Employment law update November 2024 (London)

London employment law update 2024 blog

by Derek Kotz

Delegates from a dozen unions along with campaigners and academics were given a detailed reality check on the Employment Rights Bill (ERB) at the IER’s annual Employment Law Update in London.

Gathered in the National Education Union’s Mander Hall, attendees heard a sobering analysis of the Bill from IER chair John Hendy – one of the architects of Labour’s original New Deal for Workers – whose stark conclusion was that the bill was simply “not good enough”.

Acknowledging the strengthening of some individual rights, John highlighted the Bill’s failure to address the decades-long erosion of collective rights, crucially failing to provide for effective collective-bargaining rights across all economic sectors.

“After decades of degradation, we need measures that restore power to working people and their unions, with proper collective bargaining,” he said.

Pointing out that collective bargaining without the right to strike amounted to collective begging, John emphasised that the Bill would still leave UK labour law incompatible with international law.

He homed in on the need for the right to take solidarity action – a right that would have allowed the trade-union movement to stop P&O’s sacking of nearly 900 UK seafarers two years before – and the deliberately onerous complexity of the law governing strike action.

Despite repealing the most recent anti-union legislation – including the Strikes (Minimum Service Levels) Act (MSL), which effectively outlawed strike action in six sectors – the Bill would also leave most of the Thatcher-era legal framework intact.

The need to step up campaigning for effective collective rights was underlined by RMT union President Alex Gordon, who said that for the trade-union movement the current Bill had to be a starting point, and not the final destination.

While welcoming the repeal of the MSL legislation and other measures in the ERB, he said that the trade-union movement still faced existential threats – not least if the current government were to be replaced by a hard-right government in four years’ time.

2023 had seen an important moment in trade-union history, Alex noted, when the special TUC conference had taken a coherent and militant position to defy the MSL legislation, and it was that spirit that should inform the movement’s position on collective rights.

Even with the ERB, there remained unacceptable restrictions on the ability to strike, with excessive balloting and strike-notice requirements, solidarity and political action banned, workplace balloting unlawful – and still no codified right to strike,

Sectoral collective bargaining was the key to reversing the decline in trade-union power and membership – as it had been, Alex pointed out, in the United States with the National Labor Relations Act – the Wagner Act – in 1935.

That legislation, introduced by the Roosevelt government following the great depression, had resulted in a surge in industrial trade-unionism, forced private-sector employers to negotiate over pay and conditions and penalised union-busting.

After 40 years of neo-liberalism, the UK economy had become addicted to low wages, and the movement needed to ensure that there was further legislation – in the life of the current government – to establish a legal right to strike and the right to solidarity action, Alex said.

The ERB’s likely effects on equality and on low-paid and vulnerable workers was the focus of a comprehensive contribution by IER Vice President Professor Lydia Hayes on video link from Liverpool.

On the plus side, Lydia pointed to the removal of qualifying periods for paternity, adoption and parental leave and the establishment of the right to statutory sick pay from the first day of sickness – although the level of statutory sick pay remained at far too low a level, and the right to unpaid time off for family responsibility was of limited benefit to low-paid and precarious workers.

The new right to guaranteed working hours was a step in the right direction, along with the moderate steps towards creating more flexible-working rights, but Lydia warned that the changes were likely to lead to a growth in very short-term contracts, supposed self-employment and umbrella companies as employers try to blunt the impact.

Day-one rights – if that is what the legislation delivers – would have a particularly important impact on low-paid and precarious workers – the government’s impact assessment showed that some 9 million workers, mostly young people, currently had no unfair-dismissal rights, mainly young workers.

It also predicted that an additional 3,500 unfair-dismissal cases would be lodged each year in tribunals – a 17 per cent increase on the current level of 20,000.

The creation of a Fair Work Agency would also have a positive potential impact, if its promised strong powers were able to make a difference the 14 per cent of workers found by the Resolution Foundation to receive no holiday pay and the 11 per cent of low-paid workers who receive no pay-slip.

Paul Scholey of Morrish Solicitors gave a Cook’s tour of recent developments in discrimination law, highlighting the Thomas V Surrey and Borders Partnership NHS Foundation case, which tested the five-point Grainger criteria that determine what constitutes a protected belief.

A claimant who alleged he had been dismissed because of his belief in English nationalism – and who believed that all Muslims should be forcibly deported – failed to establish that his views were “WORIADS” – worthy of respect in a democratic society, one of the five Grainger principles.

Paul referred to the Employment Appeals Tribunal ruling in Rollett v British Airways, that again showed that indirect discrimination can be extended to claimants who do not have a protected characteristic if they can show that they were discriminated against in the same way as if they did share that characteristic.

And he gave an update on Bailey v Stonewall Equality Ltd, in which the claimant was seeking leave to go to the Court of Appeal against a ruling by the Employment Appeals Tribunal that Stonewall did not cause or induce the claimant’s former Chambers to discriminate against her on the grounds of her protected gender-critical beliefs.

An update on the Socio-Economic Duty (SED) – which forms Section 1 of the Equality Act 2010 but has not, to date, been enacted – was given by Jo Wittams, Co-Director of the Equalities Trust.

Jo noted that Labour’s manifesto had pledged to trigger the SED, which obliges public bodies to “have due regard to the desirability of exercising [their powers] in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage” when making strategic decisions.

Jo pointed out that the duty had already been adopted by the Scottish and Welsh governments, and by a number of local authorities across the country, and she outlined how it could have a “potentially groundbreaking” impact in a country where 30 per cent of children live in poverty and the richest 10% own 43% of the wealth.

In the day’s final session, Jo Seery of Thompsons solicitors explored the interplay between “day-one rights” for employees and the proposed codification of probationary periods – termed the “initial period of employment” in the ERB, during which there would be a “lighter touch approach.”

Although the Bill would repeal s108 of the 1996 Employment Rights Act, abolishing the current two-year qualifying period for most unfair-dismissal rights, she pointed out that it would also introduce a power for the Secretary of State to modify the test for claiming unfair dismissal within the initial period of employment – floated as up to nine months.

Jo predicted that employers would review their probationary periods with a view to extending them and making reviews and recruitment processes more rigorous, and that unions should be prepared to defend contract terms and ensure representation for members under review.