John Hayes is managing partner of employment and regulatory specialist law firm Constantine Law
The Labour Government’s Employment Rights Bill (ERB) was published, as promised, within 100 days of Labour winning power, on 10 October. The ERB, when finished, will amount to the biggest changes in the world of work for more than a generation.
“Will agency workers and contractors get unfair dismissal, redundancy and other employment rights”
Employees will get more rights. In due course, agency workers and contractors may also get more rights. It will certainly cost construction businesses more. Yet how much more, and when?
The biggest changes for the construction industry are:
- ‘Day one’ rights for unfair dismissal, but subject to consultation. There will likely be a reduction in the current two-year qualifying period to nine months and a statutory probationary period from day one (a dismissal-light process) where there should be a “proportionate assessment of an employee’s suitability”.
- The right to statutory sick pay, parental leave and bereavement leave from day one.
- Zero hours contracts haven’t been banned but employers must offer zero hours workers a guaranteed hours contract at the end of a (likely 12-week) reference period, subject to consultation.
- The right for all employees to request flexible working and any rejections to such a request have to be “reasonable.”
- More redundancy rights: abolishing of single “establishment” test for collective redundancy consultation, meaning any business making redundant 20-plus employees in the business as a whole must consult.
- The right for shift workers to be told in advance the details of their shifts.
- Increased rights for unions, including a right for all employees to be told they have the right to join a union, and making it easier for unions to access workplaces
- Effective banning of “fire and rehire” for employers unless the employer is about to go bust.
- Increased duties to prevent sexual harassment and harassment by third parties.
- All to be enforced by a new Fair Work Agency.
The introduction of some new rights have been kicked down the road. The government has published a ‘Next Steps’ document that outlines further reforms to employment law that it will look to implement in the future, without committing to any dates.
These include a move towards single status of worker and transition towards a simpler two-part framework for employment status; a “right to switch off” preventing employees from being contacted outside of hours, unless in exceptional circumstances; a requirement for large employers (employing more than 250 employees) to report their ethnicity and disability pay gap; and reviews to parental leave and carers leave systems.
Worker and employee status
There is no doubt that what the government decides on the potential alignment of worker and employee status will be the single most impactful measure on the construction industry. Will agency workers and contractors get unfair dismissal, redundancy and other employment rights (unless they are genuinely self-employed?) This massive potential change will now be subject to a detailed round of consultation and the construction industry, and business lobbying organisations must play their part.
Finally, what to make of all this? Even given the introduction of the ERB, the UK will still be left with the best employment law in the world. It remains far easier to hire and fire people in the UK than it is in all major European economies. Whether that remains the case at the end of this Parliament remains to be seen.
For now, the changes promised in the ERB can more or less be absorbed by construction businesses. The really impactful developments – the liberalisation of the business immigration rules and the deferred employment status changes – are still to be fought for.
