The Weekly paper of the New Communist Party of Britain
Week commencing 18th October 2024
The Weekly paper of the New Communist Party of Britain
Week commencing 18th October 2024
The Weekly paper of the New Communist Party of Britain
After months of speculation we can finally see that a mouse, rather than a rabbit, has been pulled out of the hat that contained the promised Employment Rights Bill.
One sign that the Bill was of no great threat to business came from Alex Hall-Chen, Principal Policy Advisor for Employment at the Institute of Directors, who said that: “Our research shows that there is appetite for some employment law reform within the business community. We welcome signs that government has taken on board concerns from business regarding the importance of probationary periods, as well as its commitment to consult meaningfully with business on the detail of the policies.”
The senior bosses’ union advisor went on to complain that “however, we remain concerned that these proposals are using a sledgehammer to crack a nut and will ultimately make it both riskier and more costly for businesses to employ staff at a time when business confidence is at its lowest point in two years”.
This is a comparatively mild criticism coming from a body which was a cheerleader for Margaret Thatcher. Another complaint was that the Bill offered no “measures to assist businesses, particularly Small and Medium-Sized Enterprises (SMEs), in coping with the additional costs which will arise from these reforms”, but the IoD hoped that the forthcoming Budget will assist “SMEs with higher costs resulting from changes to the Statutory Sick Pay entitlement”.
If that is all the IoD have to complain about it is clear that Labour Deputy Prime Minister Angela Rayner’s pious declaration that “The government is delivering the biggest upgrade to rights at work for a generation”, merely confirms that nothing was done during the Blair and Brown years.
The Confederation of British Industry was also pleased with Labour’s offering, claiming that “politicians and businesses have a shared goal in wanting to raise living standards through higher levels of growth underpinned by investment and increased productivity”. They welcomed the fact thar the bosses were allowed to veto any possibly troubling bits by adding that “The government deserves credit for its willingness to engage with businesses and unions on how to make a success of the Plan to Make Work Pay. It’s that willingness to work together that can ensure we find the right landing zone and improve living standards by avoiding the unintended consequences that businesses have warned against”.
The unions speak
The TUC General Secretary was even more optimistic, if not downright delusional by claiming that “whether it’s tackling the scourge of zero-hours contracts and fire and rehire, improving access to sick pay and parental leave, or clamping down on exploitation – this Bill highlights the government’s commitment to upgrade rights and protections for millions”.
Even the branding has been downgraded from “A New Deal for Working People” to “Plan to Make Work Pay”. That would make an appropriate slogan for a Victorian workhouse.
To make matters worse, there is going to be further consultation with bosses for another two years. So much for promising to legislate in the first hundred days of taking office.
The unions took a mixed view. Unite said the Bill was a step forward. But it condemned the failure to ban zero hours contracts and ‘fire and rehire’ and complained about watering down the right for workers to have access to trade unions.
Unite demands the return of collective bargaining arguing that higher wages boost the economy as workers spend rather than stashing it away in tax havens. It argues that restoring collective bargaining coverage to the same levels as 1996 would lead to a 2.8 per cent rise in GDP.
Shopworkers union USDAW was much more grateful. General Secretary Paddy Lillis said “USDAW is delighted to see this Labour Government deliver on their manifesto promise of bringing forward legislation to improve worker’s rights to help make work pay and employment more secure”.
He praised the legislation for its modest measures and even welcomed “action to tackle insecure work and one-sided flexibility with a ban on exploitative zero-hour contracts, an end to unscrupulous ‘fire and rehire’ tactics” despite it clearly doing nothing of the kind. Arise Sir Paddy.
Unison took a similarly uncritical view. GMB General Secretary Gary Smith declared that “This is a significant and groundbreaking first step to giving workers the rights they’ve been denied for so long”. He welcomed the “Fair Pay Agreements for carers, reinstating the School Support Staff Negotiating Body, repealing anti-union legislation and a raft of other rights for workers will make a huge difference to the lives of GMB members and are popular across the country”.
He made clear that “there is a long way to go and naively demands that “unions and workers are front and centre of the detailed discussions needed to deliver it”. He is going to be severely disappointed when his hopes that “the legislation must be watertight and without loopholes that could be used by those wanting to delay the rights workers so desperately need” are dashed.
Only on Monday the Prime Minister slapped down the Transport Secretary for calling for a boycott of P&O Ferries after they sacked hundreds of workers. This action was so blatant that even the then Tory made false promises about abolishing fire and rehire.
Even those unions known to have a backbone joined in the chorus of praise. Mike Lynch, RMT’s General Secretary said “this is the most significant set of reforms in workers’ rights that we’ve seen in decades and is a far cry away from the previous Tory government’s attempts to suppress the aspirations of working people”.
Matt Wrack, the Fire Brigades Union general secretary, even claimed credit for the promised measures, saying “this very significant extension of workers’ rights is a huge victory for the FBU and other unions that have been at the forefront of campaigning to ensure that Labour’s New Deal for Working People is fully delivered”.
The lawyers’ respond
Keith Ewing and Lord John Hendy KC cast their lawyerly eyes over the measure and were more critical. They point out most of Starmer’s original pledges have been dropped and that Britain will still not meet many International Labour Organisation standards. They welcome the fact that ballot thresholds introduced in 2016 are abolished and the simple majority vote in favour restored. Not surprisingly some people have described the Bill as having more holes than a Swiss cheese. More holes than a string vest, and Rab C Nesbitt’s at that would be a better metaphor.
The Details and Absences
The Bill promises workers’ rights from “Day one”, which will allow new employees to claim unfair dismissal if sacked. However, there is a loophole as there will be a statutory probationary period for new hires, during which time bosses will be able to terminate employment without going through a full process. It has been suggested that period will be nine months, which is much longer than most probations at present.
Rights to paternity leave and unpaid parental leave are on offer, but these seem only modest improvements. Rights to Statutory Sick Pay are amended under the Bill, removing the current three-day waiting period making SSP payable from the first day of absence, and the present Lower Earnings Limit (LEL) for qualifying for SSP, currently £123 per week, will be removed.
The Government claims it is strengthening the right to “flexible” working hours, but it still remains a right to politely request flexitime and bosses will still have a right to decline, so it looks like a change without a difference. It looks as if the only difference will be that bosses have to explain a refusal in more detail.
Plans to end zero-hour contracts outright seem to have been effectively ditched. The Bill introduces a new right to a guaranteed-hours contract for those who work regular hours over a 12-week reference period, with provision for subsequent reference review periods if hours become regular over a longer period of time. But it also allows workers who want to remain on zero-hours contracts the ability to do so – leaving vulnerable workers open to coercion.
The Bill also provides for workers on zero- and low-hours contracts to be given ‘reasonable notice’ about changes in shifts or working time, with compensation for shifts cancelled or curtailed at short notice. But zero-hours contracts are most common in unorganised sectors, which makes it difficult to enforce any positive legal rights.
In theory the Bill offers to end the fire-and-rehire question by adding it to the list of reasons of offences constituting an ‘automatic’ unfair dismissal. This is effectively negated by saying that fire and hire is acceptable when bosses claim there is no alternative due to dire financial circumstances which would affect the viability of the business as a going concern. This point has always been used as an excuse in such cases, so it’s essentially no change. Any clever accountant can prove that a profitable business is on the verge of collapse.
On the question of redundancy, the obligation to consult with workers has been slightly improved by lowering the threshold, which currently stands at 20, meaning even smaller businesses planning redundancies will need to follow a more structured consultation process.
A great advance but consultation is meaningless without union representation.
While pregnant women and new parents will have more protections against dismissal long after returning to work there are plenty of “specific circumstances” for employers to exploit.
There’s increased protection from third party harassment and strengthening the obligations on employers to prevent sexual harassment at work though the precise wording is that employers are required to take “all reasonable steps” to prevent sexual harassment, rather than “reasonable steps” as currently provided means that successful actions will still depend on negotiations rather than the strict letter of the law.
Large employers with over 250 staff will be forced rather than advised to produce action plans to address their gender pay gaps and to support employees through the menopause.
On pay questions the Bill will include powers to create a Fair Pay Agreement for the adult social care sector and bring back the School Support Staff Negotiating Body, which will assist some low-paid workers. More seriously this is a sign that all other workers will not be brought back into collective bargaining.
The existing National Minimum Wage age bands are to be abolished but the hourly rate will still not be tied to the level of inflation. While the Low Pay Commission is now required to take into account the cost of living when setting the rate that is largely meaningless as it has, in practice, always done so in the past.
Another modest change is reinstating the two-tier code for public sector contracts, which is supposed to ensure that employees on outsourced contracts are offered terms and conditions no less favourable to those transferred from the public sector. Again, this has been a legal obligation in theory.
The ineffective and unused Strikes (Minimum Service Levels) Act 2023 will be formally repealed, and vague promises made about making it easier to secure union recognition and for union officials to get access to workplaces. It will oblige bosses to give workers a written statement of their trade union rights along with their statement of employment particulars. This is similar to the long-standing obligation to display health and safety rules.
A new Fair Work Agency is being planned to unite the existing enforcement agencies: the Gangmasters and Labour Abuse Authority, HMRC’s NMW enforcement unit and the Employment Agency Standards Inspectorate. But there is no sign that the new agency will receive any extra funding to become effective.
All in all, the Bill continues the Tony Blair tradition of keeping all the six anti-trade union laws passed by the Tories in the 1980s intact. One example is the necessity to go through the hoops of balloting before trade unions can take strike action still remains in place.
As dessert we are promised further modest goodies including plans to clearly define the status of “worker” to clarify the difference between workers and the genuinely self-employed.
There is also going to be “a right to switch off” to stop Management contacting workers after hours except in exceptional circumstances.