How the Employment Rights Bill should be improved
Andy McDonald at 2016 Labour Conference (Credit: Allstar Picture Library/Alamy Live News)
5 min read
"I think this will be the biggest upgrade to workers’ and trade union rights in a generation," TUC general secretary Paul Nowak told a meeting of bill committee members scrutinising the Employment Rights Bill in Parliament.
And he is right. After four decades of attacks on the trades unions, which has resulted in a falling share of national income going to people in wages, we now have a bill which will start to roll back the ‘hostile environment’ for trades unions and those seeking a better deal at work. Notably, the Strikes (Minimum Service Levels) Act 2023, and much of the Trade Union Act 2016, will be overturned.
Alongside the relative decline in wages, recent experience in employment practice sets out why this bill is needed. Just look at the fire and rehire of British Gas workers, the fire and replacement of P&O, the denial of rights at Deliveroo or Hermes, and the barriers to balloting those public service workers whose pay the Conservatives held down for over a decade.
The bill has been long in its development. As shadow secretary of state for employment rights, I worked on the New Deal for Working People, which the Labour Party published in September 2021. It set out the means to deal with insecure work, in-work poverty and insufficient union freedoms. Much of that policy is in the bill today.
In our New Deal, we said Labour would give all workers day one rights on the job, ban zero-hours contracts, and outlaw fire and rehire. On union rights, we said Labour would modernise union balloting, simplify union recognition and improve right of entry to workplaces.
The bill delivers day one rights to claim unfair dismissal and to paternity, parental and bereavement leave. It shuts down space to carry out fire and rehire, though leaves some wriggle room. It creates a right to a guaranteed hours contract, though not guaranteed hours. It removes unfair recognition and industrial action balloting laws and creates new rights to request access, though not a right to access.
There are positive measures – some collective measures for unions as a whole, some for individual employment rights. However, much of this bill is setting a framework, with significant further steps, consultations, and lobbying needed to craft the detail. That means employers will rightly continue to lobby the government to update content, and unions and their advocates in law must do the same.
I welcome the bill. I believe this is the best opportunity we have to make work fairer and (to adopt a phrase) to make work pay. That means we must ensure this legislation is as strong as it can be. Trades unions are setting out improvements they would like to see that will better level the playing field for them to meet employers.
On unions organising, they want sectoral collective bargaining to operate across a wider sector of the economy and in other industries, not just social care. They want a definitive right to access workplaces – in-person and online. And they want to move ahead on modern balloting. On fire and rehire, it’s clear they want to see strengthened legal powers for unions to intervene, and greater safeguards to prevent employers exploiting potential loopholes. On zero-hours, there remains a concern that the measures setting out a right to a guaranteed hours contract may still be exploited.
On collective bargaining, Paul Nowak told the bill committee: "We would love to see fair pay agreements rolled out to other sectors of the economy. That is a point that we will make going forward." Hannah Reed of Unite said the union would like to see further measures in the bill to extend collective bargaining, while Mick Lynch of RMT said he would like an amendment for sectoral collective bargaining.
On fire and rehire, Reed said Unite was "concerned that employers may be able to justify fire and rehire in certain circumstances, and our view is that there needs to be a total ban". She added that the union "would like to see some measures before that, that stop the employer and require them to open their books to demonstrate to forensic accountants that changes are needed". Lynch called for the power for unions to legally prevent fire and rehire, saying: "If it is not called injunctive relief, I do not mind—I do not mind whatever way the bill comes out—as long as it has the power of immediacy and enforceability through proper channels."
There are demands from other stakeholders too – those campaigning around sick pay, or allowances for kinship carers. The government should take on board the asks.
This bill is a landmark bill but its passing won’t immediately change lives. It is crucial that these changes are in place early enough in the Parliament that those who can do recognise the benefits.
The government must take on board union requests for further changes, including on a single status of employment and on collective bargaining to deliver the high-paid, high-skilled productive jobs and prosperous economy that we all wish to see.
Andy McDonald is Labour MP for Middlesbrough and Thornaby East, and was shadow employment secretary from 2020 until his resignation in 2021
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