The Employment Rights Invoice (ERB) was launched inside 100 days, as promised, by the brand new Labour authorities on 10 October. For these of us who practise on this space, it represents the daybreak of a brand new period in employment and commerce union legislation.
This text units out some key provisions contained throughout the ERB and presents early observations. There’s a enormous quantity of element that’s topic to future secondary laws and statutory codes of observe. The ERB proposes substantial modifications to present legal guidelines, however extra is promised as wider reforms are included throughout the Subsequent Steps to Make Work Pay doc that was additionally printed by the federal government on 10 October.
The ERB will get its second studying on 21 October, when amendments could also be proposed. As soon as the ERB will get royal assent the Strikes (Minimal Service Ranges) Act 2023 can be instantly repealed, and sure provisions of the Commerce Union Act 2016 can be repealed inside two months of that date.
Half 1 of the ERB has attracted essentially the most consideration because of the complexity of the proposed particular person protections towards insecure hours of labor, and unfair dismissal rights from day one.
On zero-hours contracts, there stays a debate on whether or not the proposals cowl all weak staff and the way rights to assured hours and funds for cancelled shifts will function in observe. Whereas this stays to be examined via secondary laws, some consultants assume that options could also be impressed by present legal guidelines that allow flexibility contained within the Working Time Rules. On unfair dismissal, a unique scheme is envisaged throughout an ‘preliminary interval of employment’ (a probationary interval) the place a ‘light-touch’ process will apply, however any statutory probationary interval can be topic to session earlier than it’s deliberate to be launched in autumn 2026 (on the earliest).
The protections towards ‘fireplace and rehire’ are additionally present in Half 1 and embody any dismissal in response to a refusal to conform to a variation to any time period of a contract. Some commerce unions have criticised the proposals for not being an outright ban, whereas some employers have criticised the excessive thresholds on potential defences towards imposing unilateral variations of contract. Once more, whereas some can see parallels with frameworks in present legal guidelines (Commerce Union and Labour Relations (Consolidation) Act 1992), future consultations on the enabling secondary laws will search views on methods to supply safety for weak staff and promote ‘employee voice’ whereas facilitating the flexibleness that companies crave.
An obligation for employers to take all affordable steps to forestall sexual harassment and enhance safety towards harassment by third events can be included inside Half 1. These sit alongside adjustments to day-one statutory sick pay, versatile working and entitlements to paternity, parental go away and likewise to bereavement go away (which might have wider software).
Half 2 of the ERB will widen the gateway to collective redundancy session (as mentioned in Subsequent Steps to Make Work Pay) Additionally, remember that the federal government plans to extend compensation (protecting awards), presumably to focus on companies which beforehand priced within the prices of circumventing present legal guidelines. The Two-Tier Code, a proposed type of safety for parity on the phrases and situations of staff outsourced from the general public sector, and proposals requiring massive personal sector employers to develop and publish an Equality Motion Plan, additionally characteristic right here.
Sectoral collective bargaining is one thing that commerce unions use to create agreed phrases and situations for staff, which is especially essential for these in precarious and weak employment. Half 3 of the ERB pertains to detailed proposals on truthful pay agreements via the reinstatement of the Faculty Help Employees Negotiating Physique and the institution of the Grownup Social Care Negotiating Physique. These schemes are seen to have an effect on largely low-paid feminine workers.
Half 4 contains substantial adjustments to commerce union rights and industrial motion legal guidelines. A lot of this may reverse adjustments launched by the Commerce Union Act 2016, however there are new rights too: rights of commerce unions to entry workplaces, prohibition towards detriment for participation in industrial motion, and services to be supplied for commerce union representatives. It additionally confirms the repeal of the unused Strikes (Minimal Service Ranges) Act 2023.
The shortage of enough enforcement for employment rights has been a well-documented concern for years, as within the Taylor overview of recent working practices in 2017. Half 5 of the ERB bestows upon the enterprise secretary powers to nominate enforcement officers on labour market laws, akin to nationwide minimal wage and paid annual go away rights.
Additional reforms in Subsequent Steps to Make Work Pay (not coated within the ERB) embody extending the present pay hole reporting and equal pay rights to cowl ethnicity and incapacity, in addition to a proposed ‘proper to modify off’ via a statutory code of observe. There are additionally commitments to introduce a single employment standing definition for staff and improve deadlines for bringing claims from three to 6 months.
In conclusion, the depth and scale of reform is breathtaking and can have an effect on each UK employee, commerce union and employer. It creates a problem that has confronted sharp criticism from some politicians and practitioners, however nobody can say they didn’t know what was coming. All must be given a chance to contribute their views and arguments within the multitude of consultations within the pipeline. The impression of the ERB can be measured by the way it impacts actual lives and actual workplaces.
Shantha David and Bruce Robin are solicitors with UNISON Authorized Companies
