Covid-19 and workplace rights

The Coronavirus pandemic has laid bare the inadequacies of UK labour law and how they should be solved.

Commentary icon14 Sep 2020|Comment

Lord John Hendy QC

Chair of the Institute of Employment Rights

Keith Ewing

Professor of Public Law, King’s College London

Covid-19 has conclusively settled one argument: workers’ rights are a public health issue. This has been evident from the beginning of the pandemic, as arguments raged about workers being expected to self-isolate on statutory sick pay for £95 a week – the price of a bottle of wine in some households. It was evident in the government’s failure to provide PPE for frontline workers, many of whom then became infected and some of whom died. And it is evident now as we watch the unfolding disaster of the testing regime, with workers once again expected to self-isolate without wages being guaranteed.

Covid-19 has also conclusively settled another argument: British labour law is not fit for purpose and has failed those it is designed to protect. It has failed to

  • provide income security for those made ill by the virus;
  • protect the health and safety of front-line staff; and
  • provide meaningful job security for all workers.

These problems are about to be compounded by the scrapping of the emergency Coronavirus Job Retention Scheme by which the government has underwritten the wages of some 9.6 million workers.

But that of course is only to scratch the surface. At root, the Covid-19 crisis has exposed deep systemic failures of contract law on which worker protection is based. Contracts are written by employers. This means they unilaterally dictate the terms and conditions of employment on a take it or leave it basis. It allows employers to dictate that the worker is to be engaged on a self–employed basis and so has no rights. Contracts often even allow the employer unilaterally to change the terms and conditions. And contract law allows the employer to fire and rehire on inferior terms with apparent impunity. This is the reality of deregulation and labour markets.

At root, the Covid-19 crisis has exposed deep systemic failures of contract law on which worker protection is based.

Workers have become commodified; and in a health pandemic they have become vulnerable and disposable commodities, as made clear by the Transport Select Committee’s inquiry into the conduct of British Airways and other airlines. Having made a pre-tax profit of £1.1 billion in 2019 and with cash reserves of £2.6 billion, the Committee was unsurprisingly excoriating in its criticism of BA’s ‘plans to consult on a reduction of up to 12,000 jobs (out of a workforce of 42,000) and downgrade [by ‘fire and rehire’] the terms and conditions of the bulk of its remaining employees’.

These problems are well known, though it has taken a global health crisis to bring them into sharp focus. The bottom line is that economic liberalism and deregulation have led to almost complete employer power as to the forms of employment, the terms of employment, and the duration of employment. There is no trade union in most workplaces, there is a lamentable State presence to enforce what miserable rights legislation provides, and the tribunal process, never very fair, has atrophied as a result of underfunding and Covid-19. If anyone is looking for a metaphor for modern British labour law, try the Leicester garment industry.

How different it would have been had we in place the kind of labour law offered by the Labour Party at the general elections in 2017 and 2019. Inspired in part by the ILO’s commitment to a ‘just share of the fruits of progress for all’, this offered a vision for rebuilding labour law that would control the power of the employer by giving workers a voice through their union in setting terms and conditions of employment by collective bargaining. It would also have greatly enhanced the power of the State with the proposed Workers’ Protection Agency, well-funded to ensure compliance with labour standards.

Instead we have the almost non-existent local authority inspectorate and the wholly deficient Health and Safety Executive, the failures of which during the pandemic were laid bare by another parliamentary committee, the Work and Pensions Committee. Rooted in ILO standards, Labour’s framework would have been cemented in international law, imposing binding obligations to promote collective bargaining, as well as to ensure a ‘just share of the fruits of progress for all’. At a time when the Johnson government is being rightly attacked for its failure to comply with international law, Labour will undoubtedly wish to reaffirm the Party’s commitment to the UK’s ILO obligations.

At a time when the Johnson government is being rightly attacked for its failure to comply with international law, Labour will undoubtedly wish to reaffirm the Party’s commitment to the UK’s ILO obligations.

Which brings us of course to the controversial Trade Union Act 2016, and indeed the violations of ILO standards that have been identified by the ILO Committee of Experts over many years in relation to trade union freedom in particular. It will not have escaped Labour’s new leadership team that as recently as 2019, the ILO Committee of Experts repeated its request to the United Kingdom ‘to review section 3 of the Trade Union Act with the social partners concerned and take the necessary measures so that the requirement of support of 40 per cent of all workers for a strike ballot does not apply to education and transport services’.

Lord John Hendy QC

John Hendy QC John Hendy QC John Hendy QC is Chair of the Institute of Employment Rights. He is a leading employment law barrister, operating from Old Square Chambers London, and H P Higgins Chambers in Sydney Australia. He is also vice-chairman of the International Centre for Trade Union Rights (ICTUR)and Joint Secretary to the United Campaign for the Repeal of Anti Trade Union Laws. John is standing counsel to UNITE, ASLEF,CWU, NUJ, NUM, POA, RMT and UCU.

Keith Ewing

Keith Ewing Keith Ewing Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is also the President of the Institute of Employment Rights