There is a middleground where employers and legislators could jettison their polarised views on employment legislation and strike a balance between enforcement and encouragement, says Duncan Brown

How are you placed on the legislation outlawing religious discrimination? Had any equal pay questionnaires from disgruntled employees? And like most retailers, I’m sure you have had loads of flexible working requests under the 2003 Employment Act.
This Labour government passed more employment legislation in its first three years than was enacted under all four preceding Conservative administrations. To smooth the flow, the Department of Trade and Industry has adopted two dates, April 6 and October 1, for new domestic employment regulations. Patricia Hewitt, the secretary of state, just announced that no further executive pay legislation would be forthcoming. But watch out for regulations on dispute resolution, disability discrimination, amendments to TUPE - the transfer of undertakings (protection of employment) regulations - and equal pay rules, industrial tribunal reforms, pensions legislation and regulations on age discrimination, information and consultation. Got all that?
No wonder there’s a row over regulation. Small shopkeepers, the CBI and Institute of Directors rail against this tide of red tape that’s increasing costs (by £12bn according to the latter) and damaging competitiveness.
The TUC, meanwhile, paints a Dickensian picture of unscrupulous employers overworking their stressed-out employees (stress costs industry £13bn according to a recent EU study), denying them basic rights of association and fair treatment. No alternative but legislative compulsion.
Both camps argue in terms of national competitiveness. So, although the land-of-the-free US is 25% more productive than the UK, highly regulated Switzerland, Denmark and Norway have some of the world’s most productive employees.
So what’s the answer? At the extremes, both sides are right. Model employers, like Asda, Tesco and those in the just-released Sunday Times 100 Best Companies to Work For listing, realise financial gains from a committed workforce and excellent HR management. Asda’s generous benefits, ranging from legal help to discounted bicycles, Oscar-recognition awards, grandparent and Benidorm leave, aren’t done for charity.
Asda recognises the business return, such as the labour supply benefits of employing older workers, without requiring the forthcoming ageism legislation to force it.
At the other extreme firms struggle to survive, badly treating their employees, e-mailing redundancies and under-paying women. Read Polly Toynbee’s Hard Work if you want reassurance that your current employer isn’t that bad. Some 30,000 employees a year in the UK still suffer a fatal or major injury at work, with a 40% increase in workplace accidents.
A key issue for the legislative approach is how you force the latter companies to comply without inconveniencing the former. It’s a balance this government hasn’t always got right, as with its initial proposals on data protection. Badly drafted laws and poor guidance have created unnecessary hassle for 74% of small employers, according to a recent CIPD study. There’s good and bad legislation, as well as employers.
But inconveniencing the delivery of business
and HR strategies doesn’t mean legislation is road-blocking them. Our survey of 1,200 HR executives found three times as many majoring on the delivery of key business goals through people as on legislative compliance.
Surely there is a sensible middle ground, where employers accept clearly defined minimum standards but with maximum flexibility to craft a positive employment relationship that is good for their performance and their people. The CIPD’s study of the flexible working regulations, A Parent’s Right to Ask, found that 90% of employers had no problems complying. Over two-thirds had, like Marks and Spencer, applied the right to all employees, not just parents of the under-5s. We concluded: “The new right is overwhelmingly positive, giving no support to cynics who argued it would be ineffectual, or critics who feared it would be costly. It has struck the right balance between encouragement and enforcement.”
With a more even-handed consideration of the issues by businesses, and better understanding of workplace realities by legislators, it is a balance the UK should be well placed to achieve.
n Duncan Brown is assistant director general, Chartered Institute of Personnel and Development