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Unions and campaign groups fear a series of public consultations on the Government’s plans to bolster workers’ rights will be exploited by big business as a means to ‘water down’ the legislation as it passes through Parliament.
The Labour Government’s new Employment Rights Bill, which has been strongly backed by trade unions and which the Government has brought to Parliament within 100 days of securing power, will require consultation on crucial provisions.
And that’s where some union figures and NGOs fear the measures could fall.
One Unite union insider told Byline Times: “We need to be realistic and recognise there are some very difficult things here. Take the new union rights to access workplaces [to organise staff], for example.
“All the employer needs to say is ‘no’. What will happen? They’ll get fined.
“If it’s Amazon, Google or others of that size, it’ll be pocket change to them. So there’s a lot we’re flagging up. The trouble is, many trade unionists don’t want to [publicly] rock the boat.”
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Up for Grabs
Under the new Employment Rights Bill, the Government is running consultations to determine:
- How workers currently on Zero Hours Contracts are to be provided with guaranteed hours, and how it might apply to low-hours workers and agency workers
- What to do about those earning below the threshold for the current flat rate of Statutory Sick Pay
- How much cancellation notice shift workers will need to receive, and the level of compensation for any shifts cancelled or curtailed at short notice
- The length of the initial statutory probation period, during which businesses will find it easier to dismiss employees. Here the Government states a preference for nine months
- The time limit for bringing claims to Employment Tribunals
Most of the measures are not expected to come into force until 2026 at the earliest.
Separately, the Government has also pledged to remove the current age bands for the National Minimum Wage (creating flat rates), launch a legally-enforceable Code of Practice on the so-called ‘Right to Switch Off’, modernise health and safety guidance, and develop menopause guidance for employers.
Ministers also plan to review the systems for parental and carer’s leave, and consult on a simpler framework that differentiates between those classed formally as ‘workers’ and the genuinely self-employed, including giving the self-employed the right to a written contract. Currently there are several types of worker defined in law, each with different legal protections and rights.
An Equality (Race and Disability) Bill is also in the works, which would include extending pay gap reporting to ethnicity and disability for large employers.
But the Work Rights Centre, which pushes for stronger protections for workers, notes in a new briefing on the bill that the Bill currently features loopholes which could exclude many low-paid and migrant workers. And that much will depend on how employer groups respond: “To say that…consultation will be fierce would be an understatement. This is in many ways a reflection of what is at stake” the briefing notes..
“Millions of people could be included, or excluded, from better employment protections based on how the Government determines eligibility for guaranteed hours [when it comes to scrapping most Zero Hours Contracts].”
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Close the Loopholes
The analysis by Dr Dora-Olivia Vicol, Adis Sehic, and Andrei Savitski from the think tank adds: “Millions more will be affected by the framework for a single worker status. In many cases, those most at risk of exclusion are also the most vulnerable.”
The briefing points out some weaknesses in the bill as it stands. The authors note that probationary periods “must be proportionate.”
“For those on fixed-term contracts, or migrant workers on fixed-term visas, a probationary period of nine months would offer little to no extra protections. Probationary periods should be proportionate to the individual’s contract length, with a carve-out for migrant seasonal workers – who receive 6-month fixed-term visas and are already highly vulnerable to exploitation,” they add.
The group is calling for guaranteed hours – which will be extended when the majority of Zero Hours Contracts are scrapped – to be extended to agency workers.
“To prevent unscrupulous employers from subverting the spirit of the bill by engaging more agency workers, they too must benefit from guaranteed hours.” Spats over contracts should be able to be handled by the new Fair Work Agency, they argue.
The Work Rights Centre also argues migrants and their representatives should be part of the Advisory Board to the new Fair Work Agency.
And they are concerned that many migrants will continue to be afraid to report labour market abuses, out of fear that their migration status will be shared with the Home Office, which opens the door to “hostile environment policies or removal”.
“There must be an information firewall to prevent the sharing of workers’ immigration status with the Home Office when they report labour exploitation,” the authors add.
Another radical proposal is for company directors – who currently “evade responsibility for exploitation through company structures”, by introducing individual – personal – liability for the payment of tribunal awards or settlement amounts. Dodgy bosses could be put in the dock for refusing to pay out to wronged workers following tribunal rulings.
The non-profit group is pushing for the new Fair Work Agency to be properly resourced and designed to support the Employment Tribunal system, which is “currently woefully under-supported.”
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Labour MP Backs Tweaks
Kim Johnson, Labour MP for Liverpool Riverside, said: “This bill is a decisive break from the Tories’ race to the bottom on employment standards, which has done decades of damage to our living standards and productivity.
“But we need to go further to protect the most vulnerable workers, particularly those on short and fixed-term contracts and seasonal migrant workers. This Government’s current stated preference for a nine-month probation period would partially or totally exclude these workers from full protections.”
Johnson added that without including guaranteed minimum hours for agency workers, “we risk driving an adverse increase in outsourced and casualised workers that do not receive the full intended protections and security.”
In other words, employers may be incentivised to hire agency workers instead of staff on the books, to avoid giving workers rights.
“It is essential that the Government looks again at this bill to close these loopholes that risk creating a two-tier workforce, where migrant, outsourced and insecure workers continue to face exploitation and abuse,” she added.
Dr Dora-Olivia Vicol, CEO of the Work Rights Centre and one of the co-authors, said: “This bill is a once-in-a-generation opportunity for Labour, but it’s highly complex, and the Government must get it right…
“The Employment Rights Bill introduces several great provisions to expand worker protections, but unless we address the major loophole in enforcement and hold directors accountable, bad actors will keep escaping justice, and vulnerable workers will be denied compensation.”
“The Government has a valuable chance to correct this” by making company bosses personally liable for breaching the rules, she added.
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Big Ambitions
The Department for Business and Trade did not respond directly to the analysis, but a spokesperson pointed to DBT analysis claiming that the Employment Rights Bill would deliver up to a £600 income boost for workers in the lowest paid, insecure jobs.
Commenting on the second reading of the Bill on Monday, Deputy Prime Minister Angela Rayner said: “We’re delivering real change for working people across the country, while driving our mission for growth and making people better off.
“Successful firms already know that strong employee rights mean strong growth opportunities. This landmark legislation will extend the employment protections given by the best British companies to millions more workers.
“We said we would get on and deliver the biggest upgrade to rights at work in a generation and the growth our economy needs – and that is exactly what we are doing.”
Unite union leader Sharon Graham, a critic of PM Keir Starmer, has previously criticised the Employment Rights Bill as having “more holes than Swiss cheese, that hostile employers will use.”
While Graham noted that the Bill is “without doubt a significant step forward for workers”, she pointed to a potential battle over amendments to the legislation: “Unite will continue to make the workers’ voice heard as we push for improvements to the legislation as the Bill goes through Parliament.”
A spokesperson for the left-wing National Shop Stewards Network of trade unionists added: “It is essential that the union movement scrutinises the proposed legislation, to demand that it is strengthened.”
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Josiah Mortimer also writes the On the Ground column, exclusive to the print edition of Byline Times.
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