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2015 manifesto pledges: The future of employment law?

17 Apr 2015

At the close our Strategic Employment Law conference in March, I gave a short presentation on the pre-manifesto employment law pledges of the main political parties.

The last of the full manifestos was finally published this week. Here is my run down of the key commitments on employment law and some thoughts on the more interesting and radical.

Conservatives

  • Before lawful industrial action can be taken, at least 40% of those entitled to take part in a strike ballot must participate.
  • Require companies with more than 250 employees to publish the difference between the average pay of their male and female employees (the “gender pay gap”).
  • Transform policy, practice and public attitudes, so that more disabled people find employment.
  • Scrap the Human Rights Act, in favour of a British Bill of Rights, so that the UK’s Supreme Court is ultimate arbiter of domestic human rights matters.

The proposed reforms to the law governing industrial action would have a profound impact on the power of the trade unions, making it much harder in most instances to successfully ballot members to strike.

That we will see new rules in the next Parliament obliging large companies to publish gender pay gap information now seems all but a certainty. The Coalition placed the beginnings of this law on the statute books only a few months ago, and it is a commitment also made in principle in both the Labour and Liberal Democrat manifestos.

The manner in which the Conservative party would legislate to assist disabled people is not set out in its manifesto. A variety of approaches might be taken, including a broadening of the duty to make reasonable adjustments, or even a new duty to positively discriminate in favour of the disabled - similar to the obligation to offer suitable alternative employment to those facing redundancy while on maternity or shared parental leave.

Green Party

  • Phase in a 35-hour maximum working week.
  • Reduce employment tribunal fees.
  • Ensure that no unpaid internship lasts for more than four weeks.
  • Revive the role of democratic trade unions, including the employee’s right to membership, the employer’s obligation to recognise, and the right to strike and peacefully picket.

The Green’s pre-manifesto proposal to make discrimination because of physical appearance unlawful has not found its way in, but there are still ambitious commitments on employment in its manifesto.

A 35-hour working week was implemented in France in 2000, but it only represented a reduction of 4 hours a week (down from the previous 39). Nonetheless, the law has been controversial and has divided opinion in France (broadly between the political left and right). The impact could be much more profound in the UK, since the current limit on the working week here is 48 hours, and statistics show that people in the UK work some of the longest hours in Europe. However, the change proposed by the Greens could have little practical impact if it is not coupled with the removal of the working time right to opt-out (which is unique to the UK). The Green party manifesto makes no such proposal.

The Green party’s commitment to trade unions is notable for its stark contrast to the Conservative position. A coalition formed of Labour and the Greens might conceivably result in a strengthening of trade union power rather than the “re-balancing” pursued by the Conservatives. Whatever the outcome of the election, it seems that legislation to limit or increase the power of the unions is a distinct possibility.

Labour

  • Abolish the employment tribunal fee system.
  • Make wider reforms to the employment tribunal system to ensure access to justice, a quicker resolution for employers, and no rise in costs to the tax payer.
  • Double paternity leave from two to four weeks and increase paternity pay by more than £100 a week.
  • Ban exploitative zero-hours contracts, and introduce the right to a regular contract for those who work regular hours for more than 12 weeks.
  • Abolish the loophole that allows firms to undercut permanent staff by using agency workers on lower pay.
  • Ban recruitment agencies from hiring only from overseas.
  • Strengthen the law against maternity discrimination.

Labour’s commitment to abolish the employment tribunal fee system may on the face of it seem radical. However, the terms of the commitment do not necessarily mean an end to fees, but rather an end to the current fee system.

It remains to be seen what, if any, alternative system Labour would introduce. In an age of continuing austerity, it seems unlikely the party could achieve its aim of making tribunals more accessible and more efficient in delivery without some additional revenue generation. Additional taxes are ruled out, so one possibility might be widespread automatic fines for all employers who lose at tribunal. The level of the fines might have to be high, unless we see a quick resurgence in tribunal claim numbers from their current historic low.

The manifesto does not indicate how Labour would strengthen protection against maternity discrimination, nor does it indicate in what respects it perceives the current law to be deficient. It is hard to predict therefore what changes might come, but one change that could be easily legislated for would be an extension of the protected period for say, 6 months, beyond the date of return from maternity leave. That would limit the scope for employers to easily avoid some key obligations by timing redundancy consultation to commence upon the employee’s return.

Labour also criticises what it calls the Coalition’s “weakening of employment rights” and promotion of a “hire-and-fire culture”. This suggests a possible intention to reverse the reforms of the last Parliament which extended to two years the minimum service for required to bring an ordinary unfair dismissal claim, and which further limited the potential value of a compensatory award for such claims.

Liberal Democrat

  • Make paternity and shared parental leave a ‘day one’ right.
  • Review Employment Tribunal fees to ensure they are not a barrier.
  • Abolish the Conservative party’s Share for Rights scheme.
  • Ensure employers cannot avoid giving their staff rights or paying the minimum wage by wrongly classifying them as workers or self-employed.

The introduction of paternity and shared parental leave as a “day one” right is an interesting proposal. Its introduction would mean employers have far greater exposure to the risk of new hires taking lengthy absences for family reasons shortly after joining.

The demise of the Share for Rights legislation would probably not be noticed by many, given the apparently very low take-up by staff and employers since its inception.

The pledge to prevent employers from wrongly classifying people as having non-employee status is an ambitious one. It seems likely that its achievement would depend on the introduction of a new right capable of enforcement by individuals in the employment tribunals. The manifesto does not confirm how the legislation would distinguish between innocent and deliberate false classification by employers, nor does it comment on how the law would be applied in cases where the individual had willingly agreed to their classification.

UKIP

  • Adopt workers’ employment rights into UK law when the UK leaves the EU.
  • Allow British businesses to choose to employ British citizens first.
  • Oblige employers hiring 50 people or more to give workers on zero-hours contracts a full or part-time contract after one year if they request it.
  • Oblige employer to give workers on zero-hours contracts at least twelve hours advance notice of work. Once notice has been given, they must be paid for the work, regardless of whether or not they are actually needed.
  • Reverse the Government cuts in the number of minimum wage inspectors in both England and Wales.

The UKIP manifesto reveals a narrowing of the party’s previous broad ambition to make lawful positive discrimination in favour of British workers. The commitment is now limited to an entitlement for British employers to favour British job applicants. That still amounts to a right to positively discriminate though, and it is incompatible with the EU Equal Treatment directive, so that the UK’s exit from the EU would be a pre-requisite.

A large part of the manifesto’s attention on employment matters is fixed on zero-hours contracts. The proposal to impose a statutory minimum period of advance shift notice is one that seems workable in practice. However, its application to all forms of zero hours contracts might undermine the flexibility that is, in some instances, desired by both employer and employee. Perhaps one answer is to introduce a right for the employee to opt-out of the entitlement, in a manner similar to that applicable to the 48 hour working week.

Conclusions

It is unsurprising that many of the more ambitious and radical proposals made by the parties over recent months have not become firm commitments in the manifestos. Nonetheless, the clear pledges on employment law now made for the next Parliament suggest that, whatever the outcome on 7th May, we will see significant further change in employment law over the next five years.

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