The Employment Bill – an industrial relations perspective

Posted: 14/11/2024

There were plenty of indications that a Labour government would shake up the employment law landscape, and so it was not much of a surprise, or indeed a surprise at all, that the Employment Rights Bill was published with a whole raft of proposed legislation. 

The main headlines inevitably related to the policies which were the most immediately eye catching – day one rights, reform of zero-hour contracts, and greater family friendly rights. The proposed enhancement of trade union and other collective rights perhaps therefore went slightly under the radar. 

Among the four consultation documents on aspects of the bill launched this week was 'Making Work Pay: Consultation on creating a modern framework for industrial relations’, focusing on the updating of trade union legislation, and this reinforces the importance of collective labour law and workers’ rights to the new government. In addition, another of the consultation documents, ‘Making Work Pay: Consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire’, seeks views on the proposal to increase the maximum period of the protective award that a tribunal can bestow where an employer fails to consult with trade unions or elected representatives of employees at risk of redundancy.

For both large and small employers, in sectors as wide ranging as technology, universities and private schools, construction and hospitality, as well as (on the other side of the coin) trade unions, the changes are likely to have a significant impact. This article will consider the consultation documents and the proposed changes from all perspectives. 

There is no doubt, however, that the new laws will provide for far wider collaboration between employers and their workers and representatives. In many ways, it is clear that employers who engage with this enhancement to workers’ collective rights may see benefits, while those that seek to resist are likely to find the going tough.     

So, what are the key changes to industrial relations law? The below is a brief summary:

Reform of union law and strike ballots 

Trade unions and their actions, including rules on strike ballots, are currently regulated through the Trade Union Act 2016. The government believes that these rules place unnecessary restrictions and red tape on trade union activity, and so the act will be repealed in its entirety, and replaced with less onerous obligations, which are intended to ‘update existing trade union legislation and reset industrial relations between unions, employers and workers’. In short, it will mean less regulation over trade unions and lower thresholds and regulation of strike ballots.  

Access to facilities

Whilst employees who are trade union representatives are able to take ‘reasonable’ paid time off for undertaking trade union duties and training, there is no obligation on an employer to provide access to facilities in relation to that time off. The government wants to introduce a requirement for an employer to provide facilities during such time off and establish a ‘presumption’ that the employee’s view of what is reasonable is correct, putting the burden of proof on the employer to show that the employee’s view was not, in fact, reasonable.

Blacklisting 

There are several current protections in favour of employees to prevent this practice (which, broadly speaking, is the practice of compiling information on individuals’ trade union membership and activities, with a view to discriminating against them). Various regulations make it unlawful to compile, sell, supply or use a prohibited list; provide rights for employees not to suffer discrimination in employment on the grounds of an individual’s trade union membership and activities; and designate trade union membership as ‘special category data’ under the data protection legislation. The bill will ‘update’ the blacklisting regulation by making it clear that it covers lists created by AI and those created by third parties.

Protection for taking industrial action 

Earlier this year, the Supreme Court held that workers taking official strike action were not protected from detriment short of dismissal under UK legislation, and that this was contrary to the European Convention on Human Rights. The bill proposes to correct this by strengthening existing rights and protections and ensuring that such protections extend to detriment short of dismissal.

Right of trade unions to access workplaces 

Currently unions do not have a right of access to workplaces and so individual union representatives are left to exercise their functions at the employer’s premises. The intention of the legislation therefore is to provide a framework for access agreements to be reached between employers and trade unions, to provide access to the trade unions themselves. Where access agreements cannot be reached, the matter can be referred to the Central Arbitration Committee (CAC) (the body that currently hears disputes over union recognition). The proposal will provide significant benefits to unrecognised unions and assist their recruitment activity, with a view to obtaining sufficient members in a workplace to force union recognition by the employer.   

The right to a statement of trade union rights

All statements of employment particulars are required to state whether there is a collective agreement with a union in place which affects the employee’s employment. The government believes that this limited obligation contributes to a lack of awareness on the part of employees of their right to join a trade union, and may be contributing to declining union membership. The new rule will require all contracts of employment to state that the employee has the right to join a trade union and to ‘inform staff of this on a regular basis’. 

Simplifying the trade union recognition process 

An employer who refuses to recognise a trade union voluntarily may face an application by the union to be recognised. Such applications are heard by the CAC, but the government believes that the thresholds of membership which unions are required to show are unfairly tilted towards the employer. The proposals therefore are to remove the current requirement for the recognition ballot to have at least 40% of the workforce in the proposed bargaining unit supporting union recognition. In future it will be enough for there to be a simple majority, as well as a simple majority of those voting to win recognition. Put simply, recognition is going to become much easier to achieve, and that, coupled with the new access to workplace rights, is bound to enable more recognition of unions and lead to more collective agreements as a result.   

Protective awards 

Increasing the protective award that a tribunal can award from 90 to 180 days’ pay, or removing the cap on the protective award entirely, is proposed. This would leave it to the discretion of the Employment Tribunal to decide the penalty of the employer. The government is also considering the possibility of interim relief such as reinstatement or re-engagement for those who have protective award claims.

The government believes that strong collective bargaining rights and institutions are key to ‘tackling problems of insecurity, inequality, discrimination, enforcement and low pay’, and that ‘when workers are empowered to act as a collective, they can secure better pay and conditions’. The proof cited for the latter quote is in the explanatory notes to the bill. It is said that ‘in 2023, the average earnings of UK employees who were members of a trade union were 4.2% higher than those who were not members’.

The bill seeks to significantly redress the balance in favour of employees and their representatives. Depending on whether you lean left or right, this may be good or bad news. However, as the government’s large majority means that the bulk of these reforms are likely to pass without too much amendment, we will have to acknowledge that we are living in a new world where the balance will be reset in the worker’s favour and employers will have to adapt. Understanding all these reforms will be key to successful union and worker relations. 

Our industrial relations group has been busy analysing these new proposals and we are actively participating in the consultation process. Over the next few months will be picking out the key issues likely to affect employers and providing in-depth briefings on each of the above proposals.

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