Report: Newcastle TUC/Tyne & Wear CATUC public meeting on Thursday 6 March 2025
Speakers: Martin Wright, Unite regional legal officer), James Harrison, director of the Institute of Employment Rights; and Joel Hamilton, sacked PCS rep at HMRC Benton Park View
Contribution by James Harrison:
ERB weaknesses and what can be done about them
Hi folks, and thanks for the invitation to speak. Believe it or not this is the first time I’ve had the pleasure of visiting Newcastle, so pleased to be here, talking with you all at this important event that concerns the future of work, and future generations of trade unionists.
As Martin Wright has pointed out, this Bill is a step in the right direction for workers. It’s certainly a lot better than our movement was destined for under the previous government. Partly, we should celebrate the fact that our movement has brought workers’ rights back into the ring, for another round. On the other hand, we also need to keep a critical eye on what is happening with the Bill. As trade unionists, I’m sure we are all too keenly aware that the devil is nearly always in the detail when it comes to workplace policies and the law. So too with impending Bills. The difficulty at present is that the Bill is a moving beast, as it ebbs and flows through various consultations, reports, and amendment processes. At present, it’s a moving target. I believe the healthiest position for trade unionists at present is to be a critical friend to the Bill. So, yes we should celebrate the Bill’s strengths, but equally we need to be honest and have a critical awareness about its weaknesses, and more importantly where those weaknesses may take us and the next generation of trade unionists in to the future.
Now if I’d have given this speech a week ago, it would have been much more straightforward. The government, understandably, published several amendments to their Bill this week. Our experts are currently still digesting some of those amendments and what they mean, before we turn around a careful and considered response to them. That being said, it looks like most of IER's criticisms of the Bill have not been rectified, with only a couple of honourable exceptions. If you’ve not already done so, do sign up to the IER newsletter and social media channels, to make sure you receive our expert analysis on the Bill’s as it progresses.
So, although things are slightly up in the air, my plan is to take you through some of the concerns that IER experts had from the point the Bill was published, onwards, and try and include what we know so far of this weeks government amendments that will impact the Bill.
Over the last 36 years, the IER have been informing the trade union movement of the benefits of tripartite bargaining, or ‘sectoral collective bargaining’, as a means of restoring democracy at work, improving workers pay and conditions across whole industries, and reducing inequality in society. Alongside this our experts have been working on various complimentary pieces of labour law policy that would work well alongside sectoral collective bargaining. In 2016, we produced our Manifesto for Labour Law, which was considered a comprehensive blueprint for workers' rights by many trade union general secretaries, and the then Labour Party under Jeremy Corbyn. Before we knew it, we were advising them on their 10-point plan on workers’ rights for their 2017 and 2019 General Election manifestos, which was a set of policies that were extremely popular with the electorate.
When Keir Starmer became leader of the Labour Party things obviously changed. However, the ideas that originated from the IER were referenced in their New Deal for Workers document, also in Labour’s national policy forum document, and later ‘making work pay' documents. It would be remiss of me not to say that there had been some key omissions drafted in at each of those revision stages though, which brought with them a watering down effect.
Since the Labour government were elected last year, there have been various consultations on elements of the Employment Rights Bill, with the Department for Business and Trade, and the Cabinet Office. We obviously aren’t in control of this process, but we have tried to interact with these meetings in good faith.
One of the downsides to the Bill, is that a lot of the powers it confers to the government will be put in to what they call secondary legislation, or regulation written by the Secretary of State. These don't need a vote in Parliament to get through, nor a vote in Parliament to be removed by a future government. It's also more subject to “ping-pong” between the Houses of Commons and Lords – increasing the likelihood of employer amendments. So not a great start from the off, with some obvious weaknesses.
Now I’m sure some of you will be interested in the fine detail of the Bill, but I’m not going to go through it line by line. For that, we have put together a list of potential positive amendments that our experts have collectively recommended. The latest version, published yesterday on our website, does take stock of the government amendments published this week [for most recent comments , 14 March 2025, click here - Newcastle TUC].
We've also done a briefing on the Bill, which can be downloaded too.
And we've commissioned a shiny new podcast, where various employment law experts discuss different aspects of the Bill, like Fire & Rehire, zero-hour contracts, recognition, worker status etc. You can find links for all major podcast platforms via our website.
What we really wanted to do though, was to cut out all the technical stuff and get down to the nuts and bolts of the Bill so trade unionists could understand what was really happening amongst the headlines and technical detail. So we commissioned nine fact sheets on various big issues in the Bill, covering what the Bill does, where the deficiencies are, and how we could fix them. These could be downloaded from our website and shared. [currently not available as being updated, just to make sure they are 100% reflective of the Bill as it stands after recent amendments - Newcastle TUC].
Day-1 rights
Well, Day-1 rights has been the headline, and should really be a good step away from the previous 2-year threshold of employment to access full workers' rights. However it looks as if this policy has been heavily watered down. Day-1 rights is now subject to a statutory probation period, which is yet to be properly defined. This is different to probation periods in company policies, and seems more like a light-touch dismissal period of 1 year for those dismissed on capability (including ill-health), and conduct. The only saving grace is that that light touch dismissal period will not apply for reasons of redundancy or ‘some other substantial reason'. Our experts think this statutory probation period should be abandoned, as employers already have the power to dismiss staff if they fail on grounds of capability or conduct, whether in probation or not.
On the plus side under day-1 rights Statutory Sick Pay now looks to be 80% of wages, with no waiting period, and will remove the low earning threshold which has formerly left those under-employed unable to access sick pay. This should be welcomed.
Worker status
Now most of us will know that there are various statuses of worker that bring with them various sets of rights, employee , worker , limb-B workers and bogus self-employed workers. These separate statuses are all completely artificial, and have been sculpted over time by unscrupulous employers and HR departments, in order to swindle workers of their actual rights. The IER have long called for a single status of worker, which would essentially give every worker full access to existing employment rights. The only exception to this would be those who are genuinely self-employed, working on their own account. We have also set out the arguments that the burden of proof should be reversed – so at present it's up to the worker to prove they are a worker, but we think there should be an assumption that someone is a worker, unless the employer can successfully prove otherwise.
Labour did commit to moving towards single status of worker, and have committed to a detailed consultation on it within the first year of a Labour government. It is mentioned in their ‘Next steps to make work pay', but shockingly is not in the Bill itself, even though the effectiveness of many of the rights the Bill brings in will hinge on there being a clear definition of worker. For instance if you don't fix employment status, then rogue employers who know they can't use zero hour contracts, will simply impose bogus self-employment contracts on their staff. Worse still, the Bill seemingly brings in two other employment statuses – ‘Zero-hour-like’ contracts, and ‘short-term' contracts, which will make the existing employment status question even murkier, and will no doubt provide trap doors for bad employers to use against workers. So employment status should be taken much more seriously if the rest of the Bill is to be a success.
Fire and rehire
Well the headline here is great – end fire and rehire! Does it? Well spoiler alert – no it doesn’t. In fact it wouldn’t stop fire and rehire, nor would it stop P&O style fire and replace tactics. So with one hand the Bill does increase protections from unfair dismissal from fire and rehire. However with the other hand, it has created a back door for employers to legally use fire and rehire if they can show they are likely to encounter ‘serious financial difficulties' in the near future. This seems like a low bar to us, and there is no talk of having external auditors or how the employer has to prove that they believe they might encounter financial difficulties.
The Bill also does not introduce a mechanism of interim relief (i.e. getting workers back to work until the legal case is heard) if they are fired and rehired, or fired and replaced. This would be a basic protection to stop employers doing what P&O did, and simply getting rid of staff, as well as using their financial hardship as financial blackmail to accept a pay-out instead of fighting for their jobs.
The Bill needs to be extended to properly ban fire and rehire, as well as to cover fire and replace tactics.
The exemption should be narrowed, and the wording around ‘likely' financial difficulties should be removed, so employers can only deal with current material realities rather than abstractions and contortions to justify fire and rehire. Also, if this exemption is used, an employer should be required to get a certificate from an independent auditor to evidence the financial difficulties.
Employees should be able to get immediate redress, and reinstated on full pay until the legal challenge has concluded. Also there should be no cap on compensation when unfair dismissal has taken place under the new law, which would financially deter bad employers from firing and rehiring.
Zero hour contracts
The original plan in Labour's proposals was to outright ban zero-hour contracts. This has now been watered down to ‘exploitative zero-hour contracts', whatever that means. As trade unionists we know that the all zero-hour contracts are exploitative, and insecure – far more of a concern to workers than alleged flexibility.
That being said, the Bill does require employers to offer guaranteed hours contracts to some zero-hour contract workers, based on the hours they’ve worked over a 12 week reference period. Labour have said that workers should also be free to refuse an offer of guaranteed hours if it suits them.
What are the problems then? Well as I mentioned earlier, some of this hinges on the worker status argument. Employers may use sub-standard contracts to put workers off accepting the permanent contract. Also employers may use short term contracts, temporary, or low hours contracts, or bogus self employment to circumvent this right. The government have now included agency workers in the regular hours protection, but this part of the Bill really needs tightening up further.
I've read recently that the government have introduced an amendment to allow a trap door on zero-hour contracts. I believe if an employer can show that they have a collective agreement on zero-hours, then they can keep using them. I’m not sure whether this back door will work for employers, but it is a bit of a concern, as there may be a temptation for reps to start bargaining collectively with a hostile employer, but the employer may use this negotiation as cover for non-compliance with the law, which our movement should be very wary of indeed.
What needs to be done? Employers should not be allowed to circumvent this new right by using varying employment or contractual arrangements. Workers should have a right to revoke their rejection of a guarantee of regular hours. Workers should also not be subject to coercion by an employer, and should be allowed time to consider the offer of the permanent hours contract, as well as be represented by their chosen trade union representative in meetings about it. Workers should also be protected from detriment (including dismissal) for exercising their new right too.
Trade Union Access
The Bill does not provide a directly enforceable right of union access. Instead it creates a complicated framework for unions and employers to negotiate access agreements. If the employer doesn’t play ball, then a union can make a complaint to the Central Arbitration Committee (CAC). The CAC can impose an access arrangement on the employer, but if the employer doesn’t comply, unions are forever stuck in a costly legal and financial short-circuit, where an employer can be fined, but the union doesn’t receive the money, the CAC does. So employers – particularly well-resourced ones) may just see this fine as a cost of keeping unions out. Bad employers will be laughing at the government and at unions throughout this process.
What do we need to fix it? Well as in other jurisdictions, union officials should have the right of access to the employers property subject to a short period of notice e.g. 24 hours. Unions should also be able to get meaningful digital access to workers, if it so prefers. Remedies for unions should be accessible and dissuasive. Penalties on employers should be paid to the union as compensation for their breeched right too, rather than fines being paid to the CAC.
Industrial action
Thankfully the government have pledged to repeal the discredited Strikes (Minimum Service Levels) Act 2023. It will also repeal most, but not all of the Trade Union Act 2016 – but the ballot thresholds Martin Wright mentioned are gone. Sadly though, all the remaining anti-union legislation from 1982-1992 will remain on the statute books, still tying our movement down. Collective rights seem sadly neglected across the board in the Bill – and as Martin Wright said, there are some concerning things on redundancy rights, breaking up rules around collective consultation.
Now in terms of fixing this one on industrial action, it can get quite technical regarding balloting periods, so I'll simply say that our industrial action laws should be compliant with international standards on balloting, protection from dismissal, as well as honour secondary or sympathy action. For more information on this, I suggest you read our fact sheet which gives much more detail than I have time for here.
Collective bargaining
Labour originally had the plan to restore tripartite sectoral collective bargaining across the economy. This has now been heavily restricted to adult social care and school support staff. It has also been watered down again, as the School Support Staff Negotiating Body, and the Adult Social Care Negotiating Body are not actually collective bargaining bodies. The Bill expressly states that nothing in the negotiating bodies is to be regarded as collective bargaining, or collective agreements. Their remit, and their makeup can be vetoed by the Secretary of State, which essentially makes them pay review bodies by another name – so a heavy bastardisation of the original concept. Terms agreed by the negotiating body, or imposed by the SoS will be relevant for all workers in the sector, making other collective agreements void, so this cannot be used as a floor to build on, and may well be a way to hollow out existing collective agreements in these sectors.
To fix the Bill, the ASCNB and SSSNB need to be converted to proper collective bargaining bodies consistent with international law. There then needs to be scope added, so that the SoS can impose sectoral collective bargaining on any sector of employment. We also need to allow unions reasonable access to care workers, where ther place of work is a dwelling, as places of dwelling are currently an exemption on access rights.
Trade union recognition
The Bill makes some minor changes to trade union recognition thresholds. They have also committed to removing ‘unfair practices'. But overall it doesn’t go far enough.
One thing we think should be reversed, is that recognition applications should be blocked if a non-independent union already has a recognition agreement. These ‘yellow' or ‘scab' unions as they are called, should not be used as a shield by bad employers to stop them meaningfully engaging with the workers chosen union. So this union blocking process needs to be prohibited.
We also think that access to the workforce needs to be organised on a equitable basis to ensure campaign fairness, and prohibiting captive audience meetings by employers.
It appears that the government may have listened on unfair practices, as a DBT meeting earlier this week seemed to indicate that it would ‘freeze' a bargaining unit for a recognition ballot, stopping employers like Amazon from flooding bargaining units to tilt the vote. They have also said they will stop unfair practices, which we assume to mean the kind of anti-union posters and coercion that Amazon undertook, but we haven’t seen the detail on that yet.
Equality
The Bill brings in new duties, as well as strengthens existing equality laws. A proactive duty is in the Bill to get employers to take ‘all reasonable steps' to prevent sexual harassment in the workplace. There is also the reintroduction of third party harassment. These of course should be welcomed to make the world of work a safer place for women and girls. We have some concerns though that the family leave rights need to be tightened up. Also some of the thresholds on gender, race, and disability reporting seem a little bit high, as they will only apply to workplaces with more than 250 staff, and as we know, employers are good at breaking up bargaining units.
AI
Regulating AI or algorithmic management practices is also largely absent - something which is an impending problem for our movement. There is further reading on that in the IER publication on algorithmic management.
The report stage of the Bill – where amendments not directly supported by the government get debated in parliament – will take place next week on Tuesday 11th and Wednesday 12th. There are a number of interesting amendments for Parliament to consider, not least of which are Andy McDonald MP's excellent amendment:
- Defining employment status in law to prevent bogus self-employment
- Strengthening rights for agency workers
- Ending zero-hours contracts
- Enhancing trade union protections to stop "fire and rehire" practices
- Ensuring unions are recognized in public sector contracts
- Expanding national pay bargaining in key sectors
- Guaranteeing trade unions' right of access and simplifying workplace recognition
But without government support, sadly there may be little chance of these important amendments being added to the Bill.
Above all, as a movement we need to resist employer watering down - it's employer lobbying that has lead us to the current landscape of work, where power is so grossly weighted in their favour, that they see it as an injustice when there are moves to re-balance the scales. Therefore we should have no truck with narratives like ‘we need to be pro-worker and pro-business'.
Employers' associations and the right-wing press have been repeating this mantra that the ERB will be 'anti-growth'. Aside from the discussion about whether growth is financially or environmentally sustainable, even if we take this argument at face value, it is inaccurate. Our economists predict that with just these new labour laws in isolation – if they do that they say on the tin – there will be a 0.2% of economic growth due to higher wages , equating to increased demand in the economy. This is predicted to increase productivity by 0.6% too. So the anti-growth narrative is merely rhetoric, and fear mongering.
We need to remember that parliamentarians work for us. This Bill has been a long time coming, and the fact that it is on the agenda at all, and popular with the electorate, is down to our movement. We should take pride in that, but we certainly shouldn’t let it dissuade us for coming back for another bite at the cherry, for a 2nd, 3rd, or 4th Employment Rights Bill to further re-balance workers' rights. If we can conceive of positive changes for workers, make them practical, make them popular, and bang the drum long and hard enough, we can collectively make it happen. And we should remember that often industrial muscle and collective action is often much more effective than relying on lengthy and costly legal recourse.
Well I think I'll bring it to a close there. I hope that's been useful, and once again, thanks for having me here to speak.