By Professor Keith Ewing & Lord John Hendy KC
Now 300 pages long, the Employment Rights Bill is probably the biggest single piece of legislation on workers’ rights ever printed in this country. But don’t be fooled. The impressive length is not matched by the quality of the content, which is characterised by broken promises and missed opportunities. The substance is either weak and compromised, or empty of content with much of the detail being left to ministers to deal with by regulations. The result is that it will be several years yet before the Bill is brought into force, and the full scale of the disappointment revealed.
Although it is customary in trade union circles to be grateful to the government for what it has delivered in the Bill, such servility is misplaced. The British people gave Starmer a huge mandate to deliver on workers’ rights and he has failed in his duty adequately to follow through. As a result, the over-riding emotion should be one of anger at having been let down once again. Almost every promise on major issues covered by the Bill has not been honoured, while gaping holes remain in our increasingly complex labour laws to ensure that many workers will still be denied basic rights.
‘Exploitative’ zero hours’ contracts will not be banned; ‘fire and rehire’ will not be prohibited; and protection from unfair dismissal will not be available to employees from day one. On the contrary, vulnerable workers will have the ‘right’ to continue to reject the offer of regular hours’ contracts; employers – such as P&O Ferries – will be able lawfully or unlawfully to dismiss staff and replace them with agency workers recruited at sub-optimal wages; and ministers will have a power likely to be used to reduce rather than remove the current two year qualifying period for dismissal protection.
Similarly, trade unions were promised a raft of new rights, beginning with a right of access to employers’ premises: to meet, support, represent, recruit or organise workers. But all the Bill does is provide trade unions with a right to request an access agreement for these purposes. A union which is denied an access agreement may apply to the CAC for an access arrangement to be imposed on the employer. If this is done and the employer refuses to follow the arrangements imposed, the union is required to go back to the CAC for an order requiring the employer to comply.
Where the employer disregards a CAC order, the union must make yet another application to the CAC for a financial penalty on the employer. But any penalty set by the CAC goes to the government, not to the union. Unions have been granted a right without a remedy. In the absence of any remedy for the violation of its ‘right’ of access, there is no reason why a union would incur the additional cost of taking any additional legal proceedings against a recalcitrant employer. This enforcement model operates in other parts of labour law, and for obvious reasons is not widely used. The expectation here is that employers will simply deny access to trade unions in the knowledge that access cannot be compelled.
On trade union recognition the Bill fails to fulfil earlier promises to overhaul the statutory recognition procedure. This is despite GMB’s failure at Amazon, due in part to the employer’s ability to keep unions out by using the opportunities provided by a weak statutory procedure. True, the Bill proposes modest changes to ballot constituencies, ballot thresholds, and union access to the workforce during the recognition campaign period. But these do not address the core problem, namely the conduct of employers before and after a recognition application is made. There is no change to the substance of the law dealing with unfair practices: employers can continue with their disruptive behaviour.
Also on collective bargaining, a commitment was made to roll out a programme of sector wide collective bargaining, designed to reverse the alarming decline in the levels of collective bargaining coverage in the United Kingdom. In 1978 about 82% of workers were covered by a collective agreement or a wages council order. Today that is likely to be in the region of 28%. Although the Bill makes provision for pay determination for adult social care and school support staff respectively, the procedures are subject to tight ministerial control and veto, and do not satisfy any definition of collective bargaining, which in the case of both adult social care and school support staff is in any event actively suppressed.
The lesson from all this is to judge the Bill by what it says, not by what ministers – or some trade union leaders – want us to believe it says. It does not even pass the P&O test, which invites us to ask whether the Bill’s effect would be at least to prevent a P&O type situation arising in the future. The summary dismissal of 786 seafarers in breach of collective agreements and statutory obligations was one of the greatest of many scandals in modern labour law history. Yet the Bill provides no guarantees that this could not happen again, making no provision to restrain employers who behave in this way, or to empower trade unions to resist by solidarity action when employers do so behave.
The Bill should be seen for what it is. It addresses but does not resolve some extreme forms of employer abuse, and fails to deal with all such abuses, the most notable being bogus self-employment. It extends the individual rights of workers (such as on parental, paternity and bereavement leave), but does not respond to the problems of enforcing these rights in the chronically over-loaded tribunal system. And while it nods in the direction of trade union rights and collective bargaining, the Bill makes only limited changes, the government’s commitment highlighted by its failure to lead by example to restore sectoral bargaining in the civil service, despite the obvious efficiencies in doing so.
There are other multiple concessions to employers, including on the right to strike. While the Bill will repeal the Strikes (Minimum Service Levels) Act 2023, it will not remove all the restrictions introduced in the Trade Union Act 2016, and does not address the fundamental restrictions introduced in the 1980s. But for reasons explained above, the penny is unlikely finally to drop until the eve of the next general election, just when trade unionists are being asked again to become foot-soldiers in Starmer’s electoral army. We may then see large scale desertions by those duped by an over-hyped Bill that is likely to make little difference to their working lives, their standard of living, or their job security.
Prof KD Ewing and Lord John Hendy KC are President and Vice-President of the Campaign for Trade Union Freedom. This article first appeared in the GFTU’s Federation News (May 2025) https://gftu.org.uk/federationnews