Most opinion polls predict that the Labour Party will win the next general election, which will probably take place in autumn 2024, the main question being whether they win an outright majority or, if they are unable to, form a coalition government, possibly with the Liberal Democrats.
Until recently, there has been little indication of what a Labour government would actually do, including their policy on employment law, if they were to form a majority government. Now, their deputy leader, Angela Raynor, has outlined Labour’s intentions. She has been given responsibility within Labour for the workers’ rights agenda. In a speech to the Trades Union Congress (TUC) on 12 September, she gave a ‘cast iron commitment’ that Labour would introduce an Employment Rights Bill within its first 100 days of government. Here, we take a look at what she said it would contain.
First, the politics
We must take Raynor’s audience into account. She was addressing the TUC conference, an annual gathering of the country’s trade unions. The Labour party was formed by trade unions and receives funding from them so it was important for Labour, at possibly the last but one TUC conference before the election, to give trade unions some policy commitments they would welcome.
Labour is calling its flagship policy ‘New Deal for Working People’, which Raynor said ‘will transform ordinary working people’s lives. Work will finally pay, rights will be properly enforced, and crucially it will strengthen the role of trade unions in our society.’
So what specifically will they do for trade unions?
Raynor promised to strengthen their position, in five ways:-
- First, Labour would relax the extra curbs on striking introduced by the Conservative government. This will be done by repealing the Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023. The 2016 Act imposed new restrictions on trade unions as to how and when they could take industrial action. These included a requirement that industrial action ballots must attract a 50% turnout in order for their results to be legally valid, and that workers whose role mostly concerns the delivery of ‘important’ public services have to reach a 40% support threshold among all workers eligible to vote. The 2023 Act is designed to force trade unions to provide a minimum service during a strike in key public services.
- Labour would give unions a new legal ‘reasonable right to access to workplaces’, which would make it easier for them to recruit and represent worker's rights across the economy.
- They would also allow electronic workplace balloting, for example for industrial action. At present ballots are postal and there is often a low participation rate, something the Conservatives addressed with their Trade Union Act 2016. Electronic workplace balloting is presumably Labour’s way of increasing participation levels in ballots over strikes or statutory union recognition so that results are more representative of the views of their members overall. The Conservatives dislike workplace ballots because they think that they would be more likely to result in positive votes in favour of strikes or recognition.
- Labour would ‘simplify the statutory recognition process to ensure that ‘gig economy’ and remote workers can meaningfully organise through trade unions.’ We have seen greater union attempts at organisation in the gig economy in recent years in companies like Uber and Deliveroo: Labour is signalling its intention to help that along but there was no detail on this.
- Finally, they want to ‘boost collective bargaining, both at a firm level and sectorally’ but, again, there was no detail on how Labour would do this. Collective bargaining at the level of the individual business requires first that a union is ‘recognised’, so possibly this is simply a reference to strengthening union rights to compulsory recognition. ‘Sectoral’ collective bargaining in the UK is really something that applies in the public sector only, where unions negotiate with bodies representing, say, health or education services nationwide.
What about individual employment rights?
Here too, there are changes planned. Raynor claimed that these would be ‘the biggest upgrade in workers’ rights in a generation’.
Is this claim credible?
Labour, Raynor said, would do the following:
- Introduce a ‘proper living wage that people can actually live on’. Strip away the rhetoric, this really means a higher-than-inflation increase to the current rate (£10.42 an hour). How much will depend on the economic conditions at the time. The National Living Wage was introduced by the Conservatives for those aged 23 and over and is higher than the National Minimum Wage, first introduced by Labour in 1999. Obviously, Labour was not going to commit to fixing a rate and the words ‘proper living wage’ leaves room for different interpretations.
- Extend statutory sick pay to lower-paid workers. In reality, this will not affect many but it has been generally regarded as an anomaly that the very low-paid were excluded from the already modest statutory scheme.
- The law against ‘blacklisting’ union workers will be strengthened, including the outlawing of the use of predictive technologies for blacklisting.
Further rather vague announcements were made. Labour would ‘go faster and quicker to end the gender pay gap’ with no detail of how they would actually achieve this and, in perhaps the most unrealistic promise of all, ‘tackle sexual harassment at work’. They would also ‘put mental health on a par with physical health’ but it is unclear what this means: sick leave for whatever cause attracts sick pay and an impairment can be mental as well as physical when it comes to disability discrimination.
These don't look that radical. Was there anything else?
Yes, Raynor promised ‘day one basic rights’ which would have sounded good to her audience but was left undefined. There are already many ‘day one’ rights, such as the right not to suffer discrimination. However, when unions refer to ‘day one rights’ they usually mean ordinary unfair dismissal rights, for which there is currently a two-year qualifying period. ‘Day one rights’ was a trade union demand before the last Labour government gained power in 1997 but Labour merely reduced the qualifying period for making a claim from two years to one year. The two-year period is likely to be reduced again but it would be surprising if Labour allows full unfair dismissal rights from the very start of employment: business interests will lobby heavily against it.
But virtually unreported in the press were two proposed changes that we think are really quite far-reaching if they are actually implemented. These are:-
- The abolition of zero-hours contracts.
- A prohibition on ‘fire and re-hire’.
No-one knows how exactly they would do this but, if these two policies are implemented, they could signal real change for many firms. An abolition of, or severe restriction on, zero-hours contracts will mean that many employers would have far less flexibility in their variable working arrangements.
Prohibited ‘fire and re-hire’ would mean that employers could no longer force through contractual changes by terminating contracts and re-engaging staff on amended terms, which is the only way of doing so ultimately. It is always a dismissal of course and, for those with over two years of service, allows an employee to make a claim for unfair dismissal. However, a ‘fire and re-hire’ can currently be done fairly as long as there is a business reason, due consultation and so on. Removing this ability altogether would represent a further significant shift by Labour in the balance of interests towards workers and away from employers.
How 3CS can help
Our team of employment lawyers and consultants have both domestic and international expertise and offer a full range of employment and HR legal services. For further help and information on trade unions, employee rights or any employment law matter please get in touch with your usual 3CS contact.
