A general record of my ongoing battle with all forms of nonsense.

Saturday, 30 October 2010

The Morality of Employment Law

Completely off the normal topic of this blog, but following probably my fifth argument on Twitter over employment law, I figured I’d explain myself in more than 140 characters.

I’ve experienced employment law on both sides of the fence: as employer and as employee. And while I acknowledge that for some people these laws are a benefit, I personally see them as an attack on my freedom. In my experience, the situation seems far worse for the employee than it is for the employer.

So much so, that as an employee in 2000 I spent around £1200 with an accountant to help me waive my employment “rights”. Why, might you ask, would anyone actually pay money to waive their “rights”?

I wanted to waive, amongst other rights:
  • My “right” to 20 days paid leave (it’s 28 now).
  • My “right” to sick pay, and protection of my job while I’m sick.
  • My “right” to a long drawn out disciplinary procedure if my employer no longer wants to employ me.
  • My “right” to paternity leave and pay.
So why did I want to waive these “rights”?

Let’s use an analogy: TV rentals.

A TV rentals salesman is pitching to you. It’s the perfect TV and you love it. But there are some strange terms and conditions.

Firstly, you don’t get your TV all year round. For 28 days, you can’t have it. You can rent another TV for that time, but you have to keep paying for the first one.

Secondly, the TV may break. If it breaks, you get a slight discount on the rental price while it’s being repaired but you do need to keep paying for it. If the TV is broken for a long time, you are able to get out of the contract but only after a long drawn out process.

Thirdly, the contract lasts until the TV is 65 years old. If you think the TV is no longer up to the task and wish to change it – or you just no longer need it, you’ve got to follow a long drawn out process. You need to fully document this process in advance, and stick to it to the letter or the TV company may sue you. If the TV company no longer wishes to continue renting the TV, they can take it away easily.

Fourthly, the TV company might need the TV back for a while to help make another TV. They can decide to do this at any time, but you need to keep renting the TV at full price for the first 6 weeks of this process, and then at a reduced price for up to a year. At a time decided by the TV company, they can bring the TV back and you need to put it back in your home and continue paying full price. You can rent another TV to cover this period, but of course it will be under the same contract terms.

Now it should be fairly obvious that if you are trying to rent a TV under this contract, then you’re not going to get a great deal of money for it. This is a very silly way to rent TVs.

But, I hear you say. This isn’t about TVs, it’s way more important than that: these are people’s lives.

And you’re right. My life is way more important than a TV and if I’m going to sell a significant portion of it, it is critical that I am able to negotiate the best possible terms.

I can save up for my holidays; I don’t need my employer to do this for me. I can put money aside for when I’m sick. I can imagine nothing more demoralising than turning up to work and demanding pay from someone who no longer wishes to employ me. I will only make the decision to have children if I can pay for them myself.

Waiving these “rights” gives me the negotiating power to demand more of what I do want. For me personally that means more holiday time, flexible hours, better pay, great people to work with and interesting & challenging work.

I’m not negotiating a simple contract to rent a TV; I’m selling a significant portion of my life. When the government forces me to sell under these ludicrous terms that personally offer me little benefit, they’re not controlling and devaluing my TV.

They’re controlling and devaluing my life.

Controlling another person’s life when they are causing no harm is immoral. Controlling another person’s life in a way that significantly devalues it is exceptionally immoral. This is the morality of employment law.


26 comments:

Chutzpah84 said...

The solution for people such as yourself is simple - become a freelancer or contractor. You'll trade off enhanced freedom for less job security, but if that works for you then bonus.

For the rest of us, I'm more pessimistic that the majority of people would be able to negotiate significant rights. I'm happy with basic rights for all.

Simon said...

@Chutzpah84

Sadly, it's not that simple.

If you work for a single employer as a freelancer or contractor for too long, you started to become regarded as an employee and the restrictions (or rights as you call them) come into effect.

I don't have any problem whatsoever with standard contract terms that you can opt out of.

Tom said...

If you have standard contract terms you can opt out of, as you suggest, then for a lot of jobs, people will pretty much be forced to opt out of them, or they won't get the job. It already happens with the opt-out for the maximum working week.

Simon said...

@Tom

Of course. Though I wouldn't use the word "force" to describe a situation where someone is merely offering something.

Simon said...

@Tom

Also, I doubt this would happen across the board. Paid holiday isn't particularly expensive for the employer, but offers benefit for employees who are bad at managing money so that would likely remain widely available. The really daft stuff like maternity pay would likely die of course.

Chutzpah84 said...

Hiya Simon,

I'm more than aware of tax and legislation complexity for contractors, as it's a field that I work within.

But then most contractors hate the idea of working in one place anyway - I'm unsure of why you're any different just because you want to save for your own holiday?

(Funnily enough of course, most of the complexity has been introduced to stop employers firing employees on a Friday and rehiring them as contractors on a Monday in order to get around issues such as holiday pay and tax!)

However it's the only solution I can come up with, as the problem with opt outs is that they are easily abused by employers.

For example, the working time directive. I've never heard of anyone signing an opt out for that without some form of lying by the employer.

At one job I worked at we were told "it would be difficult to work" for them without signing it. When my wife worked in security she was told at induction that they had to sign it "by law" and they actually weren't allowed to employ them without them opting out!

I have similar anecdotal stories, but I'm sure you get the point. I wonder if studies have been done into it?

My point is simple - employers will very quickly erode basic rights, and the hardest hit will be the lower paid workers.

Chutzpah84 said...

I've just read your comment about maternity pay being "daft" - it would be interesting for you to expand on that as I'd like to understand your reasoning further.

Simon said...

@Chutzpah84

I can't see how either of these examples could be judged as abuse. I fully support the rights of either the employee or employer to opt out of these regulations. You're assuming that this is "abuse" by the employer, but seeing how both have to agree to it, how can it be?

Both employer and employee benefit. The employer benefits as they don't need to closely monitor working hours to check the employee isn't working too much, and the employee benefits as they gain access to a job they otherwise wouldn't get. It's not abuse, it's mutual agreement.

Simon said...

@Chutzpah84

In terms of maternity pay being "daft": I'm calling it daft because I've never seen it justified, and consider it immoral to issue laws and punishments against people unless you can justify them. To justify enforced maternity pay an employee and employer, you would need to:

1. Show that the responsibility for having a child does not rest with the parents. This would seem the reasonable position, as they are the people that made the decision to bring the child into the world.

2. Justify why the responsibility for paying for having a child rests with the employer of the female parent (and to a lesser extent the male).

If you can't do this, the law is unjustified. It's particularly unjustified as it is so damaging for both commerce in general, and more importantly for women's rights.

I know a couple in their 60s who own a small, run from home business and are now retiring. They can't sell their business to fund their retirement, but are bringing someone in to run it for them.

Their profits are small, and the business is insufficient to support more than one wage. This means if they employ a women who gets pregnant, their business is finished. They've told me that they will not, ever, employ a woman of child bearing age.

Can you blame them? Would you work all your life and then gamble your retirement on the chance that someone won't get pregnant?

What do you expect this terrible law to do to women's wages? It's a severe attack on a women's right to freedom of contract.

pauljinks said...

I've worked as a freelance and self-employed for many years and also as an employee.

While there are many advantages to self-employment, I've never found sick pay and holiday pay to be an infringement of my rights. Many people couldn't afford a break without these and they, their families and their work would suffer.

Am I missing something?

Simon said...

@pauljinks

Yes, you're missing the point that they are forced to accept them by law, in place of other advantages that they might prefer.

As a simple example, many employers would be willing to pay several thousand pounds more or give extra holiday for an employee who opts out of out maternity pay legislation - but employees have no right to do that.

You're assuming that these rights only offer a benefit to the employee and don't take account of the costs.

Claire Lloyd said...

Simon, I really wish you hadn´t made this post. I´ve enjoyed reading your attacks on the nonsense of pseudoscience, but to label the hard-won rights of working people as equally nonsensical is something I just can´t stomach, and I´m going to unsubscribe to this blog right now.

Simon said...

@Claire Lloyd
I don't think I was labelling them as "equally nonsensical".

I was merely pointing out that some people will value these "rights" others won't, or will value them less. To that point, they are less of a right than a preference.

I support everyone's right to negotiate any of these preferences with their employer, I just don't support the government imposing them on us at the expense of other preferences we may have.

I'm also quite willing to change my mind if a valid point is made to show that they aren't preferences and are in fact rights morally as well as legally.

Evans Above said...

http://iwjsta.blogspot.com/2010/11/worst-analogy-ever.html

David said...

There are various areas where the law restricts freedom of contract -- consumer protection being another significant example. The reason behind this, quite simply, is that these are situations where one party (the consumer, the employee) typically has much less bargaining power than the other. An employee generally 'needs' a job more than an employer 'needs' that particular employee. If the employee doesn't agree to the employer's demands, reasonable and unreasonable, then they might as well look elsewhere.

There's also the problem that people find it hard to make decisions under uncertainty, and they often do not make decisions which are most beneficial to them.

So the law provides a 'safety net' whilst preserving a degree of contractual freedom.

There are areas where people can contract out of such protection (e.g. Consumer Credit for high net worth individuals), but this is not always a straightforward option. There is a risk that employers would apply inappropriate pressure to get people to contract out of their basic 'rights' to their disadvantage (without any compensatory benefits), and this risk needs to be managed.

The level of safety net does change over time, and one can always argue about the fine detail. But the principle is sound, morally and legally -- you apply a heuristic to achieve a certain base level of protection to the weaker members of society, even though not everyone may need so much protection (although one's perception of need in this case may often understimate what can go wrong).

Charlene said...

My God you're a privileged upper-class jerk. You're so privileged you don't even recognize it. You're probably convinced you worked for everything you have, when in reality it's been handed to you on a diamond-encrusted platinum platter by a groveling lackey.

People with your attitude are what's wrong with the business world. Privileged, narrow-minded, and oh so disingenuous.

Simon said...

@Charlene,

Finding difficulty addressing the actual points I made then?

Paul5mith said...

Utterly bonkers!!!! Cannot disagree more Simon. Of course, if you have the time and money to spend waiving your employment rights then so be it. However, many people have fought long and hard to get these rights for employees and I fully support and thank them for doing so. Your views on maternity pay and the example where you appear to applaude the stance of a couple in their 60s who would never employ a woman of child bearing age, is quite frankly sexist! There's employment laws against sexism. Do you oppose those as well?

Your campaign against quackery etc... is well thought out and justified. Your position on employment rights is bizarre and absurd. As Claire Lloyd says, I also wish you hadn't made this post.

Simon said...

@Paul5mith I don't applaud them, but I find it very difficult to judge them negatively. It must be difficult to be in the position where not making a sexist decision would risk the retirement you've worked so hard for.

I'm confused as your position, you don't seem to be offering any arguments in response other than calling me sexist and out of date.

I'm not sure how you think I'm sexist - the law clearly makes it a business risk to employ females of child bearing age - do you not agree with this? This risk creates an incentive for some to avoid employing them - do you not agree with this?

I'm quite willing to be convinced by a rational argument. Do you have one?

Paul5mith said...

To be honest Simon I don't think you'd ever be convinced whatever argument was put before you.

"...I'm not sure how you think I'm sexist - the law clearly makes it a business risk to employ females of child bearing age..."

Yes, in most cases it will cost an employer more to employ a woman who goes onto maternity leave rather than someone who doesn't. That's why laws were introduced to make sure that employers don't get away with discriminating against woman of child bearing age. Just because it may be a business risk to employ a woman of child bearing age isn't legal or moral justifcation for not doing so. People have the right to be treated equally in the 21st century. Do you not agree?

Whilst I applaud your campaign against homeopathy etc... I am concerned that you may have gone over to the other side. Do you think your argument is so strong because it's so weak?

I think we'll have to agree to disagree on this one Simon. Have a good day.

Simon said...

@Paul5mith

So you agree that an incentive is provided to an employer. That was my main point.

Also, "People have the right to be treated equally in the 21st century"

I'm in agreement with equal rights certainly, I think we agree here too.

But then you say "That's why laws were introduced to make sure that employers don't get away with discriminating against woman of child bearing age."

That's not true. The law simply incentivises discrimination. The law forbids it - but it's easy to break this law and get away with it. How can you show what someone's decision making factors are?

We seem to agree on all points but this one so far.

Paul5mith said...

Yes, you're quite correct Simon. People (employers) do break the law and some get away with it. It still doesn't mean that it's right for them to do so just because it's difficult to prove that that particular law has been broken and in doing so, the law breaker is financially better off.

We both agree that people should be treated equally. As such, surely a woman who applies for a job with the "...couple in their 60s..." has a right to be treated equally. If the woman is discriminated against and doesn't get the job then she loses out financially rather than the couple. The law should be there to protect the woman. I can't agree that the couple should not be thought of negatively just because they've protected their own interests and broken the law.

Simon said...

@Paul5mith The situation is not ideal for either the woman or the couple.

The couple is in a position where, because of the law, they are punished for employing the woman. This isn't a case of the couple discriminating against the woman, this is the case of the law discriminating against the woman.

Up until the point where the law intervened, the couple would have been indifferent.

I do not judge the couple for breaking the law, because it is an immoral law.

Simon said...

@Paul5mith I should clarify that it's not the equal rights law that I judge immoral, but the law discriminating against women by forcing them to sign up to certain contractual terms when they enter employment.

John Stumbles said...

I think the issue which everyone (except me :-)) is missing is that employment protection laws mandating holiday pay, sick pay, maternity pay, pension schemes etc, discriminate against small businesses (such as the "mom & pop" operation Simon mentions). Larger businesses with hundreds or thousands of employees can (and, arguably, should) afford to cover employee absences (as long as competing businesses have the same liabilities). It's a proportionally larger problem for smaller businesses. I think that's A Bad Thing for various reasons (which I'll spare you).

What we (individually, as a bunch of skeptics, as a country or as humanity in general) can or should do about it is another matter. One option is that if we, as a society, want ourselves and other members of society to enjoy holidays, to be able to deal with illness without the added problems of financial ruin, and have our children not born into poverty, then we as society should collectively make provision for it.

Simon said...

@John Stumbles

Nicely put. If these safety nets are human rights issues, society should pay for them. Society should not have the right to enslave the business owner to force him to provide them.