While it is too early to predict the outcome of the next election, curtailing the rights of employers is on Labour’s agenda, or at least in its draft manifesto: “A new deal for working people”. “Be prepared” was the motto I learned as a boy scout.
Employees no more
Labour proposes that everyone engaged to work on behalf of an organisation will be deemed a “worker” and a Labour Government will extend employment rights, such as sick pay, to anyone who works for an organisation in a personal capacity. That term would draw in many professional people as well as those at the lower end of the labour market.
Reducing the service required for an unfair dismissal claim
Currently an employee cannot claim that they have been unfairly dismissed if they have been employed for less than 2 years. There are some exceptions, and should you want to dismiss within the two-year limit then you would be wise to take some advice. The minimum service required for a claim has, in the past, been one year. Labour would like to make it a day one right.
Banning zero hours contracts
These have long been a political football, popular with those who want to champion workers’ rights but are not always eschewed by those who work under those contracts.
Banning hire and re-hire
Once an employment contract has been made it is not possible to change it unilaterally, both parties must agree to any significant change before it can be implemented. But a contract can be ended, fairly, and with notice. Often there is a redundancy payment, but not always. Either way this is a dismissal. The employee can then be offered a new position on which the terms may be less favourable. If there is a break in the continuity of their employment, then the employee loses any length of service benefits.
It is important to realise that the employee can bring an unfair dismissal claim in these circumstances. Whether that claim will succeed will depend on the fair reasons (and fair procedure) for the dismissal in the first instance. The current drawback for the employee is making the claim, which is not necessarily easy to do. Whether Labour’s proposals will make that any easier for employees remains to be seen.
The right to flexible working by default
Currently an employee must have been employed for six months before they can make a request to work flexibly, from home for example. The current Tory Government considered making it a day one right to have flexible working by default. However, the Government has stepped back and it remains simply a right to request. Meanwhile Frances O’Grady (the TUC leader) is on record as saying workers should have: “the legal right to work flexible from their first day in a job — not just the right to ask”.
Sick pay for the lowest paid
Employees whose earnings fall below the lower earnings threshold are not entitled to sick pay. Labour would lower or remove this threshold. But higher earners can suffer more if their earnings are suddenly dropped to £109.40 per week.
Logging off out-of-hours
There is no legal restriction on contacting an employee out of hours by email, by messaging or by phone. Labour’s proposal is to legally restrict employers’ rights to contact employees out of hours.
Empowering the Trade Unions
Labour plans to simplify the process of Trade unions achieving recognition and hence their ability to negotiate pay and terms and conditions on behalf of employees (or workers). They have other plans to strengthen the bargaining power of Trade Unions such as simpler ballots.
Fair pay agreements
In businesses that recognise Trade Unions, pay and conditions are negotiated between a Trade Union representing the employees and the company. Labour proposes to extend the role of Trade Unions to enable them to negotiate sector wide agreements. This could, for example, set minimum wages and conditions for the retail sector, care sector or manufacturing perhaps.
My view
It might be argued that employers and employees could reach agreements on many of these matters themselves. Labour presumes that the employer has the upper hand in all agreements and that legislation is needed to redress the balance. That may be partially true. But if we want the best from employees, then we need to think carefully about how to achieve their best contribution by fair treatment. Interventions by legislation are not necessarily helpful.
However, the flip side to the proposals is that employers who choose to treat their workers well will not be undercut by those who choose not to do so. Creating a level playing field is to the benefit of good employers. Curtailing the rights of employers, where they use those rights to provide a poor deal, is understandable.
Malcolm Martin FCIPD
Author Human Resource Practice
Blogs are for general guidance and are not an authoritative statement of the law.