What is on the horizon for workers' employment rights?
As we head towards Halloween with the various permutations of a deal, a further delay to Brexit (most likely) or crashing out of the EU, and in any event another General Election, we take a look at what all this could mean for the future of workers’ rights.
We have yet to hear what the Conservative plans are in relation to their proposals for workers’ rights in any Brexit negotiations and at the Tory party conference the only concrete announcement was to increase the National Living Wage to £10.50 by 2024 and lower the age threshold from 25 to 21. With the inevitability of a General Election around the corner it won’t be long before these are tabled. However, it seems likely that Teresa May’s former approach will be maintained of not eroding existing rights on the statute book.
In the meantime, outlined below are the other two main parties’ current proposals and as much as we currently know about what the various Brexit options will mean for workers.
The Labour Party has very firmly put strengthening workers’ rights at the centre of their agenda as outlined at the TUC conference in September and their own Party Conference. Labour’s proposals include establishing two new bodies: a Ministry for Employment Rights which would “be responsible for delivering the biggest extension of rights this country has seen” and a Workers’ Protection Agency which would be responsible for enforcing rights and would be given extensive powers to inspect workplaces and bring prosecutions and civil proceedings on behalf of workers. Labour also promises to be tough on employers who breach employment legislation. The Ministry for Employment Rights would be led by a new Secretary of State for Employment Rights ensuring “the voice of the people will be heard at cabinet level”.
Other headline proposals include shortening the working week to 32 hours (4 days) with “no loss of pay” within 10 years, raising the National Living Wage to £10 per hour for all over 16s by 2020, a ban on unpaid internships and zero hours contracts and the introduction of a civil enforcement system to uphold gender pay commitments. Labour intend to deal with the long-standing issue of having different categories of employment status by creating one status of “worker” for everyone except the genuinely self-employed. This is also the subject of a private members Bill (sponsored by the former Labour now Independent MP Frank Field), which seeks to introduce a single employment status for workers and employees and was scheduled to have its second reading on 4 October. Labour also propose significant workplace support for menopausal women working in large companies including flexible hours, training for managers on accommodating their needs and raising its status to a long-term fluctuating health condition.
There are also plans to simplify and bolster trade union rights which include repealing the Trade Union Act 2016 in its entirety (which amongst other things tightened the requirements for industrial action ballots), strengthening the protection for trade union representatives against unfair dismissal and allowing electronic and workplace ballots. This last proposal is interesting as the government’s response to the 2017 Knight Review on electronic balloting is still awaited. A more radical proposal is the introduction of sectoral collective bargaining so that councils of worker and employer representatives are established to negotiate agreements with minimum terms and standards on core issues including pay, working hours and recruitment and grievance processes for the whole of a particular sector.
The TUC announced that it is seeking an increase in the number of bank holidays from 8 to 12 as the UK has less than any other EU country, which have an average of 12 days. They are also seeking increased rights for those who work on bank holidays such as the right to premium pay or time off in lieu. Whether that is likely to be implemented will depend on whether there is a change of government.
The Liberal Democrats have focused on inequality in their Plan for Britain. It should be noted that their proposal to stop Brexit also means that in doing so current EU employment rights would remain in place and we would be subject to any changes in the pipeline such as the EU Directive on transparent and predictable working conditions and the EU Directive on work-life balance for parents and carers.
In what would be an extension of the Equality Act 2010 they plan to require all companies with more than 250 employees to monitor and publish data on gender, BAME and LGBT employment levels and pay gaps. Name-blind recruitment in the public sector will be extended and its use encouraged in the private sector, which many organisations have already implemented. They also intend to develop plans to tackle BAME inequalities and review whether the Equality and Human Rights Commission is effectively fulfilling its role and whether funding is adequate.
Their proposals also refer to outlawing caste discrimination (legislation was dropped by the Conservative government following consultation in favour of relying on emerging case law) and extending the protection of gender reassignment legislation to cover gender identity and expression. They have also committed to remaining in the European Convention of Human Rights and defending the Human Rights Act 1998 which is in direct opposition to the Conservative aim of repealing that Act and replacing it with a British Bill of Rights, which is currently on hold pending Brexit.
Finally, as to what will happen to workers’ rights, much will depend on whether there is a deal, and if so, the terms of that deal. The Times reported on 30 September that the Conservatives would be unveiling a package of workers’ rights to woo Labour MPs but as yet there is no detail on what these might be. In any event the UK is likely to maintain similar protection for workers as currently exist in order to negotiate any future trade deals with the EU and not alienate voters.
In a no deal scenario nothing will change overnight in relation to workers’ rights. The government has already legislated to make technical amendments to UK legislation to reflect the fact that it will have left the EU apart from rights on an employer’s insolvency and in respect of European Works Councils. Following a no-deal Brexit the UK courts would no longer be able to make referrals to the European Court of Justice, although they could still take ECJ decisions into account in making their own determinations.
As there are so many variables as to what will happen to workers’ rights in this period of unprecedented uncertainty, it continues to be a case of “wait and see” and “watch this space” as even the greatest of seers, Nostradamus, would struggle to foresee what happens next with any real confidence.
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