Employment Rights Bill latest

Unite has welcomed key elements of the government’s Employment Rights Bill, which will have its second reading today (October 21) but warned that it stops short of “making work pay”, as Labour had promised.

Key Wins

With Unite leading on negotiations with the government over what is included in the Bill, several of Unite’s demands were met, including a repeal of anti-trade union laws brought in by the previous Tory government and its predecessors.

The Bill totally scraps the Strikes (Minimum Service Levels) Act, which required key sectors such as transport and health to maintain minimum service levels, effectively forcing some union members to work during a strike.

The Employment Rights Bill also removes most provisions of the Trade Union Act 2016, which hobbled unions with onerous and bureaucratic requirements designed to prevent strike action. Some of these included ballot thresholds such a 50 per cent turnout on industrial action ballots and an additional 40 per cent threshold on those eligible to vote in important public services for the ballots to be valid. Now, only a simple majority is restored.

Other Trade Union Act provisions that will be scrapped include the two week notice requirement for industrial action ballots; unions having to describe the dispute, type of action and timetable on the ballot paper; and some restrictions on picketing such as having to notify the police, among other provisions.

New Rights

Unite also welcomed a number of new rights, such as statutory rights for equality reps, collective rights to workplace and electronic ballots, improved rights to flexible working, a day-one right to unfair dismissal, extended rights to statutory sick pay, and improvements to statutory trade union recognition, including removing a 40 per cent threshold, among other rights.

But as legal experts, Prof. Keith Ewing and Lord John Hendy KC so forcefully outlined in a comment piece in the Morning Star last week, the Bill’s litany of new rights are in the main individual rights, and falls far short on the collective rights needed to truly improve pay and conditions for workers.

“The central commitment of A New Deal, the rollout of sector-wide collective bargaining in all areas of the economy, has been put on ice except for school support staff in England and adult social care, though paradoxically the Bill is careful to make clear that the outcomes of these processes will not be collective agreements as they are normally understood,” Professor Ewing and Lord Hendy wrote.

“Nevertheless, the procedures for these two sectors are straightforward and it is hard to see why they should not be deployed in respect of other sectors, notably school teachers, agriculture workers (with their particular history of exploitation), gig workers, hospitality and catering, parcel delivery and so on. Indeed, the government could begin by restoring national collective bargaining to its own Civil Service,” they added.

They also highlighted that rights to trade union access are nowhere near strong enough as they need to be, a view Unite has shared.

In the Employment Rights Bill at present, trade union access rights require unions to ask employers for access. If the employer refuses, unions can go to the Central Arbitration Committee (CAC), which can then impose one.

But Unite has highlighted that this process could translate into long delays of months or even years and would be a gift to bad bosses. What’s more, as Prof Ewing and Lord Hendy point out, if an employer refuses to comply with an imposed access arrangement by the CAC, there’s no way to force them to comply.

What’s missing

Beyond the very limited expansion of trade union access rights, Unite is disappointed by the government’s failure to ban both zero hours contracts and fire and rehire as promised. The ‘bans’ put forward in the Bill only restrict both practices, and leave open huge loopholes.

On zero hours contracts, the Bill says employers must offer workers a contract that reflects their normal working hours during a reference period, which is expected to be 12 weeks. Workers have the option to turn down such contracts – in other words, willingly opt out of a minimum hours contract. Unite has highlighted that both the reference period and the option to opt out can be exploited by bad bosses. Employers can simply get rid of workers after the reference period when they have to comply with contracted hours. They can also make it clear to workers that they have to opt out to stay employed.

The so-called ‘ban’ on fire and rehire is also riddled with loopholes. Employers can still ‘fire and rehire’ their workers (or different workers) on worse contracts – as P&O Ferries so controversially did in 2022. While P&O was among the most egregious of examples, countless employers have used this practice, including British Airways, and most recently Oscar Mayer, which Unite members are now fighting with industrial action.

In the Bill, employers can fire and rehire their workers provided they consulted them first and that they can prove they did so because they had no other option to survive financially.

As Prof. Ewing and Lord John Hendy note in their comment piece: “It will be unfair to dismiss an employee for refusing to accept a contractual variation, but only if the employer is unable to persuade a tribunal that the reason for the dismissal was to ‘significantly mitigate’ the effect of any financial difficulties affecting or likely in the immediate future to affect the business.

Provided the employer consults with the employees affected and with a recognised union, it will be home and dry if these conditions are met. As a result, the workers will be left without a remedy for standing on the terms of their contract. This falls well short of expectations…”

Commenting on the Bill, Unite general secretary Sharon Graham said, “This Bill is without doubt a significant step forward for workers but stops short of making work pay.

 “The end to draconian laws like Minimum Service Levels and the introduction of new individual rights, for example on bereavement leave, will be beneficial,” she added. “But the bill still ties itself up in knots trying to avoid what was promised. Failure to end fire a 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 to a union for pay bargaining that would put more money in their pockets and, in turn, would aid growth,” Sharon went on to say. “Unite will continue to make the workers’ voice heard as we push for improvements to the legislation as the Bill goes through parliament.”

Stay tuned on UniteLive for the latest on the Employment Rights Bill.

By Hajera Blagg