The Employment Rights Bill – The Right to Guaranteed Hours

Posted on October 16, 2024 by Darren Newman

The right to guaranteed hours is the mechanism the Government has chosen to ‘ban’ zero hours contracts. It takes up 11 densely worded pages in the Employment Rights Bill inserting a new Chapter into Part 2A of the Employment Rights Act 1996. It is not an easy read. One reason for this is that after you have slogged through it you emerge little the wiser. All of the crucial details are left to be ‘specified’ by future Regulations. As a result it is impossible to tell how significant this new right will be and how far it goes towards ‘banning’ zero hours contracts. 

All we can see in these eleven pages of text is the overall structure and framework of the new right. What follows is an explanation of how I understand that structure. I think I have understood it, but it is quite possible that I have missed something important or got confused somewhere along the way. I’m happy to be corrected, but slightly sorry for anyone with enough time on their hands to correct me. 

So here goes. 

Qualifying workers

In essence, these new provisions will oblige employers to offer contracts with guaranteed hours to ‘qualifying workers’ whose working pattern over an as yet to be specified reference period reaches an as yet to be specified threshold. Qualifying workers include zero hours workers – hourly paid workers for whom there are no guaranteed hours –  or workers whose guaranteed hours fall below a level set by the Secretary of State in Regulations. 

The number of hours at which that threshold is set will obviously be crucial. The Next Steps document says the right will apply to workers with a ‘low’ number of guaranteed hours but does not give any indication of what ‘low’ means. Does it mean just two or three hours? If so, then this new right will not be very significant. Does it mean sixteen hours or even more? If so, then employers will have to constantly review the hours that they are offering workers to see if they need to translate that working pattern into a contractual offer. 

The new right is based on a reference period that will be set out in Regulations. The Next Steps document talks about a 12-week reference period and this has been an established part of Labour’s policy since the beginning. However, the Bill itself does not set the reference period. I don’t think this reflects second thoughts on the part of the Government so much as a desire to reserve the option of adjusting the reference period over time depending on how the new right operates in practice. For now, I think it is safe to work on the basis that the reference period will be set at 12 weeks. 

An Offer of Guaranteed Hours

A worker will qualify for an offer of guaranteed hours if over the course of the reference period they work a number of hours which is in excess of the minimum number of hours under their contract and do so with a level of regularity that will be set out in Regulations. 

So, for example, the Regulations could apply to workers whose contract guarantees no more than 8 hours a week and an offer of guaranteed hours could be required if over the 12 week period the worker works in excess of 8 hours in at least 6 of those 12 weeks. Or, of course the Regulations might say something completely different.

Where the duty is triggered the employer must make an offer to the worker either of a new contract or of a variation to their existing contract. The offer must ‘reflect’ the total number of hours worked in the reference period.  So if the worker worked 240 hours over the 12 week reference period then the offer would have to ‘reflect that’. Exactly what that means, you will be astonished to learn, is something that will be set out in Regulations. 

Once the offer has been made and assuming it is accepted then the cycle begins again. If the worker still qualifies because of the ‘low’ number of hours that are guaranteed then there will be another reference period and another potential obligation to offer a contract to reflect hours worked in excess of the new guaranteed minimum. This continues – essentially a ratcheting effect – until the worker no longer qualifies because their guaranteed hours are no longer ‘low’. 

We then get some quite complicated (!) provisions preventing the employer from offering the varied or new contract for a limited term unless it is reasonable to make the offer on that basis. There is also the power to make Regulations specifying when the offer needs to be made, what form it should take and what other information the employer needs to give to the worker.

The offer that is made should not be less favourable to the worker in relation to terms other than hours and time of work. For example, the employer couldn’t make an offer that guaranteed the worker a certain number of hours but reduced the hourly rate of pay.  The exception is that if it is a ‘proportionate means of achieving a legitimate aim’, the offer may include less favourable individual terms provided that it is ‘overall’ no less favourable than the terms on which the worker worked during the reference period. 

The employer’s duty to make an offer ends if the worker resigns (or terminates the working arrangement if they are not an employee) or if the employer reasonably terminates the contract / arrangement for a  qualifying reason. That is then defined in the same terms as the ‘potentially fair’ reasons for dismissal that we are used to in unfair dismissal cases (conduct, capability, redundancy etc). If the termination happens after the offer but before the offer is accepted (the ‘response period’) then it is treated as having been withdrawn.

Accepting the Offer

A feature of the right to guaranteed hours is that it operates as an obligation on the employer to make an offer which then has to be accepted by the employee. This contrasts with the rather more straightforward approach in the Fixed Term Employees Regulations under which the contract simply becomes permanent once the relevant conditions are met. 

Because of this approach we have to have a provision (about a page and a half) dealing with the worker accepting or rejecting the offer during the ‘response period’. In a startling move, the duration of the response period is left to Regulations to determine. The Bill then goes into detail about what happens if the contract or arrangement ends before the end of the response period – it seems that the offer still stands unless the employer has fairly terminated the contract / arrangement.

The last part of these provisions are pretty standard – giving the worker the right to bring a Tribunal claim if the employer is in breach of its obligations with the Tribunal being able to make a declaration and order compensation if the claim succeeds. 

And that’s all there is to it.

Will this Work?

The overall shape of the new right seems to make sense. But it is hugely complex and it will be quite a challenge to translate the legislation into guidance that employers – particularly small businesses – will be able to follow. 

There are also some gaps. How, for example, does the Government set the various thresholds that will need to be specified without giving employers a target to aim at? If the Regulations say an offer must be made if the worker works more than 8 hours in at least six weeks of the reference period (for example) then what is to stop the employer from ensuring that the hours offered are never quite as regular as that? Will the new right create an incentive for employers to restrict working hours or ensure that workers never develop a regular pattern of work? 

I also don’t see how the new right will cope with seasonal work or other surges in activity. If someone is recruited in October and the next 12 weeks are really busy with lots of work offered, will the employer really have to offer a contract guaranteeing consistent hours after the Christmas rush is over? Perhaps the limited permitted use of fixed-term contracts could help here, but I don’t quite see how that could work in practice. 

These issues might be addressed as the Bill progresses, but there is a danger that the Government will wave away concerns by promising that they will be dealt with in the subsequent Regulations.

And that of course is my central objection. I don’t criticise the Government for not yet knowing how this new right can be made to work. That’s OK. The idea of banning zero hours contracts may have been Labour Party policy for almost a decade, but they have never before had to translate that political goal into a workable legislative framework. It is early days. If they hadn’t made the absurd commitment to introduce legislation inside the first 100 days then they could simply have announced that they would begin a formal consultation in the autumn on how to achieve their aim with a view to legislating sometime in 2025. That would be the sensible way to implement a policy that is complex and difficult and needs to be thought through carefully.

As it is, in order to meet a meaningless 100-day target they will force Parliament to spend months slogging through empty provisions before eventually launching a consultation on the parts of the policy that really matter. The results will then be presented to Parliament in the form of Regulations that will receive next to no legislative scrutiny and which cannot be amended. This is not a recipe for good lawmaking. It would be better if the Government just scrapped the measures currently in the Bill and undertook to legislate separately once they have consulted fully and have a clearer idea of what their actual policy will be. 

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The Employment Rights Bill – Unfair Dismissal as a Day-One Right.

Posted on October 11, 2024 by Darren Newman

One of the features of the Employment Rights Bill that has attracted particular attention is the abolition of the qualifying period for unfair dismissal making it a day-one right (see Schedule 2 of the Bill). This is something that a Government already has the power to do by statutory instrument, so in theory there is no need to include the measure in the Bill at all. If they wanted to, the Government could abolish the qualifying period by Christmas.

But they don’t want to. Recognising the impact that the change will have and the concerns that the business lobby have expressed the Government has actually committed (in a Next Steps document published alongside the Bill) not to introduce the change before the autumn of 2026 – more than two years after the election. Essentially this amounts to a long transition period with the effective qualifying period reducing over time. Employees recruited today will qualify for unfair dismissal about two years from now. Employees recruited in a year’s time will qualify after about one year’s service – and so on. 

Once the change is made, it is clearly intended to be permanent. Section 108 of the Employment Rights Act 1996, which sets out the current qualifying period, is repealed. A future Government will not be able to issue regulations increasing it because there will be nothing to increase. They would need to introduce primary legislation which – as we are seeing – takes a great deal of time and effort. 

I have suggested a few times that it is wrong to refer to the abolition of the qualifying period as making unfair dismissal a ‘day-one’ right. If there is no qualifying period then employees who have been recruited and have a contract of employment but who have not yet started work could also qualify. Well, the Bill takes care of that. A new S.108A provides that an employee cannot claim unfair dismissal unless they have started work. So if you manage to dismiss an employee before they cross the office threshold on the morning of their first day then you are safe. There are the expected exceptions here for ‘automatic’ unfair dismissal where the reason for dismissal is things like union membership, whistleblowing or asserting a statutory right etc. 

More contentious is the provision for a probationary period. The Bill doesn’t actually use the word probation – but it does refer to an ‘initial period of employment’. It creates a Regulation making power that allows the Secretary of State to provide for a different standard of reasonableness to apply to dismissals that take place during that initial period. This includes situations where the employer gives notice during that period which expires up to three months after the initial period has ended. 

The duration of the initial period of employment (shall we call it the IPE?) is not set out in the Bill – that is something for the Secretary of State to specify in the Regulations themselves. The Government has indicated in its Next Steps document that it currently favours a 9 month period. In the real world six months is much more common – but many employers do allow for three month extensions to probation so I suppose 9 months is not a figure simply plucked from the air. 

Even if the dismissal does take place during the IPE it will still be possible for the employee to claim unfair dismissal. The employer will have to show that the reason for dismissal is either related to the employee’s conduct or capability, is because the employee is subject to a statutory ban (e.g. not entitled to work in the UK, or disbarred from the profession)  or is ‘some other substantial reason related to the employee’. 

Importantly, a dismissal for redundancy is not included in this list. This means that employees who are made redundant on day one can claim unfair dismissal in the same way as any other employee and the same test of fairness will apply. 

The reference to some other substantial reason (SOSR) is a little bit different from the version we see elsewhere. In a normal unfair dismissal claim the employer has to show that the reason for dismissal is “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (S.98(1)(b) ERA 96). But the special rules covering the IPE will only apply if the reason is ‘related to the employee’ which suggests the something like a dismissal connected with a business reorganisation would not be covered, though a dismissal following a breakdown in working relationships would. This is obviously a deliberate choice as Regulations can specify whether or not particular reasons should be seen as relating to an employee.  There is also no suggestion that the reason in itself needs to be one that is ‘capable of justifying dismissal’ – which is usually an important part of the SOSR test. This difference might be deliberate or it might just be something that will be amended as the Bill progresses. I’m intrigued by what the Government is thinking about here. 

So how easy will it be to dismiss employees during the IPE? The Bill doesn’t say. The Regulations introduced by the Secretary of State can ‘modify’ the test of reasonableness when assessing an unfair dismissal claim. In theory they could only give a slight tweak – merely requiring the Tribunal to take the fairness of any probation period into account for example. Or they could apply a completely different reasonableness test, perhaps requiring a specific procedure to be followed but providing that a dismissal should otherwise be presumed to be fair. 

In the Next Steps document the Government says. 

As a starting point, the Government is inclined to suggest [a fair procedure] should consist of holding a meeting with the employee to explain the concerns about their performance (at which the employee could choose to be accompanied by a trade union representative or a colleague). The Government will consult extensively, including on how it interacts with Acas’ Code of Practice on Disciplinary and Grievance procedures. 

I’m still worried that the rules on probation will turn into something reminiscent of the statutory dispute resolution procedures (if you don’t know what they were, ask someone who has been in HR or employment law for 20 years and watch the corner of their eye twitch as they remember). But this is an argument for next year.

In the meantime, yes the Government is legislating to make unfair dismissal a day one right – but not for a while yet. Employers will be able to operate a probation period but we don’t yet know how long for or what they will need to do to ensure that any dismissal during that period is fair. 

That all seems nice and straightforward. Do I have to look at zero hours contracts now or can I find something else to write about first? 

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Fire and Rehire under the Employment Rights Bill

Posted on October 10, 2024 by Darren Newman

There is a lot to say about the Employment Rights Bill which was introduced in Parliament earlier today.  In many ways it really is transformative – its also long and detailed. My plan is not to write one big summary of it (dull) but to highlight individual reforms that I think are interesting or important. 

I’m starting with Clause 22 on fire and rehire  because as well as being both interesting and important – it is also simple and easy to grasp.  I have to admit that I can’t say the same for the proposals on zero hours contracts – but that is an issue for a future post. 

The provisions on fire and rehire frankly go much further than I had expected. Here is what Labour’s Plan to Make Work Pay said before the election: 

Labour will end the scourges of ‘fire and rehire’ and ‘fire and replace’ that leave working people at the mercy of bullying threats. We will reform the law to provide effective remedies against abuse and replace the inadequate statutory code brought in by the Government, with a strengthened code of practice.

That all sounded a bit soft to me. Like they weren’t really going to ban the practice, just strengthen the Code of Practice (the current one is very vanilla) and limit ‘abuse’. 

What we actually get is a provision – inserting a new S.104I into the Employment Rights Act – that says that it is unfair to dismiss an employee if the principal reason for dismissal is either that the employee refused to agree to a variation of contract sought by the employer or to enable the employer to recruit another person (or rehire the employee) under new terms but with substantially the same duties. 

That is essentially a blanket ban on the practice of fire and rehire / dismissal and reengagement. It is (will be) automatically unfair to dismiss an employee for refusing to agree to a variation in contract. Once you have agreed terms with an employee, you are stuck with them. You cannot force through a change. Nor can you skip the proposed variation and just replace one employee with another on worse terms. Both practices will be automatically unfair.

There is an exception. The Government says in a ‘Next Steps’ document that businesses will be able to ‘restructure to remain viable’ but as the Bill is drafted strikes me that this is a very narrow exception. 

Under the new provision, for a dismissal to be lawful the employer has to show that it was in ‘financial difficulties’ (no other kind will do) that would affect its ability to carry on the business. It must also show that it could not reasonably have avoided the need to make the variation. As I read it, the variation needs to be a last resort in the face of an existential threat to the employer’s business. That is a major shift from the current position where the decision need only be within the range of reasonable responses. I’m sure lots of employers will want to argue that their particular case meets the kind of ‘financial difficulties’ that are envisaged by the Bill, but I really think the exception is intended to be a very narrow one. I would not like to be the lawyer advising an employer that its situation allowed for dismissal and reengagement.

The exception is so narrow that I think many employers, in the private sector at least, will seek a way around it. One tactic might be an increasing reliance on variation clauses. These can allow an employer to vary a contract without seeking an employee’s agreement because that agreement is essentially baked into the contract itself. They would have to be careful not to operate these clauses in a way that undermined trust and confidence, as that could lead to a constructive dismissal claim. But otherwise the case law suggests that a clearly worded variation clause can be relied on even for changes that are detrimental to the employee. 

Before employment lawyers start brushing up their model variation clauses, however, I suspect that as the Bill goes through Parliament there will be some debate as to whether an amendment is needed to close this loophole. But even if that doesn’t happen, this is still a significant new right that will have a big impact on how employers approach restructuring and redundancy. 

There may be more to come. The Next Steps document says:

As key remedies to end this practice, we are committed to consult on lifting the cap of the protective award if an employer is found to not have properly followed the collective redundancy process as well as what role interim relief could play in protecting workers in these situations. 

Neither of these measures are in the bill itself as far as I can see. instead they are matters that may be consulted on separately. Interim relief – currently used mainly in whistleblowing cases – allows a hearing at very short notice at which the Tribunal can issue a ‘continuation of contract order’ to ensure that the employee continues to be paid while the matter is litigated. I can see why the Government might want to extend it to situations where employees are being threatened with dismissal unless they agree new terms.

But lifting the cap on the protective award seems an odd idea. This is the sum paid to employees who are dismissed when the employer has not complied with its collective consultation obligations under the Trade Union Reform and Employment Rights (Consolidation) Act 1992. It is currently set at a maximum of 90 days’ pay and that is taken as the starting point for any calculation – with the award being reduced to reflect the extent to which the employer has engaged in consultation. Removing the 90-day cap makes no sense to me because Tribunals would have no benchmark to use in calculating the award. It is punitive in nature and not based on any losses the employee might have suffered.  Still, if the Government wants to consult on that we can all weigh in when it does so. 

There will be a lot of debate following the Bill’s publication about how much the Government has watered down its proposals or caved in to the business lobby. But let’s be clear. On the issue of fire and rehire this is a big win for trade unions who have long opposed the practice. To all intents and purposes, the Employment Rights Bill makes fire and rehire unlawful. 

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Probation Periods and Unfair Dismissal

Posted on September 19, 2024 by Darren Newman

The Financial Times reported last night that 

Companies will be able to keep new hires on probation for up to six months under a compromise Labour plan despite an election pledge to give employees “day one rights”

It seems there has a been a ‘lot of back and forth’ between Angela Rayner and Business Secretary Johnathan Reynolds about how long probation periods should be with the latter favouring a longer period and the Deputy PM preferring an even shorter one. A Whitehall source is quoted as saying “its a decent compromise”

Personally I am surprised that ministers have spent any time at all thinking about this. Six months is – by some margin – the most common probationary period I have come across. Encouraging employers to operate a longer period would hardly seem in keeping with the principle of day-one rights and a shorter period which undercut arrangements already in place and would have struck many businesses as unfair. If a probationary period is going to be provided for in the forthcoming Employment Rights Bill, then six months is the obvious duration to go for. 

Back in September last year I predicted that Labour would probably end up introducing a qualifying period of six months. Since that could be done by Regulations (see this post) it would be a quick and easy change and would reflect most probationary periods already in place. 

But it does not look like this is what Labour is proposing. Unfair dismissal will become a day-one right – the manifesto is quite clear on that – but there will be provisions specifically dealing with dismissals during a six month probation period. 

The big question is what the position during probation will be. I can think of a number of options. 

Option 1 – If an employee is taken on with a probationary period then any dismissal during that period will be held to be fair.

Option 2 – Provided any dismissal is shown to be for the reason of capability or conduct then a dismissal during the probationary period will be held to be fair.

Option 3 – In deciding the fairness of a dismissal the Tribunal will be required to take into account the fact that the dismissal took place during a probationary period.

Option 4 – A specific procedure will be set out for the operation of a fair probation period and the fairness of any dismissal will depend on whether or not the employer has followed that procedure. 

Personally I would go for Option 3. It would be easy to draft (Johnathan Chamberlain of Gowling WLG has helpfully shown how) and would allow for common sense. Option 1 is really no better than just having a six month qualifying period and Option 2 would deem blatantly unreasonable dismissals to be fair. 

Option 4 would be an abomination. Anything but Option 4. I shouldn’t even have suggested it in case someone reads it and thinks it’s a good idea. If Option 4 happens I will stand outside Parliament with a loudspeaker like an employment law version of Steve Bray. Those of us who remember the statutory dispute resolution procedures will shiver at the prospect of Option 4. Forget I mentioned it. 

Option 3 seems to me to be the way to go. It fulfils the manifesto commitment because it clearly makes unfair dismissal a proper day-one right while allowing employers to assess employees during probation and make a reasonable decision as to whether they should be kept on or not. The Financial Times quotes Matthew Percival of the CBI as calling for ‘only a light touch approach’, but in unfair dismissal cases a light touch is already baked into the test of reasonableness. I don’t think it is too much to ask employers to behave reasonably when operating probation periods. It is easy enough to see how that would work. Tribunals would be likely to look for

  • transparency about the process,
  • reasonable communication and an opportunity to improve
  • a decision based on an honest belief that the employee is unsuited to the work
  • reasonable grounds to back up that honest belief

Specifically directing Tribunals to take probation into account may not be strictly necessary – they would do that anyway – but there is nothing wrong with adding something to that effect in the test of unfair dismissal. It has been done before. One thing I particularly like about the wording that Johnathan Chamberlain came up with is that he added the reference to probation immediately after a requirement that Tribunals take into account the ‘size and administrative resources of the employer’s undertaking’. Those words were added by the Employment Act 1980 soon after a new Conservative Government came into power. Giving tribunals a bit of a steer by requiring them to look at particular factors, but without undermining their ability to make a judgment about fairness, has a long history. 

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Labour’s new right to a four-day week

Posted on August 30, 2024 by Darren Newman
Screenshot 2024-08-30 at 12.57.39

So a story seems to have exploded over the the course of the day that the Government is going to give workers the right to work a compressed four-day week. They aren’t. But they might be about to strengthen a right that already exists.

What these press stories are about is the ‘right to request flexible working’. This was introduced by the Employment Act 2002 and was originally aimed at employees with child-care responsibilities wanting to work part-time. Over the years it has been expanded so that it is a right that now applies to all workers who want to change their hours of work – irrespective of their reason for doing so. 

The reference to flexible working is a bit of a misnomer really. The key section of the Employment Rights Act actually refers to a right to request a contract variation. Essentially a worker can ask the employer to make a change to their contract relating to the hours they are required to work, the times they are required to work or to allow them to work from home. When a request is made under this section the employer must ‘deal with the application in a reasonable manner’. If the application is refused it must be refused for one of a number of listed business reasons and the decision must not be based on incorrect facts. 

So if an employee asks to be allowed not to work on Fridays, the employer could refuse that request on the grounds that Friday is actually their busiest day – but if it does so then it must be true that Friday is their busiest day. The worker could also ask to work a four-day week (whether under compressed hours or otherwise) or for that matter a three-day week or a two-day week. A worker could ask to work nothing but Sunday mornings if that’s what they want. Each of these would be a valid request and the employer would have to deal with that request in a reasonable manner.

Crucially, however, the employer’s refusal does not have to be a reasonable one. If the employer refuses the request because of the additional costs involved, there can be no argument that the costs are small enough that a reasonable employer should absorb them. The employer is required to be sincere in its reasons for refusal – but does not have to be reasonable. The worker can ask to work compressed hours but the employer can pretty easily say ‘no’.

In 2019 the Conservative Party manifesto promised to change the law, saying: 

We will encourage flexible working and consult on making it the default unless employers have good reasons not to. 

What that turned into was the Employment Relations (Flexible Working) Act 2023 which tweaked the procedure for making a request. Separately, the Government also made it a a ‘day one’ right. But the reforms did not do anything to change the grounds on which the employer could refuse a request or to introduce a requirement for any refusal to be reasonable. 

Labour’s proposals for employment say they will act by: “making flexible working the default from day one for all workers, except where it is not reasonably feasible.”

Love the use of the word ‘default’ there – a deliberate call-back to the 2019 Tory manifesto. The trouble is we still don’t have a clear idea of what it means. My assumption is that the law will be changed to raise the threshold of reasonableness – so that it is harder for an employer to refuse a request.  But I’m happy to wait until a Bill is published to see what is actually intended. One thing I am sure about however. Whatever the new Bill says it will not create a specific right to ask for a four-day week – whether that is a move to part-time working or compressed hours.

Workers already have that right and have had it for years.

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The New Duty to Prevent Sexual Harassment

Posted on August 14, 2024 by Darren Newman

I have a problem with the Worker Protection (Amendment of Equality Act 2010) Act 2023. It’s a rubbish name for a statute to begin with. But I also think it does something fundamentally undesirable. Bear with me, though, because it will take a while to explain. 

This Act was introduced as a private member’s bill, although it was supported by the Government of day and implemented a policy that they had committed to back in 2021 to: “introduce a duty requiring employers to prevent sexual harassment”.

The idea that there should be a duty to prevent harassment – as opposed to a remedy for those who suffer it – seems reasonable enough. Bringing a claim for harassment is a gruelling experience and obviously it would be better if the harassment had simply not happened in the first place. Focussing the duty on sexual harassment – as opposed to any other kind – is a result of this proposal emerging from the 2018 report of the House of Commons Women and Equalities Committee into sexual harassment in the workplace.

And what is that duty? Here is what the Act says (creating a new S.40A of the Equality Act):

An Employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment

This duty comes into force exactly one year after the Act received Royal Assent – which gives employers until 26 October 2024 to put the appropriate measures in place. You know the sort of thing – risk assessments, policies, training. All the usual stuff. This seems straightforward. But there are some things to unpick before we get to the issue that I am concerned about.

The definition of sexual harassment

First of all, what is meant by sexual harassment? Harassment as a whole is defined in S.26(1) of the Equality Act as unwanted conduct ‘related to’ a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for them. 

This new Act does not create a duty to prevent this sort or harassment. It only applies (new S.140A(2)) to sexual harassment as defined in S.26(2) of the Equality Act. This deals with unwanted conduct ‘of a sexual nature’ which has the purpose or effect that is described in S.26(1). 

We have never before had to distinguish between harassment under S.26(1) and S.26(2). And it is quite common to describe as ‘sexual harassment’ behaviour which does not involve conduct of a sexual nature. Suppose we have a misogynistic manager who subjects a female colleague to denigrating comments and jokes. That would be unwanted conduct related to her sex and which violates her dignity. We may call that ‘sexual harassment’, but within the meaning of the statute it is just harassment. To be sexual harassment within S.26(2) it must involve conduct of a sexual nature. It is only that sort of harassment that employers will have a duty to take reasonable steps to prevent. 

The role of the Commission

So what happens if an employer acts in breach of this duty to prevent sexual harassment? Individuals will not be able to sue the employer for the breach – that power is reserved exclusively to the Equality and Human Rights Commission.  It can investigate employers who appear not to be complying with the duty and ultimately issue unlawful act notices to employers who continue to be in breach. An employer who does not comply with an unlawful act notice can ultimately be fined – though I am not sure that this has ever happened in practice. Even unlawful act notices are rare. One was issued to Pontins back in February this year, but I am not aware of any others since the Commission was founded in 2006. 

For most employers, the chances of the Equality Commission knocking on their door and demanding to see what steps they are taking to prevent sexual harassment are as close to zero as makes no difference.  On the other hand, if I were the BBC, the Ministry of Defence or the Metropolitan Police I would regard a visit from the Commission as pretty much inevitable. 

But I shouldn’t be too cynical about this. I know lots of employers who will genuinely want to do more to prevent sexual harassment and will regard this law as an opportunity to focus on the issue. Employers in Local Government and the NHS will also come under considerable political or union pressure to make sure that they are seen to be complying with the new duty. 

Enhanced compensation

Nevertheless, I think the real impact of the Act will be felt in the Employment Tribunals. Just because individuals cannot sue for breach of the duty per se, that does not mean that individual claims will be unaffected. The Act inserts a new section into the Equality Act (S.124A) allowing the Tribunal to increase compensation when someone successfully sues their employer for sexual harassment and it is then found that the employer had breached its preventative duty. In those circumstances, the Tribunal “may” increase the compensation awarded to the employee by as much as 25% in order to reflect the extent of the employer’s failure. Given that there is no cap on compensation awarded for harassment, this could potentially represent a significant sum and be well worth having. 

This brings me (at long last) to the problem. It strikes me that almost any successful sexual harassment claim will attract this uplift. 

In a harassment claim, the claimant is relying on the fact that the employer is liable for the actions of the individual who has harassed them because the harassment was something done ‘in the course of their employment’ (S.109(1)). But the employer has a defence. It can avoid liability for harassment if it shows that it has taken “all reasonable steps” to prevent the individual from “doing that thing” or “doing acts of that description” (S.109(4)). 

Here’s my point. If it is a defence for an employer to show that it has taken all reasonable steps to prevent the harassment then it must follow that in any successful claim for sexual harassment the employer has failed to establish that defence. And if it can’t show that it has taken all reasonable steps to prevent the harassment then it seems to me that it must be in breach of its duty to take reasonable steps to prevent sexual harassment. 

Now, technically, this new duty does not require the employer to take ‘all’ reasonable steps, but I don’t think that omission affects the meaning. Asking whether someone has taken reasonable steps to prevent something is equivalent to asking whether they have taken such steps as were reasonable. The employer could hardly expect to discharge the duty to prevent sexual harassment by pointing out that it took some of the reasonable steps open to it but decided not to take the others. The technical guidance being produced by the Equality Commission certainly draws no such distinction.

A hierarchy of harassment?

So the situation we have is that any claim for sexual harassment will – all other things being equal – attract a higher level of compensation than a claim for ‘normal’ harassment where there is unwanted conducted that is related to a protected characteristic. But why should we treat sexual harassment as being more serious than, say, racial harassment? In both cases the harassment might be absolutely devastating to the victim and involve serious criminal conduct. I don’t think it is desirable or in keeping with the spirit of the Equality Act to create a hierarchy of harassment based not on the harm done but the basis of the claim.

It is also inevitable that we will have litigation seeking to draw a distinction between unwanted conduct related to sex and unwanted conduct of a sexual nature – because the way in which the harassment is categorised could significantly affect the compensation awarded. That distinction will not always be easy to draw.  

The Government will have the opportunity to address this issue in its proposed reform of the Equality Act. According to ‘Labour’s Plan to Make Work Pay’: 

Labour will require employers to create and maintain workplaces and working conditions free from harassment, including by third parties. And Labour would properly tackle sexual harassment at work. One in two of all women have been sexually harassed at work; this must change. Labour will strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts.

It’s not exactly a clear pledge – but it does give the Government wiggle room to extend the new provisions to all forms of harassment. Any changes would not come into force until after the sexual harassment duty takes effect in October – but the sooner they can be made the better.

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Should the BBC have sacked Huw Edwards before he resigned?

Posted on August 1, 2024 by Darren Newman

Was the BBC wrong to keep Huw Edwards employed despite knowing that he had been arrested on such serious charges? Looking at the timeline I think it’s difficult to criticise their approach. Most large public sector organisations would have done the same. 

When an employee is accused of a serious criminal offence – the sort of offence that, if they are guilty, would mean that they obviously could not continue in their role – then the employer has a choice. They can dismiss the employee at once or wait for justice to take its course and keep the employee suspended on full pay until they are either convicted or acquitted.

We often say that a person is innocent until proven guilty. But we don’t really behave as though that is true. Employers can certainly not take the risk of allowing employees to continue to work with allegations hanging over them that suggest that they pose a risk to either the business, its customers or members of the public. They often have to be kept away from the workplace – which usually means a suspension on full pay. Waiting for a verdict can therefore be a very expensive option. What is more, while a conviction would certainly give solid grounds for dismissal, an acquittal could leave the employer in a very difficult position. 

Imagine a teacher charged with offences that raise serious safeguarding issues. If a jury decides that they are not ‘sure’ that the individual is guilty, is it really an option to let the teacher return? Would parents feel comfortable with their children being cared for by a teacher on the basis that ‘nothing has been proved’? In those circumstances the employer might well dismiss. Not because the teacher is guilty but because there is a risk that they might be. This is a potentially fair reason for dismissal (employment lawyers describe it as an SOSR dismissal – a dismissal for ‘some other substantial reason) and depending on the circumstances might well be held to be fair. 

In fact, an employer might still be acting fairly if it dismisses before a trial even takes place. The argument would be that given the nature of the work it is not feasible for an employee who has been charged with such an offence to return. If there is enough evidence to sustain a charge, then an employer might reasonably conclude that there will always be a level of suspicion hanging over the employee and so it may as well proceed straight to dismissal rather than keep the employee on paid suspension for an extended period first. That is of course unfair on a wrongly accused employee – but an ‘unfair dismissal’ case is primarily concerned with the reasonableness of the employer’s decision to dismiss rather than with whether that decision causes injustice to the individual. For the purposes of an unfair dismissal claim, the needs of the employer might outweigh the unfairness to the employee. 

But there are other factors that the employer needs to consider. If its employees are vulnerable to false allegations – perhaps because of the kind of people they have to interact with or because they are in the public eye – then the employer will not want to be hasty. It sends a negative message to other employees if it appears that the employer will simply dismiss anyone against whom serious allegations are made. The employer will want to check – as best it can – the circumstances of the allegation and assure itself that there is some substance to it. 

This is often made more difficult if the employee is signed off sick and cannot be spoken to. That is likely at the very least to delay any decision about what to do. Of course the employer does not have to keep the job open indefinitely but sickness absence does make it harder to reach a decision.

There is also a wider duty of care. I have known of cases where employees facing serious charges have been identified as being at risk of suicide. In those circumstances the question of whether an Employment Tribunal would regard it as ‘fair’ to dismiss them rather fades into the background. These are sensitive matters that have to be handled carefully. 

One other factor to throw into the mix is the contract of employment. That will allow the employer to dismiss without notice if the employee is actually guilty of gross misconduct. But if the Tribunal (or court) accepts on the ‘balance of probabilities’ that they are innocent, then dismissal without notice would be a breach of contract. We would call that a ‘wrongful’ dismissal as opposed to an ‘unfair’ dismissal and I try my best not to get too irritated when journalists conflate the two. To avoid that the employer has to dismiss with notice, or at least with a suitable payment in lieu. In some cases even that is not possible. It is not unknown for very senior employees to obtain an injunction preventing dismissal before proper procedures have been followed. This all depends on the terms of the contract which for senior (or very high profile) individuals can be quite complex.

So taking all of these issues together, how well did the BBC do? 

As far as I can tell, allegations about Edwards surfaced in the summer of 2023 and he was taken off air in July. At that time the indication was that this was not being treated as a criminal matter by the police and Edwards himself started receiving medical care and may have been hospitalised. In those circumstances it is difficult to see what could be done. The allegations were being made from someone outside the organisation and related to alleged behaviour that took place outside work. The BBC would of course want to investigate matters but it would be difficult to do so quickly. Most employers would want to know more about the health of the employee before interviewing them about the allegations, even if that meant delaying matters. Realistically it is also harder to progress an investigation over the summer holiday period. 

It is not clear that those allegations would have been sufficient to lead to dismissal. The situation changes, however, when Edwards is arrested in November 2023 (but not charged) for offences which eventually led to his conviction. Assuming the BBC knew about the arrest and the broad nature of the allegations that were being made, they would want to decide what this meant for his future. With hindsight it might seem obvious that he would have to go, but it is reasonable to expect the BBC to take some time to assess what the situation was and how the case was likely to proceed. Was Edwards going to accept guilt or claim that he was completely innocent? Was he the victim of a tabloid smear campaign and did that mean that the BBC should stand by him? Was he available for interview and what was he prepared to say? Finally, what were the terms of his contract and what did it say about his notice period?

In the event he resigned in April – before he had been charged with any offences. We don’t know whether that was something he decided out of the blue, or whether it was the result of discussions with his employer. It was reported at the time, however, that he was not ‘paid off’. It looks as though he was paid through to April 2024 but not beyond that. If that is so then it is likely that he resigned without notice – or perhaps had given his notice to the BBC some weeks or months earlier. 

Some employers worry about accepting a resignation in these sort of circumstances. But they don’t really have the option of refusing if the employee gives notice. Employees are entitled to resign if they choose to do so. Where there is a safeguarding issue, the employer might need to carry on with an internal investigation until it reaches its conclusion and can decide whether or not it needs to make a referral to the Disclosure and Barring Service, but that is not a factor in Huw Edwards’ case. From a strictly legal point of view the employee choosing to resign is a good thing as it reduces the risk of any legal challenge and saves the employer from having to make a potentially unfair decision to dismiss.

I note that the BBC has apologised for the way in which it handled the initial allegations – which did not lead to criminal proceedings –  in May of last year. No doubt there are lessons to be learned and things they can improve. But on balance I think the BBC have reason to be pretty satisfied with how the employment question was resolved. A lot has been made of the amount that Edwards was paid while he was off air – but we have to remember that he was a highly paid individual and a few months pay will inevitably add up to a hefty sum. It is better to look at how long he was paid for and whether things could have been dealt with more quickly.  From that point of view we can see that a serious allegation made in November 2023 led to a resignation in April 2024 with no additional sum being paid in settlement. Given the high-profile nature of the case and seriousness of the allegations Edwards faced, I think that is a pretty good result for the BBC. Many employers I know will be envious of how quickly and (relatively) cheaply the issue was resolved. 

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Abolishing the qualifying period for unfair dismissal

Posted on July 17, 2024 by Darren Newman

I love a State Opening! I am an absolute sucker for a man in tights carrying a stick with a Cap of Maintenance on the end even though no-one seems very sure why he is doing that. I also like the subtle symbolism of how the Lord Chancellor kneels before the King as if being highly deferential but then hands him a speech written by the Government that he is obliged to read out word for word. 

It has been a while since the actual text of a King’s (or Queen’s) Speech has held any interest for employment lawyers. The last Government reformed employment law by supporting a number of small Private Members’ Bills. And they were all pretty modest in their scope. But in this year’s King’s Speech we get the announcement of a full-on Employment Rights Bill that looks set to be the biggest employment law bill since 1975. To go along with the Speech itself, the Government published background briefing notes which set out in a bit more detail what is to be included. Those notes reiterate the commitment to ‘Labour’s Plan to Make Work Pay’ that I’ve picked apart in several earlier posts. The Employment Rights Bill, the notes say, “will deliver on policies as set out in the Plan to Make Work Pay that require primary legislation to implement”

For me that raises a question about how one of the key policies is to be delivered. As we all know, the Government intends to make unfair dismissal a ‘day-one right’, abolishing the current requirement for employees to have two years’ continuous service before they can claim that their employer has acted unreasonably in dismissing them.

(If the qualifying period is abolished altogether, the employee may not even need to make it to day one. A dismissal is the termination of the contract of employment by the employer. There is no reason why a dismissal could not occur after the contract has been entered into but before the employee has actually started – see Sarker v South Tees Acute Hospitals NHS Trust. But perhaps we shouldn’t go down that particular rabbit hole just yet.)

The change itself is simple enough – but when will it happen? If the abolition of the qualifying period is a measure to be included in the forthcoming Employment Rights Bill then it obviously won’t come into effect until the Bill has been passed – well into next year. The Government is committed to introducing the Bill within 100 days but it will take a good few months for such a large Bill to make its way through Parliament.  

But the change could happen more quickly than that.

The qualifying period is found in S.108(1) of the Employment Rights Act 1996. Under S.209 of the Act ministers have the power to “vary or exclude” the operation of that provision by Order.  So, in 1999 the qualifying period was reduced from two years to one year and then in 2012 it was put back up to two years. Neither change required an Act of Parliament – just a Statutory Instrument approved by Parliament. If the Government wanted to, it could remove the unfair dismissal qualifying period almost immediately. Indeed there is an argument for acting quickly. It isn’t necessarily a good idea to give employers lengthy notice that they are about to lose the right to dismiss – with impunity – employees with less than two years’ service. You may cause a rush! 

But what might prevent a quick and clean removal of the qualifying period is the question of probation periods. The background notes to the Kings Speech say: “We will continue to ensure employers can operate probationary periods to assess new hires”. That was also a point emphasised in “Labour’s Plan to Make Work Pay” What exactly does it mean?

If there were no qualifying period for unfair dismissal I would expect case law to develop setting out standards of fairness in the operation of probationary periods and dealing with when an employer can reasonably decide that an employee should not be confirmed in the post. That would take some years however and the Government are clearly suggesting that they will do something more proactive than just allowing case law to develop. Perhaps there will be a code of practice? Tribunals will have to then take that into account when deciding whether an employee who has failed probation has been fairly dismissed or not. Alternatively the Government could legislate to provide for a different test of reasonableness when dismissing an employee during probation. But if that is the plan then the abolition of the qualifying period will need to wait until the Bill is passed and will only come into force sometime next year. The Government might also choose to formally abolish the qualifying period by repealing S.108 altogether. That would mean that any subsequent Government would not be able to just reintroduce it with a Statutory Instrument, but would have to take the time and trouble to amend the Employment Rights Act all over again.

We should find out soon just how fast the Government is prepared to move in making the changes it is proposing. But my guess would be that the two year qualifying period will be sticking around for a good few months yet.

…

Now that I’ve said that, we’ll probably see a statutory instrument within days. Just you watch!

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The Future of Agency Workers

Posted on July 8, 2024 by Darren Newman

Labour’s manifesto promised that the new Government  will introduce legislation on employment law within 100 days. I’m not sure if the clock is ticking yet. Did they mean 100 days from the election or 100 days from the King’s Speech on 17 July? Let’s just say the deadline is around the end of October and not worry too much about counting the days.

In this post I want to look at an area that I don’t think has been fully addressed in Labour’s key policy document on employment law – Labour’s Plan to Make Work Pay. That is the issue of agency workers. 

An agency worker is someone in a triangular employment relationship. An end user hires an agency to provide them with a worker on a temporary basis. The worker has no direct contract with the end user but does have a contract with the agency. Agency workers have specific rights under, for example,  the Working Time Regulations and the Agency Worker Regulations. They also enjoy a range of other rights including protection from discrimination and harassment and entitlement to the National Minimum Wage. In most cases, however, they are not employees and so do not have protection against unfair dismissal. They are usually engaged by the agency on the basis that they may be offered work with various clients, but there is no obligation on the agency to find them an assignment. So if an end user no longer wants them, they can find themselves with no work to do and no right to be paid anything even though they remain ‘on the books’.

With some exceptions, agency workers are not employees. The triangular nature of their work (their work is controlled by the end user, but they are paid by the agency) means that neither their relationship with the end user nor the agency is one of employer-employee. The case law has wobbled on this issue in the past but for a good few years now this has been the accepted position. Even agency workers who have been engaged on the same assignment for months or years will not gain employment status as a result, provided the arrangement with the agency is genuine and not a sham.

So what happens to agency workers under Labour’s plans? Curiously, ‘Labour’s Plan to Make Work Pay’ only mentions them once – in the context of repealing the Regulations introduced when Boris Johnson was Prime Minister that allowed them to be used to replace strikers. Since the High Court ruled that those Regulations were unlawful however, I don’t think that policy makes much sense. The Regulations have already been ‘quashed’ (very pleasing word). The last Government was consulting on having them reintroduced but clearly that will not now happen. 

But the position of agency workers will certainly be affected by the proposals that the Government is committed to making. For example, one of the first things the Government is likely to do is abolish the qualifying period for unfair dismissal (this can be done by Regulation so there is not need to wait for an Act of Parliament to make the change). That will certainly make some employers feel more nervous about recruiting untested new staff. One response employers might have is to hire someone as an agency worker first and confirm them as an employee when they are confident that they will be a good fit. If it doesn’t work out, they can end the assignment after 6 months or so and the agency worker will not be able to claim unfair dismissal. Would that work?

Well, the Government is also proposing to move to a ‘single status of worker’. So that would imply that agency workers – unless there was an exception carved out for them – would qualify for the same rights as everyone else and would be able to claim unfair dismissal after all. 

But who would they claim against? They do not have a contract with the end user – they have a contract with the agency. So it is difficult to see how the ending of an agency work assignment could count as a dismissal by the end user. Would they have been dismissed by the agency? Well the agency would presumably say they have not been dismissed at all. Their contract with the agency is still in place. – they just don’t have an assignment for them at the moment and they can stay on the books until one comes up. 

But the Government is also pledging to ban ‘exploitative zero hours contracts’ – would that include situations like this one? Workers would be entitled to a contract based on the average of their previous 12 weeks of work. Would that apply to agency workers? How could it? It’s all very tricky.

None of this is a criticism of the manifesto. The proposals that Labour made were actually very detailed and precise by the standards of political parties setting out their policies before an election. But as the Government translates its political policies into actual legislation, these issues will need to be considered and dealt with.  This is just one area among many where a lot of work will have to be done in working out the detail. Given the timetable Labour set itself, and the sheer scale of what else is being proposed, they will have to move quickly. 

Over the past 14 years we have become used to modest incremental changes in employment law being introduced at a snail’s pace. The 2019 Conservative manifesto promised to introduce carer’s leave and all that amounted to was one week of unpaid leave that was eventually introduced four years later. Frankly it’s been a dull few years as far as employment law goes. I just can’t emphasise enough that things are about to change. 

Strap in. 

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Labour’s Plans for Employment Law – Other Stuff

Posted on June 12, 2024 by Darren Newman

I’ve now written three posts setting out Labour’s plans for employment law set out in its document “Labour’s Plans to Make Work Pay”. I’ve looked at trade union law, individual employment rights and equality and family-related issues. Ahead of the manifesto publication tomorrow (and I’m very much assuming that we won’t see any backtracking on what Labour is proposing) I wanted to round off the series with proposals that I overlooked or which didn’t easily fit into one of those three posts, but which are still important from an employment law perspective.

So what did I miss?

Third-party harassment

In my post looking at Labour’s equality law proposals I missed its position on third-party harassment. This is where an employee is subjected to harassment at work by someone other than a fellow employee – such as a customer, client or member of the public. The current position (and this has fluctuated over the years) is that an employer is not liable for harassment of its employees carried out by third parties. The current government supported a private members bill which became the Worker Protection (Amendment of Equality Act 2010) Act 2023 which initially extended liability for third-party harassment unless the employer had taken all reasonable steps to prevent it. But following back-bench opposition the Bill was watered down in the House of Lords and that provision was removed. Labour say they will “require employers to create an maintain workplaces and working conditions free from harassment, including by third parties”. I take that to mean that some form of liability for third-party harassment will be imposed – although you could also read that sentence as merely referring to an extension of the 2023 Act’s duty to take reasonable steps to prevent sexual harassment. We shall see.

Minimum wage

The introduction of the National Minimum Wage in the first term of Tony Blair’s administration has to count as Labour’s most successful employment law reform. It was initially opposed by the Conservatives, but by the time David Cameron became Prime Minister it was simply accepted as an established feature of work in the UK. 

One way in which Labour ensured the wide acceptance of the minimum wage was the creation of the Low Pay Commission which was tasked with making recommendations as to what the level of the minimum wage should be. It makes those recommendations based on the remit given to it by the Government. So at first Labour was very cautious about the level of the minimum wage and the remit stressed the importance of setting the NMW at a level that did not threaten jobs. It was George Osborne as Chancellor who changed the remit to ask the Commission to move towards a rate based on median earnings and in 2019 the remit was set so that workers aged 21 or over should enjoy a Minimum Wage of two thirds of median earnings by 2024, taking into account economic conditions.

Labour proposes to change the remit so that “alongside media wages and economic conditions, the minimum wage will for the first time reflect the need for pay to take into account the cost of living”. This is obviously aimed at moving the rate of the minimum wage closer to the “Real Living Wage” set by the Living Wage Foundation. It has to be said that the gap between the Minimum Wage for those 21 and over (currently £11.44) is not too far short of the real living wage – at least outside London – of £12. So this change does not seem very dramatic. Whether the remit would survive an economic shock leading to a significant rise in the cost of living and a return of high inflation is of course another matter. 

A change to the Low Pay Commission’s remit does not require legislation so it can be implemented very easily. Labour also proposes however to “remove the discriminatory age bands to ensure that every adult worker benefits”. There are currently three minimum wage rates. Those aged 16-17 are entitled to £6.40 per hour, those aged 18-20 get £8.60 and for those aged 21 and over the rate is £11.44. So presumably Labour could paln to keep the 16-17 year old rate, but abolish the rate for 18-20 year olds. That is an easy step to take and can be done by Regulation. It is not clear from the document whether the Apprentice rate of £6.40 will remain given that many of those on apprenticeships are 18 or over. 

Labour also says that they will ban unpaid internships “except when they are part of an education or training course”. I’m not sure what that law would look like. If interns are doing work for the employer – if they are ‘workers – then they are likely to be entitled to the minimum wage in any event. Defining what an internship actually is – and distinguishing it from a work experience placement – might prove tricky. 

Adult social care

The Labour Party manifesto for 2017 promised to “roll out sectoral collective bargaining”. What that meant was that  collective agreements reached at a sectoral level (for example, in the chemical industry or the retail sector) would automatically apply to all employers operating within that sector. That is a system common in Europe but radically different from the UK approach which is to allow individual employers to make their own arrangements for pay – either with or without input from unions.

In ‘Labour’s Plans to Make Work Pay’ the Labour Party does not abandon this aim altogether – stressing the importance of collective bargaining in in helping companies and workers ‘adapt to the new world of work’. But its specific policy proposal is to start with a “Fair Pay Agreement” in the adult social care sector.  The idea would be that a new negotiating body would be set up for the sector and that agreements reached through that body would then be applied to the individual employers within it. When this is up and working Labour will then look at seeing what other sectors would benefit from the same approach. 

From a legal point of view this is quite straightforward. The idea that minimum terms and conditions would apply in particular sectors was a feature of UK employment law for much of the Twentieth Century up until the final abolition of wages councils under the Thatcher governments.  Adult social care seems a good sector to start with because it is easy to define – being regulated by the Care Quality Commission – and is characterised by low pay and a large number of small employers with little scope for union recognition at a company level. Setting up the system and reaching an agreement seems to be the key challenge and I cannot see any prospect that Labour would be in a position to roll out the arrangement to other sectors within its first term. If the idea catches on, however, it could herald a serious shift in our system of industrial relations.

Enforcement

Everyone seems to agree that employment law should have a ‘single enforcement body’ – it was even pledged in the 2019 Conservative manifesto (page 39). Labour proposes to st up a body “to enforce workers’ rights, including strong powers to inspect workplaces and take action against exploitation”. Labour says that it will have “ the powers it needs to undertake targeted and proactive enforcement work and bring civil proceedings upholding employment rights”. The crucal question here is what resources this body will have. If it is to conduct workplace inspections, how many inspectors will it be able to employ? How many cases will it be able to bring and what rights will it be able to enforce? Will it be limited to minimum wage violations or will it also be able to enforce rest breaks and holiday entitlement? Unlike other employment-law proposals Labour is making, this has direct public spending implications. I will not get too excited about this new body until I see how big its budget is. 

Procurement

Labour pledges to bring about the ‘biggest wave of insourcing of public services in a generation’. This is not really an employment law measure and public sector procurement is a subject all of its own. However, Labour will reintroduce the ‘two tier’ code of practice that was scrapped by the Coalition Government in 2010. The Code was aimed at closing what was seen as a loophole in the TUPE protection that governed services that were contracted out to the private sector. Employees who were transferred would have their terms and conditions protected, but if new employees were recruited who had not been employed prior to TUPE the employer was free to pay them less than the transferred staff. Over time this would erode the pay and conditions of employees in contracted out services and so a Code of Practice was introduced requiring public bodies to insist that contractors did not employ people to work ‘alongside’ those who had transferred across on less favourable terms and conditions. It was frankly a rather vague requirement – we never quite figured out what ‘alongside’ meant – and not easily enforced.  Labour say they will ‘strengthen’ the Code rather than just reintroduce it, so it will be interesting to see what that means.

Enough to be going on with?

I think I’ll stop there. There are other bits and pieces that I haven’t gone into and Im sure I’ve missed out proposals that will turn out to be quite important. 

The point is this: there is a lot of new employment law coming our way. Unless the polls are wrong to such an extent that the whole polling industry will be plunged into an existential crisis, the next five years will see fundamental changes to the relationship between employers, workers and trade unions. Personally, I would be surprised if Labour managed to get through everything set out in their policy document in five years. So one of the things I will be watching for in the manifesto is whether it gives any clues as to how they will prioritise the work. Out of the 40 or so specific measures that they have committed to, what are they key things that they will move on in the first year? 

My guess – and I have no inside knowledge on this – is that a Trade Union Bill repealing the Trade Union Act 2016 and the Strike (Minimum Service Levels) Act 2023 could be introduced really quite quickly. The proposals on union recognition and industrial action are quite complex and would take some time to develop, but perhaps the Bill would create regulation-making powers so that they could be addressed separately?  Meanwhile the Government could start consulting on issues like zero-hours contracts and fire and rehire while they worked up some specific proposals. Abolishing the qualifying period for unfair dismissal can be done by Regulation – but introducing specific provisions on probation periods would have to be done in an Act of Parliament wand would take up Parliamentary time.

The last about Government was elected on 1 May 1997. The National Minimum Wage Act received Royal Assent on 31 July 1998. The statutory union recognition procedure and most other individual employment rights such as the right to be accompanied and protection against dismissal for striking workers were introduced by the Employment Relations Act 1999 which was given Royal Assent in July of that year – more than two years after the election. This sort of thing takes time – it would be a huge mistake to get fixated on getting things done inside the first 100 days or other such arbitrary timetable.

In any event, I should try not to get ahead of myself. No votes have been cast yet. But while the press might talk about Labour’s ‘watered down’ proposals on workers’ rights, I think those of us who work in this area need to appreciate the scale of the change that is (probably) about to come – albeit not as quickly as some would like.

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