Labourism once again stalks the halls of Westminster. On the 10th of October, Labour presented its Employment Rights Bill before Parliament;. Its media spin emphasised the individual benefits that workers will now enjoy, such as day one statutory rights and the right to be given consistent hours for those on irregular hours contracts. The Bill is an attempt to do something historic; it is positively prolix in places and has many gaps, the content of which will be filled by the outcome of future consultations (the documents for which were published on the 21st of October). Although some of the proposals are expected to become law by the middle of next year, many are not expected until the Autumn of 2026.
The Bill’s relatively fragmented form reflects that one hundred days was always going to be a tight deadline, and it is unsurprising that not every part of the Bill could be ironed out in advance; the question for the future will be was this deadline worth it to ensure that impetus was not taken out of the process. Indeed, many of the Bill’s flaws draw attention to the inadequacies of the legal apparatus of UK labour law. For instance, the Bill’s failure to extend the employment tribunal limitations period from three months to six (though Labour are expected to fulfill this manifesto commitment) highlights just how short three months is.
Equally, Unite’s initial criticism that the legislation does not do enough to deter employers from a malicious use of fire and rehire, as done by ‘valued’ investors in the UK economy, P&O, demonstrates the feeble nature of the current cap on tribunal awards, hence Labour proposing, via consultation, to potentially scrap the cap and give workers the option to apply for interim relief. Moreover, the Bill’s reliance on much of its provisions being filled in by regulations and being at the whim of the relevant Secretary of State, meaning that Parliament can accept or reject amendments but not scrutinise them and that many of the legislative changes could easily be undone by a different government, reflects the power held by a government with a well-whipped large majority. Sometimes size matters.
While trumpeting the Bill’s impact on individual workers, Labour has drawn less attention to its provisions concerning trade union legislation, presumably for fear of criticism from the usual suspects. From a trade union perspective the Bill is a positive first step, but only a first step. On this, there is broad consensus across the trade union movement, regardless of whether it is expressed supportively or more sceptically. While business lobby groups may obsess over the length of probation periods (where the reasons for dismissal will be much more important than the length, size isn’t always everything after all) or the reference period for zero hours contracts, trade unions will be more concerned with the extent to which the legislation does, or does not, empower them.
On which note, Labour is evidently genuinely committed to trade union rights: a government does not repeal anti-union legislation, try to make it easier for unions to gain recognition and access to workplaces, and neuter the Certification Officer just as a going concern. However, it is not clear that the proposed reform to the statutory recognition process goes far enough, or that the proposed access agreements will be adequate. It is possible that:
1) While Labour recognises that trade unions are a good thing; they do not have a resolute political theory that underpins why (partly a consequence of the lack of trade unionists in Parliament).
And
2) Consequently the resolve and capability to rebalance labour power may not quite be present in the current Parliamentary Labour Party, let alone the Government; though if it polls well, who knows.
However, the early signs are encouraging. In its consultation document on changing industrial relations, Labour has proposed extending the industrial action mandate to a year and reducing the obligations for unions to repudiate unofficial action or else have their assets sequestered. In conjunction with the consultation documents, the Next Steps document that was released with the Bill is interesting. Although it appears extremely rushed, with some parts essentially just lifted from Labour’s manifesto (including sections referencing what is already in the initial legislation). A generous reading of it, which on current evidence Labour has earnt, is ‘this is the stuff we want to do but didn’t have time to put in the Bill just now’. Hence, the statement in the document that other provisions can be inserted into the legislation before it is finally passed, as many of the outcomes of the consultations due to close on the 12nd of December will be. As far as union legislation is concerned, the document states:
‘Alongside the bill, the government will consult to modernise the legislative framework that underpins our trade unions. We will repeal legislation that has led to an overly conflictual approach to industrial relations and contributed to the worst disruption in decades. However, in places this will leave us with a legal framework that is over 3 decades old, so we will seek views on several measures to update and reform this framework to hardwire negotiation, engagement and dispute resolution.’
This was the clearest statement yet from Labour that the labour legislation implemented between 1980 and 1992 is not fit for purpose, and that some of it will be changed. This is the great hope of trade unions and why they have reacted relatively positively to the Bill, despite all its imperfections. Thus far, Labour have tentatively addressed this in its consultation document on industrial relations, though none of these measures explicitly undo the industrial relations framework enshrined in TULRCA they do address some its impact, and the document states that once the Employment Rights Bill has received Royal Assent, Labour will ‘consult further on modernising the trade union landscape’. There is a clear direction of travel in favour of labour, the only outstanding question is when does Labour decide it has run out of road. This may eventually come to little, but trade unions do not have alternative political avenues, so will have to make the most of what they can with Labour.
As a result of the Bill being brought forwards, the battle for a New Deal for Working People has now shifted terrain. Whereas at its inception the challenge was to steer it through the internal structures of the Labour Party and to the legislature, it is now to manoeuvre it through government bureaucracy. This means a lot of schmoozing of government ministers, diplomacy with the business lobby, many consultation meetings and impact assessments (which some employers are already trying to manipulate).
On the one hand, trade unions should be adroit at navigating bureaucracy, given it is inherent to their nature. On the other, they have to deal with lobbyists and the Whitehall civil service, which, while capable, is seldom the most creative or revolutionary of forces and often tilts towards technocratic orthodoxy. This disposition favours the employer, and trade unions will need to break the habits of a lifetime within the civil service to bring them onboard; or in other words, smashy smashy, breaky breaky.
Labour’s Employment Rights Bill is a sincere statement of intent, but not a guarantee of success. The ambition in the reforms should not be underestimated, it wants to transform the legal framework of employment and industrial relations and do so in less than three years, this has never happened at such a pace before in Britain, though the dry language accompanying the proposals belies the scale of the challenge. The concern will be that the technocratic language accompanying the legislation is reflective of a limitation of timidity. However, just as the Thatcher government’s ideological attacks on trade unions were couched in the language of protecting ordinary workers from ideological extremists, perhaps Labour’s unshackling of them could also be presented in the language of technocratic modernisation.