What Changes Can We Expect To See In Employment Law If Labour Form The Next Government?

Day 1 unfair dismissal rights to all workers

All workers (covering current employees and workers) will be given individual employment rights from day one of their employment.

Currently, there are limited rights which employees have from day one of their employment, for example the right to protection from discrimination.

Giving all workers day-one employment rights is a headline catching change that could be very significant. Labour has confirmed that the change will not prevent fair dismissals. Additionally, Labour have suggested that it will not prevent “probationary periods with fair and transparent processes” and they will ensure “employers can operate probationary periods to assess new hires”.

The proposed new rules will require a fair reason and a fair process to dismiss an employee even in the first two years of employment and allow challenges from dismissed employees. This may result in an increase in “ordinary” unfair dismissal claims. However, it could also lead to a decrease in some claims for discrimination and whistleblowing, which Claimants may currently raise in the absence of having acquired the requisite 2 years' service for an unfair dismissal claim.

New single status of worker

The creation of a single status of ‘worker', for all but the genuinely self-employed. These workers would all have the same rights from day one of their employment.

The move would also include a consultation on how a simpler framework would differentiate between workers and the genuinely self-employed.

There are currently three categories of worker – ‘worker', ‘employee' and ‘self-employed'. Labour is proposing to remove the employee/worker distinction and revert back to only having two categories, which will be referred to as “worker” and “self-employed”.

This proposal is intended to protect workers, who are currently denied some basic employment rights (e.g. the right not to be unfairly dismissed).

Ending fire and rehire

End the abuse of “fire and rehire” practices.

To end the practice of fire and rehire, Labour propose to reform the law to provide remedies against abuse and bring in a strengthened Code of Practice.

Labour's proposals confirm that “fire and re-hire” will still be permitted in circumstances where there is “genuinely no alternative”.

Family-friendly rights

Introduction of:-

• The right to flexible working from day 1, which can only be refused where not “reasonably feasible”;
• Enhanced maternity protection to prohibit dismissal for 6 months following a return from maternity leave, except in specific circumstances;
• Bereavement leave; and
• Parental leave as a day 1 right.

The introduction of these rights, would provide enhanced family-friendly rights. However it remains unclear how impactful they will be in practice.

For instance, there will still be the ability to refuse a flexible working request provided that it can be shown that it is not “reasonably feasible”, and dismissal of a returner from maternity leave within 6 months is still permitted in “specific circumstances” (the definition of which is awaited).

It also appears that bereavement and parental leave will all remain unpaid rights.

Changes to Employment Tribunal

Increase the time limit for bringing all Employment Tribunal claims to six months.

For most employment claims, a Claimant is required to bring a claim to the Employment Tribunal within three months (subject to a few exceptions). Therefore, this would double the amount of time available to pursue a claim in the Employment Tribunal. This may lead to an increase in Employment Tribunal claims. Conversely, by allowing more time before a claim has to be raised, this change could reduce the number of claims if, for instance, the dismissed employee has found new employment before the deadline for bringing a claim. Time will tell.

Right to switch-off

A right for workers to “switch-off”, which would include the right not to routinely work outside normal working hours, not be penalised for refusing to attend events out with normal working hours and not to be routinely contacted outside normal working hours.

It is unclear how this right to switch-off would be enforced, and what (if any) remedy would be available to a worker in the event of a breach.

Wages and sick pay

Ensure “fair pay” by changing the Low Pay Commission's remit to ensure that the cost of living is taken into account, to create a genuine living wage. The age bands within the National Minimum Wage Regulations would also be removed.

Strengthening of statutory sick pay, with the removal of the “lower earnings limit” and waiting period before SSP is provided.

Ban unpaid internships, except where it is part of an educational or training course.

These changes will impact employers by increasing the costs of employing staff, either through the higher hourly rate, and/or the requirement to provide additional minimum benefits (for example, sick pay)

Collective rights

Enhancement of Trade Union and collective rights to include the following:-

• Introduce a requirement for a statement to be issued to all new starters, and all staff on a regular basis, to inform them of their right to join a Trade Union;
• Allow electronic and workplace statutory ballots;
• Simplify the process of Union recognition, by removing the requirement that 40% of those entitled to vote on recognition need to vote in a ballot for it to be valid for recognition;
• Provide a right for Trade Unions to access workplaces for recruitment and organising purposes; and
• On collective redundancy, the requirements will depend on the number of redundancies across the whole business rather than at each establishment (reversing the “Woolworths” decision).

The modernisation of the balloting requirements seems sensible in the 21^st Century. However, the expansion of collective rights could create quite a culture shift for UK employers. The proposed roll back of some of the Conservative Government's more radical changes, like the proposed repeal of the minimum service levels during strikes, and Labour's broader commitment to advancing trade union rights should not be a surprise given the party's long association with the trade union movement.

Disability and Race discrimination protection

Introduce new duties to produce ethnicity and disability pay gap reports.

Introduce a Race Relations Act to address equal pay and strengthen protection against dual discrimination.

Labour's manifesto also commits to championing the rights of disabled people by improving employment support and access to reasonable adjustments.

An extension of rights is proposed, but this has been the general direction we have been heading anyway. Whilst, being required to produce additional pay gap reports will increase administration, it is likely only to affect large businesses, and may be helpful in identifying and therefore allowing employers to address unintentional discrimination in pay practices.