Labour’s Employment Rights Bill is a howler that will hammer jobs
Employment rights is always a balancing act between businesses and workers, but Labour’s legislation swings too far in one direction, says Karen Jackson
As an employment discrimination lawyer I’ve devoted my legal career to protecting the rights of workers from discrimination and harassment in the workplace. I see the harsh reality of what really goes on but even I cannot think Labour’s Employment Rights Bill is anything but a howler. There’s not enough space in an article of this length to spell out all its deficiencies but what strikes me the most is both the lack of practical reality and the lack of balance in this Bill.
Employment rights always engage the tricky balance between the rights of the business and the rights of the individual. Whilst the earnest aim of Labour’s Bill is undoubtedly to redress this balance, in my view it swings too far the other way. The Bill takes no account of the burden on SMEs which fuel growth in the UK. It relies too much on secondary legislation to provide the detail of many of the provisions. If it receives Royal Assent it will create uncertainty and stymie growth.
There are some good bits. Fire and rehire is an abusive practice used by employers to place their workers on less favourable contracts. I am entirely in favour of outlawing this. Big corporations use this to bully employees into accepting worse conditions. Some zero hours contracts are abusive but zero hours contracts do have a place and for some employees they offer a welcome way to work flexibly. Some employers are calling for amendments around the zero hours provisions because they employ seasonal workers and need flexibility (fruit pickers, Christmas staff).
Day one employment rights already exist across the protected characteristics of the Equality Act 2010 and selected other areas (whistleblowing) but those rights are balanced against a stringent burden of proof. It is not easy to win a discrimination claim. Introducing a day one right to unfair dismissal is ludicrous. Two years is probably too long. Why not revert to 12 months as previously? Employers must be able to hire and choose the best people for the job. You cannot test the skills and suitability of a candidate until they start work. Day one unfair dismissal rights will be a deterrent to hiring. Unless the detail around probationary periods is nailed down before this becomes law it will be chaos – not to mention the burden on the already beleaguered Employment Tribunals service. These provisions are unworkable and they will kill jobs.
A new level of Orwellian
News that the Fair Work Agency (FWA) is to have seize and enter powers takes the Bill to a new level of Orwellian. If you are running an SME and you inadvertently get your pay calculations wrong can you expect the FWA to barge into your home to seize your laptop? The Bill assumes that much bad conduct by employers is deliberate. In my view it is among big corporates that the worst culprits are to be found. They can buy their way out of any situation with their deep pockets. SMEs already live in fear of Employment Tribunal claims.
Clause 20 of the Bill rightly drew much criticism in the Lords. Since October 2024 employers have been liable for acts of sexual harassment against their employees by third parties. The Bill proposes that non-sexual harassment should be unlawful but is unclear on how this would work. It is also unclear as to how this can be balanced against the fundamental human right of freedom of expression, which is already a battleground across schools, universities and beyond across the UK.
In the Commons reading there was a suggestion that pubs might employ ‘banter bouncers’ to police the conversations of customers. This suggestion was rightly met with derision
In the Commons reading there was a suggestion that pubs might employ ‘banter bouncers’ to police the conversations of customers. This suggestion was rightly met with derision. Should café owners have a sign on the door listing topics of conversation that are not permitted if you wish to eat in their establishment? In a time where oversensitivity and the ability to offend are legitimate concerns how can this possibly work? It is a fetter on free speech. Employees have a right to be protected from harassment but third parties have a right to express their legally protected beliefs. The Equality and Human Rights Commission highlighted their concern about this in a recent press release. In the words of Lord Young of Acton: “That is an extremely complicated area of law, and I do not envy publicans trying to get their heads around that.”
This Bill in its current form should not pass. It has already undergone many amendments on its passage through parliament – I predict it will be significantly watered down in order to become workable. Let’s hope I’m right.
Karen Jackson is owner-CEO of didlaw.