Research
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Books: Research
Following the examination of the legal context of employment disputes in Nicole Busby’s chapter, I explore in this chapter two key questions: how do people think about the law in relation to problems at work, or disputes with their employers, and how do advisers transform or augment these notions into action or inaction in relation to employment disputes?
In the context of the proliferation of individual employment rights and changes to the nature of workplace organisation and occupational structure, Citizens Advice Bureaux are increasingly becoming providers of employment advice – to the extent that they have been described as a new actor in employment relations, partly filling the void left by the decline of trade unions (Abbott, 1998). Bureaux offer information and advice regarding employment law, and assistance in enforcing the law via the employment tribunal system.
As described in Adam Sales’s chapter, clients bring with them varying degrees of prior understanding and expectations which advisers seek to either validate and elaborate upon, modify or transform. Clients’ notions of their employment rights are not always accurate, and as well as assisting in furthering disputes, advisers may sometimes also close them down. In the context of recent changes to employment law, such as the weakening of unfair dismissal protection and the imposition of fees for tribunals, advisers are increasingly the bearers of bad news to their clients regarding available legal options. I consider in this chapter the sometimes divergent perspectives of clients and advisers regarding justice and legal remedies, and how advisers seek to manage expectations.
Laura worked for a retail company for six years before she was suspended over an alleged incident which she denied, providing evidence to support her innocence. However, when she learned that there was a fee to be paid for submitting a claim, and for holding a hearing, this was a ‘gamble’ she felt unable to take. Laura worked in a large supermarket chain for more than six years. A store security guard filmed Laura on CCTV going to her car during her break. He claimed she was taking illegal drugs. Laura states that she was taking a hay fever remedy. After returning to work from being in her car, Laura was approached by a manager and informed that she was suspended. She asked the reason for this and was told it was due to the incident that happened earlier in the evening. At the time, Laura did not know what incident was being referred to. The next day she received a letter from her employer informing her that she had been suspended because she was working under the influence of illegal drugs. Laura vehemently denied she had been taking illegal drugs. She contacted her employer and offered to have a drug test taken immediately, as it was still within the appropriate time period that would make this valid. The employer declined her offer. Laura then had her own test taken, which showed that she had not been under the influence of illegal drugs. Laura had a disciplinary meeting.
Lucy was 25 years old and 13 weeks pregnant when she first became homeless following the non-payment of wages from a previous employer. Lucy actively sought advice and information about her housing rights and options from 11 different sources. Within this process, Lucy encountered a number of barriers which significantly impacted on the speed and ease with which she was able to access targeted advice.
In 2014 Lucy moved from Scotland to the South of England to take up a new employment position. Upon arrival she was informed by her previous employer that they had decided not to release her holiday pay. Lucy depended on this money to put down a deposit on a new flat and as a result was left homeless and in a particularly vulnerable position:
‘I was pregnant, I had my suitcase, all of my belongings, I’d been carrying it around for three days now. I also have a heart condition, so I was prone to fainting, which is rubbish.’ Lucy initially approached the local authority at the main Customer Service Point (CSP) where she waited two and a half hours for an appointment. Since she lacked a connection to the local area, Lucy was turned away without an opportunity to speak to a housing options adviser. Staff at the CSP appeared unconcerned, unsympathetic and unwilling to provide even basic information:
‘I didn’t ask for anything, I asked for advice, even just a list of services …
Since the 1990s, many Citizens Advice Bureaux have run advice sessions based in GP surgeries, in recognition of the links between poverty, poor health and the need for advice. Research has shown that such services are effective in improving benefits uptake and may also contribute to psychological health. In this chapter I broaden this focus by exploring how advice impacts on issues of powerlessness which have been shown to be central to the experience of poverty and social exclusion. I draw upon qualitative interviews which were carried out with 12 Citizens Advice clients who attended a GP-based advice service in 2012; clients were drawn from two bureaux, one based in a rural area in Wales and one in an urban area in the South West. I argue that the ‘powerlessness’ observed among clients as they sought to negotiate the benefits system does not imply that they are passive victims in this process, but rather individuals whose ability to take action is constrained by a lack of resources and power. I further explore the key role played by the Citizens Advice service in addressing these critical imbalances.
Eleven of the clients who were interviewed had long-term health problems and one was a full-time carer for his wife. All had sought advice about welfare benefits, with the majority seeking advice about disability and/or sickness benefit claims. At the time of the research, an increasing number of Citizens Advice clients were seeking advice about Employment and Support Allowance (ESA), which had replaced Incapacity Benefit and Income Support for people unable to work because of long-term health problems or disability.
The Citizens Advice service expanded in the post-war period in the UK, and reflected economic, political and social settlements of the time, not least those between capital, labour and government about the conditions of employment. Since the late 1970s, those settlements have been dissolved; the power balance between labour and capital has tilted dramatically in favour of employers, and work has become more contingent and precarious. Employment is increasingly characterised by non-standard, flexible, temporary and insecure working arrangements. This process of casualisation, which Bourdieu (2010: 151) calls ‘flexploitation’, involves ‘insecurity inducing strategies’ which exploit the growing vulnerability of workers and those looking for work, forcing them into more intense competition with each other, and therefore acceptance of their own subordination. Workers are not prepared or able, individually or collectively, to challenge their employer and their working conditions, so uncertain are they about their future job prospects.
A variety of legal and social protections have been withdrawn in the name of freeing markets and enterprise from unnecessary constraints – these protections included welfare benefits, employment law, trades union rights and forms of legal redress (as described by Nicole Busby in Chapter Four). The period of ‘austerity’ has seen the further erosion of social and legal protections and a deepening of precarity, representing the loss of a ‘bargain of trust or security’ between worker, employer and state (Standing, 2011: 8). The increasing deregulation of the labour market and its contracts, the loss and individualisation of workers’ rights, and the shrinking of collective protection provided by unions are leading more workers to come to the Citizens Advice service to deal with their employment problems and to find possible lines of redress.
Anyone who works in the advice sector, and perhaps those in the wider public as well, know that the demand for advice outstrips supply. We know that scantly resourced services struggle to meet demand, and that economic ‘austerity’ has delivered a double blow to those seeking advice, stripping away much-needed services whilst also adding to the problems of the advice seekers, afflicted with poverty, worklessness, debt and homelessness. Most of us also realise that the pressure on our services, the constant squeeze of ‘more for less’ reducing funding pots and increasing targets has a knock-on effect on the clients, one that is not simply a case of them having to wait longer to be seen. Our day-to-day focus, however, tends to be on what it’s like for us: the service struggling to make ends meet. And whilst we would claim to understand the wider economic plight of our clients, and will speak with authority and empathy about their lives ‒ what it’s like to live on benefits, lose your job, struggle with ill health ‒ rarely do we stop to consider practically what it might be like to be a client accessing one of these overstretched under-resourced services. We ask for feedback in a mechanistic ‘how was it for you’ sort of a way, but it’s rare for us to look in detail at how our services work for a specific set of circumstances relating to an individual.
Constructive dismissal claims are amongst the most difficult types of cases to take to an Employment Tribunal. Such cases require high levels of knowledge; employment advisers will often argue amongst themselves about constructive dismissal cases. A substantial difficulty with any employment case is being able to secure supporting evidence. It is very rare in ET cases that someone walks in with comprehensive and complete evidence; and how do you get witnesses, people who are willing to stand up and testify against their own employer?
Constructive dismissal cases are also extremely painful for the claimant. We often find people folding at an early stage because of the stress of taking a case. On the Citizens Advice information system there are big red warning triangles to emphasise the difficulties inherent in advancing a constructive dismissal case. Firstly, the claimant needs to understand what the term ‘constructive dismissal’ actually means. To successfully argue that s/he has been constructively dismissed, a claimant will have to show a fundamental breach of one of the ‘express’ or ‘implied’ terms in the contract. To effectively proceed, Brian would have needed to understand the written terms of his contract of employment. These would form the basis of the ‘express’ terms of his contract. (Whilst there was an obligation on Brian’s employer to provide a written statement of the main terms and conditions of his employment, we cannot tell from the case study if he ever received these.)
Laura’s decision not to take her case to tribunal would be a fairly familiar story even before the introduction of tribunal fees. A largescale survey conducted in the late 1990s found that 16% of workers with legal problems related to employment did nothing about them, higher than the corresponding percentages for justiciable problems relating to family, consumer or housing matters; the reasons for no action included that the workers thought nothing could be done about it, because they were scared, or owing to the cost, time and trouble involved (Genn, 1999: 43‒4). These difficulties remain and are exacerbated by other factors: workers who are not union members have limited practical access to legal advice and legal costs are prohibitive; the legal cards are often stacked against claimants; tribunals have a very limited role in assisting claimants who represent themselves, and those without representation are significantly disadvantaged; tribunal awards have always small and difficult to enforce. If those were not sufficient obstacles already, fees add another barrier. In theory dismissals for conduct outside working hours, such as Laura’s, give rise to interesting questions about how the law on unfair dismissal applies to conduct outside working time, including in light of Article 8 of the European Convention on Human Rights. The reality for a worker in her position is rather more mundane. An employment tribunal would not investigate whether she actually committed the act of misconduct for the purpose of unfair dismissal, and would simply direct itself to consider whether the decision to dismiss was one which a reasonable employer might take based on the evidence before it.
Second unsupervised inteMy diary of participating in the Citizens Advice training programme is littered with these experiences. Notes on Debt Relief Order procedure are followed by my own worries about forgotten credit cards or the Council Tax Bill – debt in the abstract intertwining with debt as personal anxiety. We are used to thinking of debt as a question of morality (I am frequently reminded by friends that both Swedish and German hold the same word for ‘debt’ as for ‘guilt’), or of time: debt as the purchasing of today’s consumption with tomorrow’s labour. It is unusual to think of debt as a legal question. Yet it is through debt that many people will become enmeshed within the reaches of law, whether being forced to engage with the power of a contract or to question the nature of ownership. What defines different debts, as opposed to debt generally, are the legal framings that shape, among other things, how, when and by whom they can be enforced and collected.
I will explore here what debt advice tells us about how ‘law’ and ‘life’ are intertwined in the practice of advice. This intertwining, I argue, has important implications for the ongoing role of advice in the context of an assumption, presented in a Ministry of Justice paper that preceded the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), that volunteer advisers merely provide the public with ‘practical’ information (MoJ, 2010). I will focus on the question raised by this assumption: is there a difference between the advice they give and formal ‘legal advice’, and does this difference matter?
From our interviews and diaries of the Citizens Advice training programme, trainees noted that, compared to the perils of negotiating the labyrinthine intricacies of the UK benefits system, debt advice appears reasonably straightforward.
