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Please suspend your disbelief for a moment and join me on a thought experiment…

Just after a UK General Election at some point in the future, the new Government announces that it is going to come down hard on employment law, cutting all the red tape that inhibits companies from hiring, firing and managing workers as they see fit. We’ve heard this message before of course, but this time they actually mean it.

After a whirlwind consultation period, the Government manages to pass an Act which replaces all UK employment legislation and all prior case law with only one prescribed workplace rule:

“Be excellent to each other”.

It’s known as the “Bill & Ted” principle and there are no structures in place to monitor excellence: there is no statutory definition of “excellent” and ACAS aren’t going to be asked to write a code of practice any time soon as the same Act has abolished it…

I imagine HR practitioners gasping across the land as they realise the implications. No more TUPE – static or dynamic. No redundancy consultations. No Equality Act, protected characteristics or reasonable adjustments. No settlement agreements, “some other substantial reasons” or constructive dismissals. Just an open and frank relationship between individuals and their employer who could effectively say and do what they liked to each other.

OK, now you’ve just splurted out your tea, haven’t you? Sorry, I’ll wait while you clear it up. Hope you didn’t have any important papers on your desk.

You’re probably thinking “No employment law? I could get so much more done and with a much smaller HR team!” or even just “No employment law? That would be awesome.”

Would it though? Could organisations and people just be excellent to each other if there wasn’t employment law to get in the way?

I’d love to think they could but I have to say that whilst employment legislation is far from perfect, the anarchy of no rules does not seem to me to be an appealing alternative. We know already that there are many, many employers who ignore the fundamental basics of employment law, never mind the good practice stuff. For every “Top Employer to Work For” company, we hear numerous tales of bullying, harassment, discrimination and generally employers who ride roughshod over employee rights and get away with it. In the way that I’d hate to be a doctor at a dinner party as I presume everyone tells you about their health issues, I tend to find when I get introduced as working in HR, people either roll their eyes or want to dive straight into war stories about what happened to them or a relative in a previous company… (Actually recent graduates I’ve spoken to have tended to ask “what’s HR” but that’s a whole other blog)

So call me cynical but with no employment law, I imagine a world of work where by and large the majority of staff are hired and fired with little or no reason. Apart from perhaps a few enlightened organisations, in most companies there’s no loyalty, not even a vague attempt to engage staff, just simply “Bellum omnium contra omnes” or “the war of all against all”. Philosophy students (and ex-philosophy students, like me) will recognise this quote from Thomas Hobbes’ social thought experiment in “Leviathan” – he calls it the state of nature or the pre-societal “natural condition of mankind”. Hobbes famously argued that life in this natural state would be “solitary, poor, nasty, brutish and short” – and that seems an apt description for what this working life might be like. You thought zero-hour contracts were bad; try no contracts and no rights at all!

I wouldn’t claim to have undertaken exhaustive research into this next point – but I did go beyond Wikipedia for once, so maybe I should… Guess when the first UK employment law was passed. Go on, what do you think?

Well, it seems generally agreed that the first piece of proper employment law came about in 1349 when King Edward III issued The Ordinance of Labourers 1349. I don’t know about you, but that’s a lot earlier than I would have guessed. The law was in response to the outbreak of the Plague and was intended to freeze wages at pre-plague levels. Given an estimated 30% – 40% of the English population died, labour was at the time in great demand. There was then a whole raft of laws which followed, prohibiting things, regulating things and limiting things. You can imagine. Life in the early 1400s was a veritable employment law-fest (a more cynical person than me might draw parallels to the last 30 years!).

Looking back through time, there have been historical ups and downs in employment law terms, to say the least: governments which swung the pendulum towards the worker and those which swung it away again.  There were Guilds, Trade Unions, Tolpuddle Martyrs, the Master and Servant Act 1867, Bryant & May match girls, Whitley Councils, the Donovan Report, the National Minimum Wage… you get the picture. Rather like society developing out of the state of nature, the complex inter-relationships of what we now know as UK employment law (or “#UKemplaw” if you are a Twitter user) developed over time and in a somewhat haphazard (and often politically motivated at the time) manner.

As HR professionals, in my experience we spend a disproportionate amount of our time worrying about employment law. Yes, it’s complex. Yes we need to have a good awareness of the key issues and some of the bear traps that undoubtedly exist. Yes it can have significant implications if you lose an Employment Tribunal, not least in financial and PR terms. But employment law isn’t there to stop us being excellent to each other – we can do that as well as broadly comply with the ins and outs of the law of the land. In fact, my experience is that if we are truly excellent to each other, there is generally little need to be too worried about a Tribunal claim…

After such a contemplative blog I’ll leave you with two more things to ponder:

Would your organisation be excellent to everyone in an employment law state of nature?

And would they still value the work you and your team do without the “stick”?