So what did I miss? 

I was away last week when the House of Lords began the Report Stage for the Employment Rights Bill. Honestly, I turn my back for five minutes and the Government’s whole employment law agenda falls apart!

But not really. A Government with a majority of 146 is not going to let the House of Lords tell it what it can and can’t do in one of its flagship pieces of legislation. But the Lords have certainly made things a bit harder, passing a number of amendments that the Government will need to reject when the Bill returns to the House of Commons. That sets us up for the ‘ping pong’ stage when the Bill goes back to the House of Lords who can either bow to the will of the elected chamber or ‘insist’ on one or more of their amendments and send it back to the Commons. My bet is that having made its point the House of Lords will give way. Ultimately the Bill will pass in the form that the Government wants – though perhaps not as soon as it might have preferred. 

But just for the fun of it, let’s look at the opposition amendments that have been passed over the past week and poke them with a stick. 

A right to request guaranteed hours? 

The problems started early with Clause 1 which introduces the right to be offered guaranteed hours. Amendment 1 inserts the words “if requested by an employee” so that the new provision reads: 

“ if requested by an employee, an employer must make a guaranteed hours offer to a worker in accordance with S.27BB…”  

Now I have always thought that the abuse of zero-hours contracts could best be dealt with through some sort of right to request mechanism. But this amendment is just silly. First of all, notice that the request has to be made by an employee rather than a worker. Many zero-hours workers are not employees so does that exclude them from the right altogether? On the other hand the amendment doesn’t require the request to be made by the individual to whom the offer is made. Perhaps some other employee can request a guaranteed hours offer on behalf of other workers? There are no provisions dealing with when or how the request should be made or any conditions that it needs to fulfil. If the employee makes the request by etching it in weedkiller on the boss’s lawn then – as I read the amended clause – the employer would have to make the appropriate offer. 

The House of Commons will reject this amendment and the Lords will certainly back down. Thy can’t really be serious about this. 

Cancellation of shifts

The Bill gives workers the right to be paid for shifts that are cancelled at short notice. Currently it leaves open the question of how much notice needs to be given for later Regulations following consultation. The Lords has replaced the need for that consultation with a provision requiring 48 hours’ notice. Less that 48 hours’ notice and payment would need to be made, more than 48 hours and the employer is in the clear.

I assume that the Government will reject this amendment. In the debate they indicated that the notice period will not be set at more than seven days and pointed out that under the amendment a worker told on Friday that their shift on Monday had been cancelled would not be entitled to be paid for that. I doubt that this is an issue that the House of Lords would want to take a stand on.

Special Constables

Here’s a random one.  Section 50 of the Employment Rights Act gives employees a right to unpaid time off to perform public duties. It covers things like being a justice of the peace, a tribunal member or a local councillor. The Lords have inserted a provision giving the same right to special constables. Special constables are volunteer police officers who generally commit some of their spare time to police work. Under this measure they would also be able to commit some of their work time as well – although with no right to be paid for that it seems like a lot to ask of even the most public spirited citizen.   

It is hard for anyone to have a principled objection to this new right and the Government did not dismiss the question – announcing instead that they were undertaking a review of which public duties should attract a right to time off. I would expect this amendment to be rejected unless the Government wanted to show willing and accept a least one amendment for the look of the thing. In that case, this amendment would be the best candidate. 

Qualifying for Unfair Dismissal

So this is the big one. The Employment Rights Bill abolishes the qualifying period for unfair dismissal. Or at least, it did. It now introduces a six month qualifying period (although the amendment also provides that there should be no qualifying period if the dismissal is based on a spent conviction under the Rehabilitation of Offenders Act 1974).  I know lots of employment lawyers (myself included) have expressed concerns about the abolition of the qualifying period – and particularly the Government’s rather opaque plan for a ‘light touch’ test of reasonableness during an ‘initial period of employment’. I have even seen some commentators speculating that this amendment might actually stick. 

I don’t think so. 

First of all, the amendment is not as straightforward as it appears. It provides for a six month qualifying period at the end of which the Government’s planned ‘initial period of employment’ will begin. So it is envisaged that the Government will go ahead with Regulations covering a probationary period, but probation will not begin until the employee has six months service. That doesn’t make much sense to me. 

But more fundamentally, unfair dismissal as a day one right is a clear manifesto commitment. There is no wriggle room here. Labour didn’t promise to reduce the qualifying period, it promised to abolish it. Whatever you might think the strengths of a six-month qualifying period are, the Deputy Prime Minister, Angela Rayner, has a personal commitment to the ‘New Deal’ project of which day-one rights are a key part. Can you imagine that she would allow Lord Sharpe of Epsom and Lord Hunt of Wirral to tell her that she can’t deliver on that? Can you imagine the row that would follow if she conceded? It just isn’t going to happen. The Commons will reject the amendment and the House of Lords will have to give way. They cannot block a manifesto promise backed by a clear majority in the Commons because the constitutional sky would fall in if they did. 

Whistleblowers

An amendment proposed by Lib Dem Peer Baroness Kramer requires the Government to introduce Regulations within six months of the Bill being given Royal Assent to ‘extend the circumstances in which an employee is considered unfairly dismissed after making a protected disclosure’. I have no idea what this means and Baroness Kramer did not explain what she had in mind. The amendment also requires Regulations which will oblige ‘employers to take reasonable steps to investigate any disclosure made to them under section 43C of the Employment Rights Act 1996’. Those Regulations will apply to any employer with more than 50 employees, a turnover in excess of £10,000,000, any employer in financial services or any employer with ‘vulnerabilities in other respects to money laundering or terrorist financing’. 

This is the sort of amendment you often see at Committee Stage where the point is to probe the Government’s intentions on a topic or to allow the person proposing it to start a wider debate on the issue. It isn’t seriously intended to become law. But in this case there was no debate. Baroness Kramer made a speech lasting about a minute and then there was an immediate division which passed the amendment. I have no idea what was going on there but the amendment will be rejected by the Commons. You can’t require a Government to introduce Regulations within six months without being very clear what those Regulations should say. 

Also – and forgive me for being technical about this – Section 43C does not define a ‘protected disclosure’. It sets out one condition (the others are set out in Sections 43B to 43H) necessary for a disclosure to qualify for protection. It says that a disclosure satisfies the section if it is made to the employer or to the person who is responsible for whatever failure is being complained about. On its own it is meaningless. A protected disclosure (what we normally call whistleblowing) is actually defined in S.43B and that is the section that talks about the disclosure of information which tends to show that someone has acted in breach of a legal obligation of some sort.

And you can’t require an employer to investigate every protected disclosure, because there is no clear method an employer can use for identifying them. An employee might raise a 43 page grievance and two years later a Tribunal might hold that something they said on page 24 technically amounted to a public interest disclosure. You can’t create a specific duty to investigate something that is defined so nebulously. The amendment doesn’t work and the fact that it was passed is frankly baffling. 

The Right to be Accompanied

Workers have a right to be accompanied at disciplinary and grievance hearings by fellow workers or trade union officials. The Employment Rights Bill now has a new clause in it allowing Regulations to specify other ‘professional bodies’ that can certify people to act in that role. The debate in the Lords seemed to proceed on the basis that union members currently enjoy an unfair advantage in being allowed to bring union officials along to hearings (although in my experience such officials would almost always qualify as fellow workers in any event). This amendment would essentially create a new industry for quasi-legal advisors to charge employees to accompany them at disciplinary and grievance hearings. It is a very bad idea. Luckily it is not something that is going to happen because the Commons will reject it. 

What does it all mean?

Frankly I find these amendments rather tiresome. With the possible exception of a right to time off for special constables, no effective Government could possibly accept them. If the Lords persists in any of them after they are rejected by the Commons then I will be astonished and appalled. I have been following this Bill since October and I just want it to be over. 

This autumn onwards – when we have the final text of what will be the Employment Rights Act 2025 – is when the real work begins. Opposition amendments made at this late stage are just a distraction. But we have two more days of debate scheduled for this week so there may be more distractions to come

[UPDATE – I missed two!

Just spotted another couple of amendments made to the Bill by the opposition. The first relates mainly to the guaranteed hours right and it provides that hen Regulations are made the Government must ‘have regard’ to the specific characteristics of seasonal work – which it goes on to attempt to define. I don’t think there is much to this. the need to ‘have regard’ to something is not very specific and I would expect Regulations to deal with situations where work is seasonal in any event. I assume that this amendment will be rejected by the Commons and then dropped.

The second amendment is a requirement for the Government to consult on all of the provisions in part one of the Act (that covers most of the individual employment rights set out in the Bill) and specifically seek the views of at least 500 SMEs in doing so. The Government must then report to Parliament within 18 weeks of initiating that consultation summarising the outcome and setting out the responses of the SMEs. This is not a serious proposal – it is essentially a prank. There is no way that a Government could launch such a huge consultation and law a report of its outcome within that timescale. This amendment will also be rejected by the Commons]