Employment rights – still blocked by law

The Employment Rights Bill, published on 10 October, does not repeal all the anti-union acts enforced by Thatcher and her successors, Tory and Labour. Those repressive laws are still in force.

Legal restraints on trade union action are still in place. And several measures won’t come in for a couple of years, giving employers time to work round them.

Banned

Solidarity is still illegal: secondary action is still banned. Industrial relations law is still set by the employer, for the employer.

The state’s power is – unsurprisingly – still deployed for the benefit of the employing class. Injunctions can still be served on trade unions, but not on the employer.

“The bill ties itself up in knots trying to avoid what was promised.”

Sharon Graham, general secretary of Unite, said, “The bill still ties itself up in knots trying to avoid what was promised. Failure to end fire and rehire and zero hours contracts once and for all will leave more holes than Swiss cheese that hostile employers will use.”

The bill fails to ban zero-hours contracts, headlining that it will end those which are “exploitative”. People on zero-hours contracts will get “guaranteed working hours if they want them”. And how freely will they be allowed to express what they want?

Claims

The bill claims to ban “fire and rehire”. That’s not quite the whole picture. Personnel professionals think that the previous government’s statutory code, combined with the new bill, will eventually end the practice.

But, because most of the reforms will not take effect before 2026, these practices may continue quite legally for two more years. And that gives employers plenty of time – and a precise deadline – to do whatever they want beforehand.

Rogue employers

In any case, actions by rogue employers are often outside existing laws and codes. Companies like P&O Ferries will still be allowed to fire and rehire. Under the bill, a company can still dismiss workers without consulting their union, it can legally sack a unionised body of workers, pay the statutory compensation for unfair dismissal – as P&O did – and recruit workers at greatly reduced wages, far below those prescribed by collective agreements.

There will be no duty on the employer to comply with collective agreements before fire and rehire. Companies will still be able to refuse to reinstate an unfairly dismissed worker. The bill gives no powers to grant injunctions to restrain companies from wilfully breaking the law.

Force

Preventing practices like fire and rehire comes down to how workers can force rogue employers to comply. Resort to law is very rarely a good strategy for unions in those situations – and then only when backed by the threat or reality of action.

The bill does nothing to tilt the balance away from the employer when it comes to recognition disputes. Companies like Amazon will still be allowed to use all manner of dirty tricks to frustrate workers who wish to join a union and to organise in defence of wages and conditions.

‘The bill fails to give rights for workers to access trade unions for pay bargaining.’

The bill fails to give workers meaningful rights to access trade unions for pay bargaining. It says that a union can ask an employer to enter an access agreement (as is already permitted). If the employer refuses, the union can complain to the Central Arbitration Committee, which can propose an access arrangement. However, if the employer does not in practice accept the proposed arrangement, the bill does nothing to make the employer comply.

Pledge

The pledge made just before the election – to secure workplace balloting – has been dropped. The complicated and onerous requirements for industrial action are still in place – identifying the numbers involved, their workplaces and their categories. The bill also retains the complicated requirements to give notice of calling a ballot for industrial action.

The bill does not support the restoration of sector-wide collective bargaining in all parts of the economy. Significantly, the government is not restoring collective bargaining in the civil service.

Much of the bill is about individual employment rights. For example, flexible working will be made the default for all, unless the employer can show it’s not feasible. This bill’s obligations on the employer are very much voluntary obligations – employers are quite free to choose whether they obey the law. By contrast, our trade unions are still shackled.