Beware the Employment Law Apocalypse – Employment Law Advocates

In 1507, a human sacrifice took place on top of an extinct volcano in Mexico. For the Aztec ruler Moctezuma II, more commonly known as Montezuma, this was a necessary killing. It was the end of the sun’s 52-year cycle. If it was not replenished with human blood, he feared that the sun would fail to rise again, and the world would be plunged into terminal darkness.

Economic cycles provoke similar anxieties. We are told that sacrifices have to be made. But the rhetoric behind these assertions often stands up to little more scrutiny than the mythology of the Aztecs. Last month, the Labour Party announced its intention to increase paid paternity leave from two weeks to four weeks. It was a genuinely modest proposal but business leaders reacted as though they were being asked to sell their children for food. The British Chamber of Commerce described it as a “tax on business”, despite plans for the government to foot the bill. It warned that two extra weeks of absence would result in fewer firms seeing the dawn.

These worries betray a strange lack of confidence, as though commercial enterprises are not enterprising enough to adapt to the tiniest change. Some male critics, such as Toby Young in the Spectator, seem to regard paternity leave as a threat to their fragile masculinity. When the coalition government gave women the choice to share maternity leave with their partners, he saw only a slippery slope, predicting a campaign to force men to take paternity leave against their will. His nightmare vision of the future was inspired by an obscure political party that receives just 2.5% of the vote in Sweden. But for the easily-emasculated Young, the prospect of a women’s party sharing power is a dystopia which fills him with horror. He truly regards feminists as ball-breakers and doubts the robustness of his own balls to survive the onslaught.

For the Daily Mail, as terrifying as the rise of feminism is the dreaded obesity epidemic. In December, a decision from the European Court of Justice was bloated out of all proportion. A lightweight report from the news wires that “obesity can be a disability” was padded out into a story that “Obesity IS a disability”. There was alarm about a gluttony of claims, demanding wider furniture and more parking spaces. This was wildly exaggerated. There is disagreement among lawyers as to what the fallout of the judgment will be, but it is disagreement between those who think that its effect will be slight and those who think that it will have no effect at all. They do agree about whether there is a significant risk for employers. The chance is slim.

As with most employment law changes, whether real or imagined, unease was expressed for small businesses. There is an assumption that companies of all sizes share the same interests but, like the little kid who tries to be friends with the school bully, this is a dangerous game to play. The main threat to small businesses is big business – fifty firms a day closed during the financial crisis caused by banking excess – but less powerful enemies are sought instead. It is easier to blame fat people rather than fat cats. It is as if the economy is a diner at a restaurant, indulging itself to the point of exploding with overconsumption, and the Equality Act is seen as the wafer thin mint which will finally cause it to self-destruct, showering the neighbouring tables with the contents of its digestive system. That really would be Montezuma’s revenge.

And now for something completely different: holiday pay. It is a drier subject perhaps, dry like the pestilential desert wasteland of a post-apocalyptic planet. Because, yes, this too is a danger to civilisation as we know it. In November, the Employment Appeal Tribunal made a ruling that annual leave payments had been wrongly calculated, in that they did not include overtime. The EAT carefully limited the scope of backdated claims but this was not enough for the business lobby, who angrily called for a government task force be set up. Vince Cable was happy to oblige, taking a break from promoting growth to deal with a non-existent peril.

A “concerned citizen” once asked Leicester City Council how it would deal with an attack by zombies. The council was forced to admit that it had no specific strategy and Cable would not make the same mistake. Unnecessary legislation was passed, to restrict the period for which holiday pay could be requested. If the undead hordes were to wake from their eternal slumber – and claim for thousands of years of underpaid annual leave – the nation would be prepared.

But this plutocratic superstition is not only an innocent waste of government time and money. Its victims also include ordinary people: low paid workers, pregnant women and others who have been harassed or discriminated against. The builder of their sacrificial altar was Adrian Beecroft, a wonkish equivalent of Nostradamus, who makes policy based not on insight but on vague and ambiguous allusions to what “Employers regularly say”, and for whom “Who knows?” amounts to a detailed impact assessment. Beecroft supported a recommendation that fees be introduced to access the Employment Tribunal – this has led to a 70% drop in claims without eliminating the weak ones – in the hope that the sun never sets on British capitalism.