far too few language resources to support migrant workers with limited Eng language skills.

Interview Examples: The Legal Services Contract …[LSC] are expecting us to do much more for the money. We used to be paid by the hour, so you do the work; you get paid for the work youve done…Now what they do is they say well well give you £225 for each case you open. So you have to be opening a significant number of cases less than £225 to balance out most of them which are above £225…I am afraid that quality is going to suffer because of what the Legal Services Commission is doing and not only that, it will allow organisations into the sector, or encourage organisations into the sector that are good at doing volume, but not complexity. (LC Adviser, North East) Prior to [the new LSC] we had been able to give everyone half an hour free advice. That was hugely helpful for vulnerable workers. Half an hour doesnt sound like much, but one of the biggest issues we have with vulnerable workers is theyre hard to reach and language barriers are even more (of a problem). Its much easier for someone to pop in or phone for half an hour of advice than it is to go through a lot of form filling procedures and that was a very good way of at least giving people very basic ideas about what they were entitled to…Thats now been taken away from us and we are seeking alternative funding, but there does seem to be a move in the Government away from preventative work. (LC Adviser, Inner London) We are screaming anyway with the ones that do qualify [for Legal Aid] because of the amount of demand. We open our doors at 10.00am but at 9.15am there is a queue around the corner, and we can only take about six people per session, you know six people in the morning and six in the afternoon. (LC Adviser, London)

Types of Worker and Problems Two key trends: 1) Predominance of vulnerable permanent workers 2) New salience of workers without employee status. 62%of CABx and 81% of LCs saw agency workers frequently/very frequently. Agency workers are a major problem, it is currently the easiest way for employers to avoid their Employment Law responsibilities, and its becoming almost the main way now, because so many other things have been tightened up, so I think agency working is becoming more and more popular for that reason. Informal workers not on the books: I have seen a remarkable change in ten or eleven years in the deterioration of basic entry level employment rights, Im seeing far more people who arent on the books now. When I came here, it was relatively unusual to see somebody who wasnt getting Tax and National Insurance, there was the odd dodgy one, there was the odd one where the employer had actually been pocketed for not sending it to the Revenue, now its very common indeed.

Most Common Problem Areas Dismissal (notice; non-procedure; 12 months service) 79% weekly or more (19% daily) Pay (illegal deductions; non-payment of hrs worked; holiday and sick pay) 67% weekly or more (16% daily) Working time/contractual rights (paid holiday; sick leave; written contract) 60% weekly or more (9% daily) Maternity/Paternity rights (dismissal for pregnancy; return to work) 71% every week - every month Discrimination & bullying (pregnancy; sex; disability; race; bullying) 65% every week - every month Health & safety problems43% at least every month Unfair treatment: migrant status30% at least every month Other (eg, TU rights, TUPE)75% at least every month

Interview Examples Dismissed in first 12 months: We have Bluewater, the shopping complex, that has sucked in a huge number of people from the local area and what we find there is that people might be doing six months and then they are fired, or …theres no really good reason, but its done in such a way that they then have no rights to enforce. Avoiding redundancy pay:…this morning I had a client in who has worked very happily for her employer for six months and now suddenly in the last three or four weeks, one of the two partners has started to scream at her and rant and rave and abuse her and she cant understand why and it now turns out that the company is facing economic downturn. Obviously they dont want to have to pay her to leave; they want her to leave…. Non-payment of hours worked: They go to work for some cleaning company or something like that, they have a complicated rota and they just dont get paid, or the employer pays them a bit but not everything. The employer then gets rid of them, theyre £400-£500 to the bad…and the employee has a great deal of trouble getting the money, and the employer works out, I think, that they might get taken to the Tribunal occasionally but theyll make more than they lose. Illegal/excessive pay deductions:. We had one Polish girl came in and brought her wage slip and she actually earned top line £200 and by the time theyd taken off accommodation costs, transport to work costs, administration costs, she took home £20.

Attributes of employers and workers associated with 3 main problem areas: Dismissal/Pay/Working Time Most common in small businesses (especially micro- businesses <10) 3 main problems tended to coincide together in (private) services sector: wholesale & retail; hotels & restaurants; private care-homes; cleaning; security; hairdressing/beauty; also manufacturing. Nearly two-thirds of advisers highlighted prevalence of repeat offenders. Workers most at risk: -White British; Europeans; Black; Asian -Temporary workers -Those on permanent contracts were the most common.

Legal Context 60% of advisers estimated an increase in ET applications for unfair dismissal on procedural grounds since the 2004 Dismissal and Disciplinary and Grievance Procedures came into effect. Many CABx and LCs felt that lack of Legal Aid solicitors prevented clients from pursuing an ET. Majority of advisers indicated that over a half clients settled before ET hearing Minority of clients (<25%) give up before ET hearing (frustration; fear of employer; fear of cost liability). Nearly 30% of advisers reported frequent/very frequent cases of ET awards that are upheld but then not enforced. Similar pattern for County Court cases. Quarter of advisers indicated that following non-enforcement, client frequently gave up.

Policy Changes Reduction in 12 month qualifying period for unfair dismissal. Equal rights for agency workers. ETs to have the power to enforce tribunal awards. Increased govt funding for employment advice and legal aid. Reform of the Legal Services Contract to remove the strictures on eligible clients, type of employment advice and its delivery. More effective TU intervention