Campaigning meets realities of governing
WITH Labour currently leading in the polls there has been renewed focus on its employment rights green paper, A New Deal for Working People.
Announced by Angela Rayner at the Labour party conference in September 2021, just a few months after the UK Government lifted final Covid restrictions in England, the New Deal promised in just 11 pages of text very significant changes to strengthen workers’ rights.
They included:
■ Getting rid of the difference in status between employees and workers and having one status of worker for all except the genuinely selfemployed;
■ All workers to have the same rights in relation to sick pay, holiday pay, parental leave, protection against unfair dismissal and discrimination;
■ Scrapping qualifying periods for certain rights with the right not to be unfairly dismissed, for sick pay, flexible working and parental leave becoming rights as of day one of employment;
■ Scrapping caps on compensation in unfair dismissal cases, extending the time period for bringing employment tribunal claims and making directors’ personally liable for compensation awarded against companies they are directors of;
■ Banning zero-hour contracts;
■ Banning the practice of “fire and rehire” – making people redundant and then re-engaging them on less favourable terms and conditions;
■ Introducing a right for workers to disconnect from work outside of working hours and not be contacted by their employer outside of working hours;
■ Review of the shared Parental Leave system to incentivise sharing of leave;
■ Repealing anti-trade union legislation including the Trade Union Act 2016; and
■ Requiring employers to create workplaces free from harassment.
This was a lot of change and Labour said it would introduce the new rights within 100 days of securing office.
Little surprise therefore that in recent months business groups such as the CBI have been lobbying Labour to soften its pledges.
New president of the CBI Rupert Soames was reported in the Financial Times in February as saying the stronger rights were “really good for people who are employed but really bad for people who are unemployed because companies are terrified to take them on.”
Some of the rights highlighted by
Editor SION BARRY 029 2024 3749 the Green Paper could definitely do with review in my opinion.
The shared parental leave provisions do not work, with a UK Government report in 2023 showing that only 5% of fathers have taken shared parental leave.
The differences in employment status are confusing and have involved a number of Supreme Court decisions to determine status with different outcomes on the facts. Pimlico Plumbers were determined not to be self-employed but to be workers, Deliveroo drivers were determined to be workers not selfemployed.
The right to disconnect, already introduced in other European countries such as France, seems to me to disregard the greater flexibility that many employees have enjoyed in recent years.
The ability to clock off at 3pm because the sun is shining and you want to hang out your washing/ take your dog for a walk/take your children to the park after school because you can make up the time later that evening or tomorrow is one of the few good things to come out of Covid.
However, the provisions could be drafted to provide that employees can opt out of the right to disconnect (working time regulations anyone?) and working hours could be defined in contracts along the lines of “an average of 35 hours a week to be worked between the core hours of 7am to 10pm at your discretion.
There’s always been a qualifying period to claim unfair dismissal although it’s varied over the years, as high as five years’ service for part time workers working less than 16 hours a week back in the 1990s and as low as six months.
Currently the qualifying period is two years and I usually advise employees that whilst their probationary period may only be three or six months, in practice it is a week or so short of the two-year period needed to qualify for unfair dismissal rights and redundancy pay.
The CBI president was right in my view that some employers will be deterred from taking on employees if there are day one unfair dismissal rights, but I also think that a shorter period than the current two years walesonline.co.uk/business might strike a better balance between employer and employee.
The cap on unfair dismissal awards is currently a year’s gross pay or £115,115. With the average award for unfair dismissal in 2022/2023 being £11,914 scrapping the cap is not going to affect many people and in my view the greatest beneficiaries might be the most highly paid. I’ve lost count of the number of senior executives on packages in excess of £250,000 who have been surprised to discover that even the maximum unfair dismissal award is not going to represent many months of their earnings.
Other employment lawyers will have differing opinions on the possible impact of the changes and which areas are most in need of review.
Businesses definitely have strong views on this which is why they have been lobbying.
And it seems the lobbying is working.
In February 2024 in her speech to the Labour party business conference shadow Chancellor Rachel Reeves stated:“We understand British business. We are on the side of British business. We will back British business, every day, and every chance we get.”
A revised version of the New Deal was shared with unions last week to put the policies “into a form that our candidates can campaign on.”
Labour has now promised a full consultation with business and other groups and will publish draft legislative proposals within 100 days if it wins the next general election rather than pass legislation within that time frame.
Contractual probationary periods before rights of unfair dismissal are to be permitted, likely I think to bring us back to a minimum six month qualifying period which could be capable of further extension.
Rather than an outright ban on zero hours contracts, workers are to have the right to a contract that reflects their recent regular work pattern.
The leader of Unite, Sharon Graham, had this to say last week about the changes to the New Deal: “This new Labour document on the New Deal is a row back on a row back.
“It is totally unrecognisable from the original proposals produced with the unions. Unrecognisable.
“Workers will see through this and mark this retreat after retreat as a betrayal.”
Campaigning it seems thing, governing another.
■ Bethan Darwin is a partner with law firm Thompson Darwin. is one