Breaking News! Professional bargainers bargain. After five hours of intensive negotiations (or a constructive policy formulation or surround bollocking – depending whom you ask) on Tuesday, Labour and the affiliated trade unions have agreed to reconvene in three weeks’ time so Labour can present a new draft of its New Deal for Working People, with the same language as that which was agreed at the National Policy Forum in July and then put into conference motions in October.
This followed press coverage that was a tad sensationalist and often wrong. For instance the misconception that probation periods are a legal category that are exempt from statutory regulation (as the legal equivalent of a germ forcefield they very much do not) and a general misunderstanding about how dismissal works in the UK. Currently, (though there are some exceptions) an employee can only legally challenge a dismissal as unfair after two years of employment. Meaning that employers can dismiss people unfairly without any threat of challenge if they do it within two years.
Labour’s proposal was always, and remains, such that workers would be able to lodge a claim regardless of how soon they were dismissed. A tribunal could still rule that the dismissal was fair, and an employer may well use a worker’s failure to meet conditions or targets that their contract outlined would be in their probation period as evidence for why the dismissal was fair. However, this probation period does not have legal force in and of itself. What may happen is eventually enough case law is built up that gives a clear steer on the weight of apparent failure to perform during probationary periods as grounds for dismissal. This is often not what has been reported; and is one example of how this reporting is often not informative and can be pernicious.
Headline grabbing stories of Labour u-turning ignore the fact that not all u-turns are created equal. Consequently, not banning fire and rehire is treated the same as not having a statutory right to switch off when they are not the same in significance for industrial relations.
This reporting, done by political journalists, presumably out of instinct, often seemed to favour Westminster style reporting, with he said-she said personality politics trumping genuine analysis. Unfortunately, with the exception of a Twitter post by Sharon Graham, “the unions” weren’t particularly talkative. This means that said reporting tends to frame Labour as the protagonist, not the trade unions pushing for reform – intrepid motley band of bureaucrats that they are – while not analysing if claims such as the impracticality of banning zero-hour contracts are accurate or interrogating if elected trade union officials are playing to their activist base when they issue public statements. Equally, the changes to trade union rights proposed by Labour, which are harder to distil into headlines, do not receive the same attention, even though these could make a significant difference to people’s lives.
What this episode does show is the trade union consciousness in action, where deals are ironed out behind closed doors and publicly denounced enemies quickly become valued and supportive partners. Accompanying this is a culture of omertas (“discipline”) befitting a movement that in part grew out of secret societies and the influential milieu of organised religion (the archaic resonance of which can still be found in the use of the nouns brothers & sisters, stewards, lay reps, and in the National Union of Journalists’ case “chapels”), and originally had to operate in secret due to the Combination Acts.
The culture of organised labour, shaped by centuries of collective experience, does not just affect how deals are reached, but also what are seen as red lines. Some reporting on Labour’s proposed reforms has stated that Fair Pay Agreements (FPAs) were originally envisaged for every sector. Therefore, Labour changing the wording between the 2021 document and the 2023 NPF document to state that FPAs will not be implemented where ‘existing collective bargaining arrangements…are already working well and supported by trade unions’’ is solely an attempt from Labour to renege on FPAs.
In reality, unions tend to be particularly possessive about their hard won traditional bargaining practices and pushed for this exception (though not the wider reduction of FPAs to a trial in social care) to be included. Another spectre haunting organised labour is the prospect of unemployment, and why, as early as January, some unions were receptive to the argument that fire and rehire would, in extreme instances, be preferable to mass redundancies. Thus, when it looked as though Labour were planning further changes to its workers’ rights reforms the solution was a private chat; at which the outcome was to have another private chat in the near future.
This is not to say that Labour will not backtrack further on its reforms. Starmer’s Labour has a proclivity for u-turns and it is clear several “senior Labour sources” appear to hold the New Deal with the same contempt they did for the £28bn green transition fund. The fact the New Deal is popular with Tory voters is not enough to assuage said contempt.
Indeed, one thing rendering the New Deal vulnerable has been the absence of a clear campaign document for it to be promoted with, and unions are understandably concerned about what could happen in a consultation period – similar has happened before. However, consultation will not necessarily result in watering-down. When the Conservatives say they’ll consult on new anti-union legislation (such as the recent Minimum Service Levels legislation) it’s widely accepted this is just lip service.
Ultimately, no one knows anything and so much of any negotiation is based on assurances, and trade unions exist to make deals; as Sharon Graham said after Tuesday’s meeting: “I do deals with employers every day of my life”. Even if the package of reforms remains as agreed at the NPF, the real question would be about enforcement and practicalities. There are parts of the ever-broadening church of Labour that don’t like the New Deal, and the party has yet to embrace it in the way Scottish Labour did in Rutherglen.
The New Deal For Working People will remain contested territory even after legislation is passed as the next point of divergence will be what should be the next legislation, for instance the TUC have put into their draft AI bill a statutory right to switch off, and UNISON continue to advocate for a national care service (which could render a Fair Pay Agreement in the care sector redundant).
However, the noise and the subsequent misleading reporting is likely to remain because any news of the reforms being watered down is greeted by people wanting to push a betrayal narrative: those genuinely wanting it watered down, and those who do not trust Starmer. These groups encompass a critical mass of the Labour Party, so there will always be a willing audience for journalism that seeks to garner clicks rather than inform.