By Andy Yorke
Labour claims its Employment Rights Bill has followed through on election promises to create ‘the biggest upgrade to employment rights for a generation’, banning ‘exploitative’ zero hours contracts and fire-and-rehire, while ensuring full rights at work ‘from day one’. The TUC hails it as a ‘massive boost to workers’ rights’.
Meanwhile the foam-flecked Daily Mail rants that this ‘French-style workers’ rights revolution’ will cost businesses billions, and the Federation of Small Businesses moans about ‘chaotic’ roll-out and hiked burdens on its members. Tory and Reform MPs voted against the bill at its second reading. So this must be a win, right?
The ERB has significantly increased workers’ individual rights. This contrasts with the 1997–2010 New Labour governments, which kept the Tories’ anti-union laws intact. But overall the approach is the same: partnership with business. Already the bill has gone through several stages of being watered down after ‘consultation’ with employers.
Abolishing the 2016 and 2023 anti-union laws is a win, ending undemocratic ballot thresholds and minimum service levels during public sector strikes. The threat of the Certification Officer opening investigations into a trade union after a ‘complaint by a third party’ and imposition of heavy fines will also be revoked.
Anti-blacklisting laws are to be strengthened for the digital age. The ERB also improves unions’ rights of access to workplaces, and union recognition, reps’ rights to facility time, particularly for equality reps.
While all that is welcome, it will not lift the huge weight of the anti-union laws from workers’ ability to strike, removing one set of handcuffs but keeping all the other shackles in place. The trade union leaders have gone silent on this. In reality they accept the post-Thatcher order of cooling off periods, postal ballots and restrictions on political or secondary strikes.
Spin versus small print
Labour’s ‘Plan to Make Work Pay’ was focused on ‘rights from day one’. However, the bill falls far short of that. Some rights will be from ‘day one’: paternity pay, flexible working, unpaid parental leave and a new right to bereavement leave.
Statutory Sick Pay will also be available to those who earn less than £123 per week, a real gain for low paid and part-time workers. At present workers have to wait two years to be able to claim unfair dismissal, affecting a third of all workers. This delay will be eliminated.
But Labour is promoting a legal probation period of nine months during which a ‘light touch’ dismissal process will hold. As one employment lawyer commented, this amounts to ‘bringing a day one right in through the front door and smuggling it out through the back door’.
This snakes and ladders approach undermines the bill’s other headline goals of ending ‘exploitative’ zero hours contracts, affecting over a million workers, and worst of all fire and rehire.
Employers will have to give workers guaranteed hours reflecting their worktime over a 12-week reference period. But this just gives an incentive for bosses simply to minimise hours for this period. Also workers will have to go to tribunal to enforce this and other new laws restricting the bosses’ right to cancel, curtail or move shifts at short notice.
Fire and rehire reform is the biggest climbdown. In 2021, 9% of workers faced these tactics. Specific measures in the ERB and other recent legislation for seafarers would block another 2022 P&O Ferries mass sacking.
But generally a business would still be able to fire staff refusing worse contracts if it can show ‘evidence of financial difficulties that were affecting, or were likely to affect, their viability’. By this measure, the courts would back the bosses, just as they did in the infamous 2021 dispute where British Gas sacked hundreds of engineers after a 44-day strike to restore the company’s profitability.
For the rest of the ERB, the devil will be in the detail, which will be ‘negotiated’ with the employers over the next two years. Much will be left for consultation and piecemeal secondary legislation. So this bill could be even further watered down. The Agency for Fair Work, meant to be a clearing house for all these rights, will not be independent, but under the control of the Business Secretary.
Break Labour’s partnership with business
Labour claims the bill will cost companies £5bn but have a positive impact on productivity, growth and business. Unfortunately this is often not just spin; it does actually benefit big business, even if other sectors are put out.
The most realistic murmurings come from the legal sector. The Chambers group is ‘not expecting many of these changes to take effect quickly’ and ‘many of the amendments could take years to be enacted’. One employment solicitor boasted workers ‘will need to wait near 1,000 days to enjoy the new rights’.
Union activists and reps need to organise against any further concessions. That fight to change our unions’ stance goes beyond conference motions; it is part of educating and organising at the grassroots. The message socialists and militants need to emphasise is that real change—the abolition of all anti-union laws and implementation of the right to strike—will only come from mass action from below.
