Reports in the media last night and this morning said that the Labour Government is considering reintroducing a fee to be paid by workers and unions who take an employer to an employment tribunal.

After reassuring unions that the Employment Rights Bill would remain intact at both the TUC Congress and Labour Party Conference the media reports say the plan to reintroduce employment tribunal fees is part of an effort to find savings in the Ministry of Justice budget.

Paul Nowak, the general secretary of the TUC, said: “Everyone should be able to enforce their rights at work. Reintroducing tribunal fees would be a gift for bad bosses and price many low-paid workers out of justice – especially women. Tribunal fees were a disaster when they were introduced under the Tories. They blocked genuine claims from going forward and cost more to administer than they raise.”

David Cameron’s coalition government introduced fees in 2013 under the Tories’ austerity drive – but they were scrapped  in 2017 after the supreme court ruled they were unlawful, following a case brought by the Unison.

Tribunal fees place a burden on workers and those who have been badly treated at work. They discourage workers coming forward, while leaving bad bosses to get away with treating their workers badly.  

When tribunal fees were last in place, claims dropped by two-thirds – not because the mistreatment of workers improved –  it was because workers were priced out of the system. Whoever is behind the idea ash would mean overturning a Supreme Court decision must need their heads examining.

As Paul Nowak said: “ET fees are a kite that should never, will never, fly. Its a  gimmick that would do nothing to help employers or employees”

Labour should be clear that its a non runner –  “no ifs or buts” as someone recently said.

 

By Tony Burke, Co-chair of the Campaign For Trade Union Freedom,

The Labour Party has been in damage limitation mode for the past few weeks, scrambling to ensure that the coming conference avoids any policy decisions the leadership doesn’t agree with. The powerful Conference Arrangements Committee has already ruled out large numbers of motions as inadmissible in an effort to take anything seen as controversial out of the conference agenda.

Unions were stunned by the reshuffling of ministers Justin Madders and Jonathan Reynolds who had piloted the employment rights bill through the House of Commons.

In the House of Lords, Liberal Democrats and Conservatives had forced through a number of wrecking amendments.

The unions, backed by the TUC, pushed back hard and ministers were at pains to reassure union general secretaries that the employment rights bill would remain intact and the Lords’ amendments would be rejected.

Starmer’s candidate for deputy leader, Bridget Phillipson, this week said she would ensure Labour’s workers’ rights package remains strong – “no ifs or buts”. She said: “I will work with every single trade union rep in our country to ensure this crucial legislation sees the light of day to deliver change for working people.” – strong words, to which Starmer will have given the green light.

Westminster ‘ping-pong’

The employment rights bill with the Lords’ amendments has been sent to the Commons where MPs will review the amendments and respond to the Lords, telling them why their amendments are unacceptable – a process commonly referred to in Westminster as ‘ping-pong’.

In my last piece on the bill in Yorkshire Bylines, I set out union concerns about the bill as it stood and the attempts by the Lib Dems and Tories in the Lords to weaken it further.

The Lords’ amendments included provisions to have a six-month qualifying period for unfair dismissal, to replace a right to be offered guaranteed hours into a right to request them and to define short-notice shift cancellations as under 48 hours.

The Lords also included a proposal for employees to be accompanied at hearings by a certified professional companion, as well as for the retention of the 50% turnout threshold in an industrial action ballot.

More is needed to keep Labour’s manifesto commitments

Justin Madders, who previously held the ministerial position for employment rights, competition and markets, told the Commons: “Passing this Bill is not, of course, the end of the matter. There is so much more that needs to be done outside the Bill, particularly on finally ending the industrial-scale exploitation that is bogus self-employment.

“Over the coming years, there will be a range of secondary legislation, codes of practice and guidance issued to implement the Bill’s provisions. …given the volume and complexity of all this – the details of the consultations, the scope of the regulations, the language in the codes of practice and even the commencement dates – it goes without saying that there are plenty of opportunities for those who do not want to see workers’ rights improved in this country to chip away at the strong baseline that the Bill represents, and of course it is far easier to do that in some stuffy Committee Room away from the main Chamber.

“I am not sure that everyone shares our enthusiasm for improving the rights of millions of working people,” added Madders, “so we will all be looking at this closely and encouraging the Minister to keep to our manifesto commitments that we all believe so strongly in.”

The government response to Lords amendments

The Lords’ amendments were indeed voted down and the bill was restored to a more familiar version.

The government did back some improvements to bereavement leave, and a clamp down on inappropriate use of non-disclosure agreements, but they included changes to the provision banning fire-and-rehire which the unions do not like one bit.

The government will send the reasons for rejecting the wrecking amendments to the House of Lords, who may well agree to drop the amendments rather than face the government’s thumping majority being used to reject them.

According to employment law experts, Thompson’s Solicitors, the reasons for the rejection will include that:

• it is appropriate for protection from unfair dismissal to apply from day one in employment;
• it is appropriate for workers who meet the qualifying criteria to receive a guaranteed-hours offer;
• defining short notice for cancelling shifts to 48 hours would pre-empt consultation and limit the government’s discretion;
• permitting a “certified professional companion” to accompany employees at disciplinary and grievance hearings, and the right to be accompanied, would increase the cost and complexity of such hearings; and
• it was appropriate to remove the 50% turnout threshold.

What do the unions think?

That said, MPs and the government can expect unions to continue to argue that the overall bill has clauses that will be open to challenge by employers. Also, as many union officials – still suspicious of the government caving into employers’ demands – were pointing out at the TUC, the devil will be in the detail as the regulations go out for consultation and wend their way through the government’s roadmap for implementation.

The Campaign for Trade Union Freedom (CTUF) and the Institute of Employment Rights (IER) have been pointing out to the government that some of the provisions of the employment rights bill needed to be tightened up – including zero-hours contracts, fire-and-rehire, union access to workers, and day one employment rights, which are all open to spurious challenge by employers trying to circumvent these employment rights. There is a need for a second employment rights bill to deal with the many outstanding issues from the New Deal For Working People policy agreed by Labour when in opposition, including extended collective barging and collective rights.

Expect ministers to be ‘on message’ during the Labour Conference, hailing the new legislation as a promise kept, while unions and employment rights experts continue to demand a second bill to address the many issues that are missing, even though they were contained in the New Deal For Working People.

This article was first published on the Yorkshire  Bylines website on September 26th.