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The Stakes: Employment Rights

In the run up to the General Election, we're asking experts to break down what's at stake across a number of areas. In this blog, Alex Just, Employment Law & Trade Union Barrister from the Institute of Employment Rights, takes a look at what's at stake for employment rights.

Where are we at?

There has been a Conservative prime minister in Number 10 since the Coalition government formed in 2010. Although Theresa May has attempted to rebrand the Tories as "the party of workers", the party's track record on employment law has largely revolved around weakening protections at work and attempting to neuter the trade union movement.

Over the last seven years, tens of millions of people in the UK have lost important employment rights and our national industrial relations framework is at risk of falling far behind international labour law standards because of the draconian and divisive Trade Union Act 2016.

The introduction of employment tribunal fees in 2013 has priced tens of thousands of people out of justice. To bring an unfair dismissal claim you now not only need to be employed for two years, but have to pay an issuing fee of £250 and a hearing fee of £950. Anti-discrimination, equal pay rights, and a range of other individual employment rights, have been effectively withdrawn from the millions of British people who cannot afford to pay £1,200 to bring a claim against their employer. Recent research by academics at Oxford University has shown that across the board the impact of employment tribunal fees has led to a two-thirds reduction in most claims. Sex discrimination cases have reduced by a staggering 80% from their pre-fees level, and withheld wage claims are now simply uneconomic for the lower paid.

The Enterprise and Regulatory Reform Act 2013 set a maximum award for successful unfair dismissal claims at one year’s gross pay for those earning less than £74,200 each year. This cap now allows rogue bosses to easily calculate the cost of sacking their staff illegally and prevents employment tribunals from punishing the worst firms effectively.  

Under the Trade Union Act 2016, millions of public sector workers have had their fundamental right to take part in industrial action taken away. A minimum of 50% of those entitled to vote on any strike must now take part in the ballot, and in ‘important public services’ at least 40% of those entitled to vote must vote in support of the action. These ballot thresholds are undemocratic and breach the law: it is against long-standing international standards to effectively count abstentions as 'no' votes.

What’s at stake in the General Election?

The issue of employment rights has come into even greater focus following the result of the EU Referendum. The Conservative government’s proposed Great Repeal Bill will repeal the European Communities Act 1992 and convert much of the existing European employment rights framework into UK legislation.

However, it does not necessarily follow that after Brexit important employment rights will be protected in the longer time. The Great Repeal Bill will give the next government sweeping ‘Henry VIII’ powers to repeal or amend current legislation and regulations relating to working time, parental leave and the rights of agency workers not to be treated differently from their permanent colleagues. As EU law currently guarantees a range of rights through secondary legislation, rather than primary Acts of Parliament, the next government will be able to water down or remove a range of rights which EU law currently guarantees without the need for a full debate in parliament.

Earlier this year, the Labour MP for Great Grimsby, Melanie Onn, brought a Private Members’ bill to seek to protect workers’ rights in the wake of Brexit, but this was ‘talked out’ by Conservative MPs in the House of Commons. She also tried to protect workers’ rights by putting forward an amendment to the Article 50 Bill, but that too was rejected by the government.

Against the backdrop of seven years of attacks on employment rights, the ongoing controversy over zero-hours contracts and how to deal with those engaged in the ‘gig economy’, and mixed messages from key members of Theresa May’s ‘team’ on the future of worker rights post Brexit, there is arguably more at stake for British workers in this General Election than at any time since the 1970s.   

What can be done?

Employment law is in urgent need of reform, most critically through the restoration of sectoral collective bargaining – a key proposal in the Labour Party Manifesto, and also the centrepiece of the Institute of Employment Rights Manifesto for Labour Law.

Relying solely on statutory minimums to set standards in the workplace (such as the minimum wage) both provides employer with a floor to aim for and attempts to find a one-fits-all solution to a very heterogeneous workforce. Through sectoral collective bargaining structures, employers and trade unions come together to agree minimum standards that are fair and workable across their entire industry, and which apply to all workers in that industry. These collective agreements cover everything from pay rates, to health and safety protocols, to dispute resolution procedures that help workers uphold their rights without recourse to costly legal proceedings.

This, more democratic, approach should also be mirrored in government with the establishment of a Ministry of Labour to represent workers in Westminster, and a National Economic Forum on which both workers' and employers' interests are given a voice.

Today's unilateral, top-down application of employment standards does not work and has led to increasing inequality and exploitation. As has now been highlighted by a range of experts, from economists to the government's jobs tsar Matthew Taylor: workers need a voice. It is only by working with trade unions that we can ensure theirs is a strong one.