Employment Rights Bill (Fourth sitting)

Debate between Marie Tidball and Nick Timothy

Committee stage
Thursday 28th November 2024 Public Bill Committees

[Nick Timothy]

Q Okay, you don’t want to answer that; I will ask another one.

One of my concerns about labour market regulation relates to the use of substitution clauses by firms like Amazon and Deliveroo, where they give a licence to a courier and the courier is then entitled to share that licence with others. The expectation is that responsibility for checks for things like the status of the substitute, in terms of whether they can work legally and so on, and responsibility for the pay that will be provided to that person, all lies not with Deliveroo or Amazon, but with the person that they have contracted with in the first place. That is not dealt with in the Bill at all; I think it should be. Can you expand on that, please?

Professor Deakin: Of course, the issue of employment status has been deferred, has it not, to a consultation? But unless a way is found to include workers like the Deliveroo workers within the scope of protective labour law, the proposals to improve collective bargaining rights and many other rights will just fall away. Large businesses like Deliveroo, I would say, need workers; and if our labour law system cannot describe those workers as protected by one means or another, there is a clear defect in it.

There are various ways to get to that point. They do not all turn upon the definition of worker, or the use of a substitution clause to get you outside the scope of the current law. In some cases, and in some countries, independent contractors are protected by labour law rights, even if they do not count as employees. In our past, homeworkers who might have employed other people had legal rights under labour laws. So this issue absolutely has to be addressed. I understand it is out for consultation. Many of the measures contained in the Bill would not be effective, unfortunately, if this issue was not grappled with.

Professor Bogg: In the situation that you have just described, I think part of the driver for the use of substitution clauses is that they are used to avoid employment status. So in any review of employment status, a key thing that will need to be addressed is the problem of substitution clauses as a way of avoiding either employee or worker status. There is quite a simple way to do that, which is to treat personal work as an indicative rather than a conclusive factor, because it then just drops back into the range of things that the tribunal will look at.

In a situation where a large company is relying on wilful blindness to avoid responsibilities under migration rules or under health and safety legislation, there is a very simple response, which is to impose criminal liability on large corporations that try to rely on wilful blindness to avoid obligations in primary legislation. That is a very straightforward way of tackling an abusive avoidance of rules that are very important to enforce.

[Dr Tidball]

Q You have mentioned where the Bill places the UK internationally in terms of strike law. Where do you think the Bill broadly places the UK compared with other developed nations, when it comes to the level of employment rights?

Professor Deakin: If we take the whole of individual employment law, for example, the Bill will bring us closer to the OECD average, but there will still be various respects in which we would not be as protective of individual rights as other countries, especially when they relate to remedies for unfair dismissal. Enforcement could be made much more effective, but there is no doubt that the Bill brings us closer to the OECD norm—and not just there: many countries in east Asia and other parts of the world will have labour law systems that are at least as protective as ours. So it is a corrective.

On the other hand, I emphasise that UK employment law has never been as deregulatory as US law has, for example. We are not in a situation, as US unions and US workers are, of starting from scratch. We also have a history of labour law that we can build on. That makes it easier to think of this as the first step in a rolling programme that will effectively restore us to where we were before the 1980s. In the 1970s, more than 80% of workers in this country were covered by a collective agreement. Union membership was around 55% or even 60%, but coverage was over 80%. We had a very progressive employment protection law at that point.

Going back further, we were the first country not just to industrialise, but to have modern factory legislation. We now know that the implementation of the Factory Acts led to not just protection and things like the weekend, but improved productivity. This history is important for us.

Professor Bogg: This Bill seems as radical as it does only because the baseline is so low, and it is very important to keep that in view. Let us assume that this Bill is not enacted—if you look at the OECD countries, we are the fifth least regulated on dismissal protection out of 38 countries, and we are the third least regulated on hiring on temporary contracts. That is where we are in OECD terms, so the measures on dismissal protections and guaranteed hours will push the UK back into an intermediate position in the OECD. I do not think the Bill marks any kind of revolution just yet; it just pushes the UK back into the mainstream of other civilised OECD countries with employment regulation that works effectively.

Professor Simms: To return to enforcement, the challenges of both individual and collective enforcement in the UK at the moment really do add extra difficulty. Not only do the rights not exist in general—there are relatively few rights in general—but they are very difficult to enforce.

Employment Rights Bill (Second sitting)

Debate between Marie Tidball and Nick Timothy

Committee stage
Tuesday 26th November 2024 Public Bill Committees

[Dr Tidball]

Q Why are the changes to statutory sick pay in the Bill so significant, and what opportunities do they bring for disabled workers and those who have long-term health conditions?

Paul Nowak: Why is it so important at the moment? We have 8 million people who are reliant on statutory sick pay, which does not kick in until day three of illness. That means that you literally have people, often disabled workers but not exclusively, dragging themselves into work despite the fact that they are ill, and they are often then spreading ill health. I will give you a practical example, Dr Tidball. I was at a mental health hospital in Blackpool last year where a group of women workers had needed to take strike action, while working in an NHS mental health hospital, because they did not have access to day one sick pay. They are people who were going into an NHS setting when they were clearly unwell, because they could not afford to take time off.

We also have an issue where we have over a million very low-paid workers, mainly women, who do not get any sick pay at all because they do not meet the lower earnings threshold. I think that the Bill will be transformative, and we will get to a situation where people are not afraid to take time off if they are ill because they are worried about whether they will be able to pay the rent, mortgage or bills. I think it is absolutely essential, and a really important part of those basic day one rights that every worker should be entitled to.

Maggi Ferncombe: I concur with everything Paul said. I would only add that we end up with different workers working in the same workplace under different terms and conditions. One group of workers who cannot afford to take a day sick, because they do not get paid, potentially bring in an illness and infect other people. In the public sector, such as in health settings, they are infecting not only the workforce but the public. It will be significantly different for all of those people.

Hannah Reed: As we saw from the pandemic, it is really horrendous when people feel pressured to go into work and put themselves and their colleagues at risk. Therefore, day one rights to SSP are obviously really critical. Moving forward, we would like to see an uplift in SSP because we still have one of the lowest rates in Europe, but the Bill represents a significant step forward, as does the recognition that there will be more collective bargaining. We as trade unions will negotiate for day one rights, often at full pay and not simply at the level of statutory rights.

We are also looking forward, not just with the Bill but moving forward with the wider “Make Work Pay” measures, to working with the Government on the health and safety review. It is regrettable that there is nothing in the Bill on health and safety. We hope that the Government will continue to prioritise that, addressing not only issues about mental health in the workplace but the impact of long covid, which disadvantages some people. We recognise that not everything can be done with this Bill, but we look forward to that ongoing programme of work.

[Nick Timothy]

Q I have three very quick questions, which I think you can answer very quickly. You are obviously very pleased with the Bill, and I know that countervailing power is important and matters. First, would you characterise this as a fundamental act of rebalancing between capital and organised labour? Secondly, as the Bill was prepared, how was the relationship with the Department? How welcoming was it? Did Ministers ensure that you had an open door? Thirdly, I know you hope that the Bill means a more collaborative relationship with employers in the way that you have described, but obviously the right to withdraw your labour is a very powerful thing. Do you think there is a possibility that we will ultimately see more strikes as a result of the Bill?

Paul Nowak: Perhaps I could have a quick go at those questions. I would not describe it as a fundamental rebalancing; I would describe it, as I said, as the biggest upgrade in workers’ rights in decades, and one that has been desperately needed for years. I hesitate to say this, but I think there has been a political consensus that this rebalancing, if you want to describe it as such, needs to take place. If you cast your mind back to 2016-17, Theresa May commissioned Matthew Taylor to undertake his review of modern employment practices. I think there were between 50 and 60 recommendations in his piece of work. The then Government promised 20 times or more in Parliament that they would bring forward an employment Bill and they did not. There was actually a recognition under successive Conservative Governments that the labour market was not working, that it was letting down far too many workers and that it was not working on its own terms, with low productivity and so on.

I hope that there is a political consensus that we do need to shift the balance. On the relationship with the Departments, I have been at the roundtables with union colleagues and also with representatives from the CBI and the other business organisations, and I think it genuinely has been a collaborative effort. What has been said to trade unions and what has been said to business has been exactly the same. The message has been consistent, and I think that is a good way of working.

I do not think you can draw a line between this legislation and an increase in industrial action. Indeed, I would flip that point. Previous Governments introduced the Trade Union Act 2016, which was designed to make it harder, effectively, for workers to take industrial action, and then last year they presided over the biggest strike wave in our recent history. I stood—not because I am some trade union anorak on these issues—on more picket lines last year than I have in the previous 20 years combined, despite the fact that it was made harder for workers to take industrial action. Actually, I think the focus of the previous Government, and I think the focus of this Government, is not on trying to legislate industrial problems out of existence, but on trying to resolve disputes and on finding ways of working together.

I was on the council of ACAS for 11 years. There will always be individual and collective disputes in workplaces; that is a fact of life in modern workplaces. How you manage those disputes and how you put in place the right, proper framework of law to give workers an effective voice is really important, and I think this legislation helps to do that.

Maggi Ferncombe: Good industrial relations will mean fewer strikes; it is as simple as that. If workers feel that they have been listened to through their trade union, and that we have been able to find a solution—hopefully—to any of the issues, the likelihood of workers feeling that they have no option but to take strike action will lessen.

Dave Moxham: I fully concur.

Hannah Reed: From Unite’s perspective, we would say that this is a step towards rebalancing power relations in the workplace. We think that at the moment there are too many gaps in the Bill and we have to include in that zero-hours contracts. We think it is too easy for the employer to game the measures, but we look forward to working with the Committee on tightening those provisions up.

I want to pay absolute tribute to the Department—the civil servants as well as the Ministers—for the work that it has done in recent weeks and months, and for genuinely engaging. I have been in employment rights policy work for generations, and I have never seen anything like this level of engagement in terms of civil servants and also Ministers giving their time to both sides of industry.

I want to reiterate the point that I think has been made by Unison: collaborative working relationships are dependent on both sides. Too often—we have experienced this in recent years—employers have resorted to hard strong-arm tactics such as fire and rehire, sacking workforces and driving up casualisation in the workplace. That increases insecurity and damages morale in the workplace. We would like to be in workplaces where employers come to the table, have genuine negotiations and recognise the importance of investing in the workforce, building security and offering a genuinely fair share of the outcomes from what workers do, not simply increasing the profit margin.