The cabinet reshuffle on Friday may well have major implications for the Employment Rights Bill. Of course, Angela Rayner was a key advocate for the Bill – but her departure alone would not have made me think that there was anything afoot. When I saw, however, that the Minister for Employment Rights, Justin Madders, had also left the Government I was quite taken aback. If the Prime Minister was happy with the way the Bill was progressing why would he dismiss the minister most directly involved in shepherding it through Parliament just as it reached its final stages? Is this an indication that the Government is open to a fresh approach?

The Bill will pass

I’m afraid those hoping for an explicit Government U-turn are going to be disappointed. The Bill is still going to pass.

First of all, the Bill has nearly finished it’s passage through Parliament. The Commons are due to consider the Lords amendments on 15 September. We are well past the point when the Government can introduce new changes. The only question is whether the Lords amendments should be accepted or not. 

Most will be – after all, the majority of them were made by the Government. Significant technical changes that make my eyes glaze over were made to the provisions on guaranteed hours. There were also some significant policy changes – the ban on fire and rehire was also changed significantly as I explained here All of these changed will obviously be accepted by the Commons where the Government has a large majority. 

The Commons will, however, reject the amendments made by the Opposition parties in the Lords. These range from introducing a six-month qualifying period for unfair dismissal to a new clause specifying that children can be employed on heritage railways. Some of these changes directly contradict the Government’s manifesto commitments and others are not really intended to become part of the Bill. 

Opposition amendments don’t stand up

For example, one amendment inserts the words ‘if requested by an employee’ at the beginning of the provisions on the duty to offer guaranteed hours. The amendment gave the Lords the opportunity to debate what should trigger an offer from the employer but it obviously can’t remain the Bill. How should the request be made? When should it be made? Why does the request need to come from an ‘employee’ when the right applies to ‘workers’? Does the employee who makes the request have to be the same worker who qualifies for the offer? Does the employee have to be employed by the employer in question or can anyone who happens to be employed by someone make a general request to all employers?  The amendment does not answer any of these questions because it was not intended as a serious revision of the law, but a jumping off point for a debate. I suspect the Opposition were quite surprised when it was passed.

Another amendment seeks to widen the right to be accompanied at disciplinary and grievance hearings to include representatives of ‘professional bodies’ specified by Regulations. Again we can have a debate about who an employer would have to accept as a companion, but the amendment would allow the Government to designate commercial organisations that would then be able to charge workers to have one of their lawyers represent them at disciplinary and grievance hearings. It would be a recipe for disaster and on reflection I am sure that anyone can see that. 

And then we get the qualifying period for unfair dismissal. I would be quite happy to see this set at six months. In fact I think that should have been the policy from the start and if I had my way that change would already have been made. Instead, the Government’s plan is to keep the qualifying period at two years until at least 2027. Putting that aside however the amendment keeps the ‘initial period of employment’ provisions that are supposed to coincide with a probationary period and provides that it starts only after the first six months of continuous service has ended. It’s nonsense. And, by the way, the amendment does not prevent a Government going on to abolish the qualifying period altogether by Regulation  once the Bill is in force. 

These amendments are debating points – they are not serious and they are not going to remain in the Bill (although I am on the fence about heritage railways). The Commons will reject them on the 15 September and the Lords will not – if they have any sense of propriety – insist on them. I wouldn’t rule out them throwing the Bill back to the Commons once just to make sure the Bill can’t’t have Royal Assent before the Labour Party Conference, but the Bill will get passed and the Government will not accept Opposition amendments that run counter to its manifesto commitments.

Passing the Bill is the easy bit

Some of the Bill comes into force automatically, two months after Royal Assent. Those issues are mainly concerned with the effective repeal of the Trade Union Act 2016 and there is no going back on that commitment. But the bulk of the Bill has to be implemented measure by measure – often following detailed consultation and requiring complex Regulations. If the new Ministers in charge are less enthusiastic about the Bill than Angela Rayner and Justin Madders were, then it is in the implementation that the impact of that will be felt. 

The current roadmap for implementation envisages a raft of consultations being launched this autumn. The Government proposes to consult on reinstating the School Staff Negotiating Body and setting up a Fair Pay Agreement in Adult Social Care. We also expect consultations on electronic industrial action ballots, day one rights for unfair dismissal; ‘ending the exploitative use of zero hours contracts’; fire and rehire; bereavement leave and rights for pregnant workers.

To be honest, I was sceptical that the Government would manage to put so many detailed consultations out so quickly even when the Minister most committed to be Bill would be the one overseeing them. With a new minister for Employment Rights (identity tbc at the time of writing) it is easy to see this timetable slipping. I would be frankly astonished if, for example, electronic balloting was introduced in April 2026 as the current roadmap promises.

I also doubt that political decisions will be the same post re-shuffle. For example, when the Bill was going through the Commons I wrote about what Justin Madders had said concerning the threshold at which the duty to offer guaranteed hours would kick in. This is a crucial policy decision that will largely determine how big an impact the new right will have. If it only applied to workers guaranteed less two hours a week then it would be largely symbolic. If it applied to those who are guaranteed 24 hours or more a week then that would be a huge issue. This is a political decision and Justin Madders indicated that he favoured a threshold towards the higher end. That decision will now be made by his replacement. If I were lobbying for employers I would detect an opportunity here.  

There are many other policy decisions that will need to be made over the next two years as individual measures are either implemented or kicked into the long grass. Replacing all of the Ministers responsible for making those decisions must be an indication that the Government is at least open to suggestions. What is in the Bill itself cannot be altered – but when and how the Bill will be implemented was always going to be the key issue. Don’t expect any Ministerial announcements denouncing the Bill or explicitly abandoning any of its provisions. Instead expect to see a gradual slipping in the timetable and more openness to business concerns when it comes to the detail.