Strengths and weaknesses of the UK Employment Rights Bill

Jeff Slee analyses the Government’s new legislation and outlines how the trade union movement should respond.

The Labour Government published its Employment Rights Bill on Thursday 10th October, within the 100 days they had promised. But many of the areas it covers are for consultation with unions, bosses and others, and will take the next two years to come into force.

Alongside the Bill, the Government published a briefing document Next steps to make work pay, which says what the Government is doing more widely on workers’ rights

The Bill and other government measures are to implement the commitments agreed between the Labour front bench and affiliated unions in May.

Some provisions of the Bill only apply to England, with the other UK nations making their own laws.

Trade unions have generally given the Bill a cautious welcome, but said that there is a lot still to play for as the Bill goes through Parliament, with some measures dependent on amendments the Government will bring forward during the parliamentary process. And much will also depend on the many consultations with unions, bosses and others, that the Government will hold. The Government says that it will take several years for all of the measures they have promised to be brought in, and many will only become definite depending on the outcomes of consultations and reviews.

Reservations have been expressed by Sharon Graham, Unite General Secretary, and Daniel Kebede, National Education Union General Secretary. Sharon Graham said: “The Bill still ties itself up in knots trying to avoid what was promised. Failure to end fire and rehire and zero-hours contracts once and for all will leave more holes than Swiss cheese that hostile employers will use. The Bill also fails to give workers the sort of meaningful rights to access a union for pay bargaining that would put more money in their pockets and, in turn, would aid growth.”

Daniel Kebede said: “It is disappointing, however, that the statutory reasons for refusing requests for flexible working have been retained.”

Here is my view of the Bill. I’m not a lawyer, and there is such a lot in the Bill and accompanying documents that I can’t cover it all.

Trade Union Rights

The Bill does not repeal the Trade Union Act 2016 in full, which Labour promised in May. But, as Keith Ewing and Lord John Hendy KC wrote, it does remove those parts of the 2016 Act which made it more difficult for unions to take industrial action – such as the thresholds of 50% turnout and 40% voting Yes in industrial action ballots, and unions having to appoint picket supervisors for picket lines.

The Bill also includes repeal of the Tories’ Strikes (Minimum Service Levels) Act 2023. So, unions are now back to the pre-2016 industrial action position. In the Government’s briefing, there is a promise to look further at “modernising” trade union laws. Which might be good news. Or might not. The restrictions placed on trade unions by Thatcher’s anti-union laws of the 1980s all remain in place.

The Bill will make it easier for unions to get recognition (the legal right to collective bargaining with an employer). They will need only a simple majority in a ballot of workers to get this; the requirement for 40% of workers having to vote for recognition as well as getting a majority will be scrapped. Employers now sometimes use this threshold to prevent recognition, by taking on more workers on short-term contracts just before a recognition ballot. There will still be methods that some employers will use to frustrate unions getting recognition, and the Government has merely committed to “seek views on how to strengthen provisions to prevent unfair practices during the trade union recognition process.”

The Bill also gives unions a new right of access to workplaces to speak to workers. But this will not be straightforward. Unions will have to apply to the employers and reach an agreement on access with them. If the employer won’t reach an agreement, unions can then refer the matter to the Central Arbitration Committee (CAC), a Government body which arbitrates between unions and employers on industrial relations matters, who will make a ruling. There will certainly be plenty of work for anti-union lawyers in advising employers on how to frustrate this right of access.

In May, Labour committed to giving unions the right to use electronic (online) balloting instead of postal balloting in industrial action ballots and union elections. This is now delayed, but hopefully not for too long. It will be referred to “a working group with stakeholders”, with full rollout implemented following Royal Assent of the Employment Rights Bill. There is no need for a long delay on this. Trade union postal ballots under the anti-union laws are often run by Electoral Reform Ballot Services, which is now part of a software company called Civica. Civica already run electronic balloting for unions on matters that do not come under the anti-union laws, and they are all set to run electronic balloting for statutory ballots once the law allows this.

The promise of secure workplace balloting, made in the New Deal in May, is nowhere in the Government legislation or accompanying documents.

The Bill does include welcome improvements on facility time and resources that employers must give workplace union reps, and extends these to union equality reps.

Workers’ Rights from Day One

This part of the Bill makes welcome improvements to workers’ rights – but not all of them straightaway. Workers will get the right to protection against unfair dismissal, by appeal to an Employment Tribunal, from day one, instead of after two years as now. But this reform will not come into effect any sooner than Autumn 2026. Until then, the current two-year qualifying period will continue to apply. This two-year wait is disappointing and unnecessary. I fear the Government has given way to bosses’ pressure on this.

The Government says this delay is to give time for consultation on how long probation periods should last, on probation procedures, and “to allow employers to prepare and adapt”. But there should be no reason – certainly for larger and established companies – why drawing up a procedure for probationary periods that will satisfy Employment Tribunals should be hard or time-consuming. ACAS could probably come up with a template probationary procedure in just a couple of days. And if there is to be a delay for consultation and preparing, a reduction of the qualifying period to the one year that applied under the last Labour government could be done quickly in the Bill.

It is welcome that the Bill will make paternity and parental leave a right from day one of employment. Workers will also be entitled to Statutory Sick Pay from day one. And there will be a new right to bereavement leave. The government will also start a more general review of parental and carer’s leave.

Family-Friendly Policies

More improvements are that large employers will be required to produce action plans on how to address their gender pay gaps and on how they will support employees through the menopause. The Government will also strengthen protections for pregnant workers, making it unlawful to dismiss them within six months of their return to work except for in specific circumstances. And there are new measures to prevent sexual harassment in the workplace.

Flexible Working

The right to flexible working will, the Bill says, become the default position. However, this may not in practice make it any easier for those workers who need flexible working for reasons such as childcare or other family care responsibilities. Because, as the Government says in its explanatory notes to the Bill, “an employer may only refuse a flexible working request if it considers that a specified ground or grounds applies and if it is reasonable to refuse the request on that ground or those grounds. The specified grounds remain the same as the current legislation.” (my italics)

Zero-hours contracts and Fire and Re-hire

The Bill bans what the government calls “exploitative” zero-hours contracts, by making employers offer workers guaranteed hours based on the “reference hours” that they have already actually been working. Some in the trade union movement, especially Sharon Graham, are sceptical of how far the Bill as proposed will actually put an end to bosses exploiting workers through zero-hour contracts.

The Bill makes “fire and re-hire” automatically an Unfair Dismissal, under the meaning of employment legislation. But there is a get-out for employers: fire and re-hire won’t necessarily be unfair if they can show that they did this because of financial difficulties which, at the time of the dismissal, were affecting the employer’s ability to carry on the business as a going concern.

Sectoral Collective Bargaining

Unions have long wanted to bring back sectoral collective bargaining, which was common in many industries until the 1980s. Sectoral collective bargaining is where unions and employers, across a whole sector of employment, collectively agree on minimum pay rates, conditions and standards for every company in the sector. The benefit to workers is that companies can’t then compete for business by undercutting others to do the job more cheaply, which encourages a “race to the bottom”. Without sectoral collective bargaining, bosses will often tell their workers and unions: “We’d like to offer higher pay and better conditions, but if we did, we would lose contracts and business to other companies who pay less.”

The Employment Rights Bill takes two steps towards bringing back sectoral collective bargaining. First, it sets up an Adult Social Care Negotiating Body which will set pay, terms and conditions for social care workers across this sector. Second, it re-establishes the School Support Staff Negotiating Body, which will set pay, terms and conditions of employment, training and career progression for school support staff.

Nicola Countouris, Keith Ewing and John Hendy have written fully on sectoral collective bargaining for the Institute of Employment Rights The Long Slow Death of Labour’s Plans for Sectoral Collective Bargaining? – IER.

Conclusion

In my view, the tasks facing the trade union movement following publication of the Bill and associated documents are as follows.

Firstly, to prepare to use the new rights that workers and unions will get to build unions’ membership and organisation in workplaces, and to improve workers’ pay and conditions – and to get into the many workplaces and companies where unions now don’t exist.

Secondly, to push – together with pro-union MPs and others – for improvements to the Bill through amendments as the Bill goes through Parliament.

Third, to prepare their input into the many consultations and reviews that the Government will hold, as it turns the vague promises in the Bill into the detail of laws, regulations, and codes of practice. In doing this, it will help if the TUC can get its constituent unions working together to press for policies in line with TUC policy as decided by its Annual Congresses.

LA REVUE GAUCHE - Left Comment

Friday, October 18, 2024

Strengths and weaknesses of the UK Employment Rights Bill

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