Tackling Taylor: “Good Work” deserves defence

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I’m dismayed at the early critique of the Taylor review. The headlines and analysis do our professions no credit. This is a report promoting “good work” and good work to me deserves defence. Read here what and why. At the end please note you’ll also find your speed-read of the substantive points.

What’s the story?

Long-awaited, much anticipated, and not even late on delivery, this review of modern employment practices led by Matthew Taylor is big, bold and I think it manages to be rather beautiful.

You may not have time to read the primary source, but I wanted to. The risk is that a broad scope is funnelled into the single story that best hits headlines. Zero hours contracts and the exploitation of gig workers make for good press. As the Taylor review falls short of ban, we unfortunately deem it falls short full stop.

For the Labour party the review “doesn’t go far enough” and, as Theresa May admits she needs support from other parties to implement, the press uses a powerful employment and social punch to highlight all-party chaos. This is about politics.

For the TUC it’s “not the game-changer needed” and the CWU go for “woefully inadequate”. Are we surprised to find the trade unions less than ardent fans of a voice on modern models that the traditional trade union relationship is as yet not in a position to support?

For lawyers the review reads as variously feeble or by converse too complicated, proving there is no win in looking at legislative review. And a cagey press needs no addition to emotive adjectives abounding on Taylor.

The CIPD to the rescue

There is hope in an avenue where admittedly I rarely turn to for the future of our HR profession and namely the CIPD’s ardent support for “Good Work”, as propounded by Taylor. How can we not support a concept like this?

“Good Work” is close in concept to the Danish and EU model of “flexicurity”. Good work focuses on quality and not quantity. The authors position their recommendations towards achieving:

  • Fairness, protection, and support for those vulnerable in UK society
  • Clarity, information and education for all
  • The opportunity for productivity, wage growth and tech advancement

To address, Taylor reaches into the gig economy (this the part that hits the headlines!), but also the hidden (cash) economy, agency and zero hours work, the self-employed – and tackles the government on learning strategy, tax systems and authority power structure.

Good Work protects the individual

Whilst vulnerability is a focus point, Taylor is keen to stress that whilst we read a lot about the injustices and exploitations, there is an individual perspective.

Let’s link this to our understanding of today’s consumerist employment market and the digital opportunities. Most in atypical work patterns, whether agency, zero hours or gig, operate their work in that way from choice.

The stats included on diversity serve less to show up discrimination but more to stress these individual life choices. Which we should support. And the review does support choice.

Hence I’m glad that Labour doesn’t get zero hours banned. Oh and thank goodness rolled-up holiday looks set to be officially back. We all know it’s been operating as the holiday underworld so thank goodness that organisations can come out on that one.

On gig growth, the headlines focus on growth and size of the market. But the key point, effective in emphasis throughout some 110 pages, is to protect a small minority who are the most vulnerable.

The British Way of the future

A second concern is of course to protect the future:

The “British Way” of works is coined to convey the benefits of our flexible employment models, noting our agility and lightness of regulation. In general the review suggests this has well-supported both employees and employers.

But there is a conundrum about just where the balance of state intervention therefore lies to support the tripartite labour market community (individual, state/community and business). This triangle, the “golden” one of flexicurity, is needed to cope and care in modern employment models.

A chapter about the benefits system calls for much more on sick pay (to be managed by accrual like holiday), as does a call for lifelong learning help – these implying a pretty firm responsibility upon our government to prop us up in life.

Chapter 6 about this British flexibility is subtitled “Unravelling the Gordian knot” (this means solving a really difficult problem in one, decisive blow). This may rather over-egg quite how much recommendations would achieve, but there are clues.

To solve the problem, a greater remit is offered to the Low Pay Commission, to whom the really tricky question of where to pitch a new (higher) NMW for non-guaranteed hours is shifted. [More below on the key practical points.]

What state Employment Status?

Legal and HR professionals have been waiting for the verdict on employment status. The headline recommendation is that the term “worker” should be replaced by that of a “dependent contractor”.

This is to be written in statute, allowing for amend by secondary legislation. The acknowledgement of the need for update is a decent answer to how to avoid reliance on case law without something that’s good today being outdated by next year’s Uber example.

Taylor is saying that status is what is called a “difficult” question of law rather than a “hard” one. This means that it’s the clarity of the law that is tricky, rather than that the law is clear but the applicability looks dodgy on the facts. The implication? Happily that outcomes need not be unfair.

Defining dependency for a worker should focus on the degree of control from amongst those tests we’ve developed through all the case-work, rather than personal service. Again, making sense.

In practical terms, recommendations include an online tool to work out your status and for work to be recorded in piece rates with published correlation to expected hours. [Again more below]

Admittedly it’s hard to find the legal mechanism of rights to request, but the argument is a little shot in the foot as Taylor encourages that legislation best “works with the grain of business practice”, but reveals how little difference flex working requests have made (before the guidance was issued 35% of workers used flexible working).

There would, by the way, need to be even more compliance reports as a result (Think: Gender Pay Gap reporting and then some). Government accountability in metrics is also called for.

Tax Tackled

Motivations about fairness allow Taylor and his colleagues the excuse to devote a whole chapter to tax, which is not part of the formal remit. The 2-tier structure of HMRC’s approach (self-employed or employed) should remain and is compatible with three tiers of employment law.

This helps to avoid the confusion that contractor status under IR35 is the same issue as exploitation of gig workers. When inevitably it’s those of us who are HR leaders, lawyers, journalists, consultants live in a world where this is closer, I’ve recently felt this to be a danger-zone in clouding good thinking (see p.75 median self-employed earnings to put things in perspective).

NI differentials between the employed and self-employed should be reduced (what a shame about that budget!) and yet at the same time the entitlements available to those who are self-employed uplifted towards parity. In other words, those self-employed should pay more NI to get what NI is designed to buy.

Digitally-driven society drivers

As a professional seeking to work between HR and technology colleagues, I’m really interested in the commentary on technology and digitalisation:

Digital economies are of course the drivers of the requisite change and now digital solutions have to be the enablers. “Workertech” comes in many forms. The review points to online tools, to digital badging of lifelong learning, to portable benefits platforms and to advancements in potential for cashless transactions at work.

This is set in the HMRC digital context of Making Tax Digital initiative.

AI and the development of tech will enhance society only if it is human-centric in design, working around existing behaviour patterns. This is obvious but it’s worth underlining.

It strikes me that there is a wide-open welcome to tech partners to help the authorities and agencies accelerate the advancement in employment practice - this has rarely been the case before.

What to take away from Taylor?

As you try to form your own conclusions about the review, I draw your attention to key points:

  1. Tie many of the specific recommendations into the aim of making the ever-increasing in-ing and out-ing of one employment or type of employment status easier and with greater protection.
  2. Secondly, keep your reference to those recommendations aligned with the focus on that of Good Work – on work quality. I was delighted by a concluding chapter where the issue of UK productivity is returned to. Authors call for government efforts to drive productivity (i.e. work quantity) to be tempered with greater concern for quality work.

In reading the full report, I become aware of the sheer number of authorities, bodies and businesses involved in potential change. And I think, “Gosh”. But I don’t agree with those who are negative about the whole thing.

Hard though the knots are, how can HR read the Taylor comment and fail to support researched, reasoned and reasonable human aims?

A Top 20 Taylor Tips

I’ve taken the highlighter pen to the review document and drawn out a 20-point “need-to-know”. Remember that these are recommendations.

Employment status

  1. Employment statuses to be distinct – and defined by statute with secondary legislation; “Worker” status to be replaced by “dependent contractor”, with control rather than personal service the key determinant
  2. Free online tool to determine status of employment - as available for tax, but there remaining a 2-tier for tax status alongside 3 at employment law, with closer alignment
  3. Clarify how to interpret NMW law for interns, but no need for a new intern status for distinct protection mechanism

Protections

  1. Zero hours not to be banned in their entirety, but protected by a Low Pay Commission (LPC)-quantified, higher NMW rate for hours not guaranteed in contract
  2. To manage gaps for zero/variable hours workers, the break in continuous service to trigger after 1 month rather than (current) 1 week and pay reference periods to be extended for variable hours workers to 52 weeks so that seasonal patterns are better protected
  3. New rights after 12 months for variable-hours workers to request fixed hours; and for agency workers to request direct engagement by an employer
  4. 'Right to return' recommended after period of prolonged ill health, subject to engaging with Fit for Work service

Pay, tax & benefits

  1. Piece rates legislation to be adapted to provide at least NMW for gig contractors – with 20% margin for error in calculating output-based work
  2. HMRC to enforce all core rights – adding holiday pay to SSP and NMW (as current) – with SSP also aligned with holiday pay in the treatment of accrual and rolled-up holiday allowed back
  3. The self-employed should receive the same state benefits as the employed, particularly parental leave: but the % rates of NI contribution should be brought closer

Career development

  1. Broadening apprenticeships, calling the Institute of Apprenticeships to provide better answers to encourage use of apprenticeships in atypical and agency work – including reporting on disparities in take-up; levy funding also available for high-quality training options other than apprenticeships
  2. Use the Lifelong Learning Fund as a start to a new-style of lifelong learning account, supported by work towards creating life-time digital individual learning records – gig platforms to use “digital badges” for transferrable skills

Partnerships

  1. Regional and sector approaches – LPC to ensure specific codes of practice for quality work, regional partnerships to improve health and wellbeing at work
  2. Active work to be done by government with “Catalyst” partners to develop WorkerTech tools to support emerging work models - addressing particularly ease of cashless transaction, pension modelling and benefits portability
  3. Accredit digital platforms meeting government aims in supporting the self-employed, plus call for JobCentre Plus to point specifically to career options as self-employed

Accountability

  1. Information and Consultation Regulations (ICE) 2005 to be revisited, with the trigger threshold lowered from 10% to 2% of workforce
  2. Important work for the new directorship of Labour Market Enforcement to consider protections for agency workers, extending remit of Employment Agency Standards Inspectorate (EAS) and removing the ability for agency workers to opt out of Agency Workers Directive
  3. Tribunal fees toughened for employers: employment status to be determined without fee, a change in the burden of proof on status to the employer, direct enforcement action against employers who don’t pay tribunal awards, with a naming and shaming scheme, and more use of aggravated breach penalties
  4. Public accountability for larger companies to publish information about: model of employment, use of agencies, requests received for fixed hours and for direct relationships
  5. Government to be accountable to annual set of metrics (baseline 2018) about quality of work

About Kate Wadia

Kate Wadia - Phase 3 Consulting

Kate is the Director of Insights at Phase 3 Consulting, independent specialists in people technology in the UK. Her passion at work is for bridging the gap between technology and people at work, translating for HR professionals the language of HR systems and making meaningful their potential. She believes that success with people technology is through people and that people are the differentiator.

Using simple techniques drawn from HR experience, project management, business psychology and analogy with everyday life, Kate presents and explains how to work well with technology and technology projects in an HR leadership role.

With a background in contrasting private and public sector HR management, Kate developed her thinking in seeking for herself to understand her first HR systems project-work. She led Phase 3 as Managing Director before choosing to focus on offering ‘Insights’, through writing and speaking engagements, talent development in HR tech and the continuing development of new industry ideas.

Kate’s guiding principle is that openness offers knowledge-sharing, credibility and trust, best delivered with incorrigible enthusiasm.

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