Despite the dominance of Brexit, employment issues are one of the main election battlegrounds for all of the major political parties. There is a particular focus on current hot topics, including insecure work and the gig economy, addressing gender (and other) pay gaps, and new mechanisms for enforcing employment rights.

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The Conservatives are largely relying on plans already being progressed, while the Labour Party under Jeremy Corbyn is promoting its traditional reputation on workplace rights, with a significantly pro-employee agenda and some radical proposals aimed at strengthening the influence of trade unions. This article also covers the key employment measures that have been tabled by the Liberal Democrats and the Green Party.

Brexit

The potential impact of Brexit on employment rights inevitably provides an important backdrop to the parties’ various pledges.

The Conservative manifesto focuses heavily on “getting Brexit done”, with a commitment to bringing the Withdrawal Agreement Bill back to Parliament before Christmas Day in the expectation of MPs ratifying it prior to the UK leaving the EU on 31 January 2020. The Conservatives also pledge to rule out extending the transition period beyond 31 December 2020, as they aim to negotiate a trade deal with the EU as soon as possible. This rapid timetable sits alongside a pledge to legislate to “ensure high standards of workers’ rights”. Although the full terms of a new relationship with the EU and its impact on employment law are uncertain, the Conservatives are committed to the UK being in “full control”, with no single market, customs union or role for the European Court of Justice (“ECJ”) post-Brexit.

Labour’s manifesto focuses on securing a new deal with the EU, stating they will secure “robust and legally binding” protections for workers’ rights and ensure that level-playing field protections are maintained. This suggests a clear intention to keep UK employment law aligned with EU law, although there is no detail on how this would work in practice and the extent to which the UK would continue to be bound by rulings from the ECJ.

The Liberal Democrats have a very clear “stop Brexit” position, meaning that employment rights would remain influenced by EU law in the same way as they are at present. Similarly, the Green Party is campaigning for remaining in the EU and so proposes no change to workers’ rights deriving from EU law.

Employment status and protections

Insecurity and zero-hours contracts

Insecure work and regulation of zero-hours contracts is another topical and contentious area addressed by all the main parties.

The Conservative manifesto relies on steps that have already been taken or are already planned, referring to the scrapping of exclusivity clauses in zero-hours contracts. It also states that the Conservatives will ensure workers have the right to request a more predictable working contract – something that was included in the Government’s Good Work Plan and is also required by the EU Transparent and Predictable Working Conditions Directive. The manifesto refers to other unspecified “reasonable protections”, which may refer to other issues already under consultation such as rights to reasonable notice of work schedules and compensation for shift cancellation.

Labour says it will ban zero-hour contracts, without providing further detail on how this would be done. The law would be “strengthened”, so that those who work regular hours for more than 12 weeks would have a right to a regular contract reflecting those hours. Labour will also ensure workers are paid for cancelled shifts and breaks between shifts, and require “proper” notice for changes in hours. Wider plans in the Labour manifesto to tackle insecurity include:

• Giving “everyone” full rights from day one on the job.
• Strengthening protections for whistleblowers and rights against unfair dismissal for all “workers”.
• Creating a single status of “worker” for everyone apart from those genuinely self-employed in business on their own account. Taken together with the above changes, this suggests all workers (not just employees) would be protected from unfair dismissal with no need for a qualifying period of employment, and potentially benefit from other rights currently applicable to employees such as redundancy and maternity pay.
• Banning unpaid internships.
• Increasing protection against redundancy for people “wherever they work”. It is not clear whether this means a general change in redundancy law, or something aimed at particular types of workplace.

The Liberal Democrats would establish a “powerful” new Worker Protection Enforcement Authority to protect those in “precarious” work, although the manifesto provides further information about who this would apply to or how it would work in practice. They would also modernise employment rights to make them fit for the age of the gig economy by: establishing a new “dependent contractor” status (as suggested in the Taylor Review); setting a 20% higher minimum wage for those on zero-hours contracts in times of normal demand; giving a right to request a fixed-hours contract after 12 months of zero-hours or agency work; and reviewing pension rules. The Lib Dems would also shift the burden of proof in disputes about employment status from the individual to the employer.

The Green manifesto includes ensuring that gig economy workers always receive at least the current minimum wage and have job security, sick leave, holiday pay and pension provision.

Working time

Labour is the only one of the major parties to address working time. The manifesto states that they will tackle excessive working hours and reduce average full-time weekly working to 32 hours across the economy within a decade. Steps to achieve this include ending the ability to opt-out from the 48 hour working week, enforcing working-time rules, setting up an independent Working Time Commission to advice on increasing holiday and reducing hours, and mandating bargaining councils to negotiate reductions in working time.

In addition, Labour would keep restrictions on Sunday trading in place and “review” unpaid overtime. They would also create four new public holidays – St George’s Day, St Andrew’s Day, St David’s Day and St Patrick’s Day.

Enforcement of rights

The Conservatives state they will create a single enforcement body to crack down on employers abusing employment law, which follows Taylor Review recommendations and a government consultation published last July. The new body will protect worker’s rights and aim to prevent workers from being exploited for example, employers taking their tips or refusing sick pay. The Conservatives would also introduce legislation to protect pension pots from being plundered by “reckless bosses”.

Labour maintains that strong trade unions are the most effective way to enforce rights at work, but they would also introduce a new, unified Workers’ Protection Agency to enforce rights, including the Real Living Wage. This new agency would have extensive powers to inspect workplaces and bring prosecutions and civil proceedings.

On the issue of Employment Tribunal (“ET”) fees, Labour expressly commit to keeping ETs free and “extending” their powers (without saying how). They would also introduce new “Labour Courts”, with a stronger role for people with industrial experience on panels. The manifesto does not explain whether these would replace or sit alongside the existing ET system, or with which types of case they would deal.

Equality and human rights

Discrimination

All of the main manifestos promise to extend protection against discrimination in different ways.

The Conservative manifesto alludes to having “reformed redundancy law so companies cannot discriminate against women immediately after returning from maternity leave”. (This is in fact only a planned reform, which is limited to a priority for alternative employment in a redundancy situation.) The Conservatives would also aim to address the “complex reasons” why some groups earn less at work, although it is not clear what strategies and reforms this would involve.

In relation to disability in the workplace, the Conservatives would support disabled people by, among other things, publishing a National Strategy for Disabled People before the end of 2020 to improve the benefits system and access to opportunities for disabled people in terms of jobs (as well as housing and education).

Labour say they will require all employers with over 250 employees to obtain “government certification” on gender equality or face further auditing and fines, with the threshold lowering to workplaces with 50 employees or more by 2020. They would reintroduce the right to protection from harassment by third parties, and enable “positive action” for recruitment to roles where employers can justify the need for more diversity. It is not clear how this would fit with current EU rules which preclude positive action except in strictly limited tie-break situations.

Labour also focuses on disability in the workplace, and would: require all employees be trained to better support disabled people; introduce a right to disability leave recorded and treated separately from sick leave; and recommend a new code of practice on reasonable adjustments including timescales for adjustments to be implemented.

Equality commitments in the Liberal Democrat manifesto include: extending protection for gender reassignment to cover gender identity and expression; recognition of non-binary gender identities; and outlawing caste discrimination. The Greens would tackle gender inequality by setting a 40% quota for women on major company boards, and support employers to “explore the benefits” of menstruation and menopausal leave.

Pay gap reporting

The Conservatives make no new promises to build upon or reform the gender pay gap reporting rules. They have also not mentioned any concrete plans to introduce publication of pay-gap data in relation to ethnicity (which has been subject to consultation), LGBT+ or disability.

Labour would make the state rather than individual employees responsible for enforcing equal pay legislation through their new Workers’ Protection Agency (above), which would work with HMRC. They would extend pay gap reporting to BAME groups, tackle pay discrimination on the basis of race, and introduce mandatory disability pay gap reporting for employers with over 250 employees.

The Liberal Democrats promise to build on existing gender pay gap reporting rules by also requiring larger employers to monitor and publish data on gender, BAME and LGBT+ employment levels and pay gaps. They would also make unconscious bias training a condition receiving public funds.

The Greens would require all large and medium-size companies to carry out equal pay audits and redress any inequality uncovered, and change the law to make it easier to take action against employers in unequal pay cases.

Work and families

The Conservatives say they will “encourage” flexible working arrangements, and consult about making this the default unless employers have a “good reason”. There are no further details on how this would differ from the current right to request flexible working. The manifesto includes a commitment to legislate to allow parents to take extended leave for neonatal care (following a consultation published in July). The Conservatives also promise to look at ways to make it easier for fathers to take paternity leave and extend the entitlement to leave for unpaid carers to a week.

Labour’s proposals in this area include extending the period of maternity pay to 12 months, doubling paid paternity leave to four weeks and increasing paternity pay. They would also: offer statutory bereavement leave after the loss of close family members; review family-friendly rights including rights to respond to family emergencies; and introduce a right to ten days’ paid leave for survivors of domestic abuse.

On flexible working, Labour would give this “right” to all workers, but again it is not clear how this would differ from the current right to request flexible working, or how any new right would fit with business needs. The manifesto later refers right to “request” flexibility over hours from the first day of employment, rather than an absolute right. Labour also says all “large” employers would be required to have flexible working, including a menopause policy.

The Liberal Democrats would also make flexible working open to all from day one in the job, with employers required to advertise jobs accordingly unless there are significant business reasons why this is not possible. Other key Lib Dem policies on family rights include increasing paternity leave from two to six weeks, giving parental leave rights from day one of employment, and requiring organisations to publish parental leave and pay policies.

Pay and corporate governance

National minimum wage

The Conservatives plan to increase the National Living Wage to two-thirds of average earnings – currently forecast at £10.50 an hour – and extend it to those over the age of 21. (It currently applies only to those aged 25 and over.) They claim this would offer an average pay rise of £4,000 per year for four million people by 2024.

Labour say that they would “rapidly” introduce a “Real Living Wage” of £10 an hour for all workers aged 16 or over. The Greens would increase the living wage even further, to £12 an hour for all workers from age 16.

The Liberal Democrat manifesto focuses on setting a “genuine” living wage. They would establish an independent review to consult on how to do this across all sectors, and encourage all public sector employers to pay the living wage.

Worker representation and executive pay

The Conservative manifesto does not detail any specific commitments to workers of a stake in the companies for which they work, focusing instead on helping small businesses and entrepreneurs (for example, by increasing the Employment Allowance for small businesses). In terms of executive pay, the Conservatives say they will improve incentives to attack the problem of excessive executive pay and rewards for failure, by strengthening the UK’s corporate governance regime.

The Labour manifesto promises to give workers both a stake in the companies they work for and a share of the profits they help create, by requiring large companies to set up “Inclusive Ownership Funds”. Under this concept, up to 10% of a company would be owned collectively by employees, with dividend payments of up to £500 a year per employee. Labour would also require one-third of boards to be reserved for elected worker-directors, who would be given greater control over executive pay.

The Liberal Democrats would give staff in listed companies with more that 250 employees a right to request shares in the company. They would also strengthen staff participation in decision-making, including on remuneration committees, and require all UK-listed companies and those with over 250 employees to include at least one employee representative on their board.

The Greens would introduce a new law that the maximum wage paid to any member of staff should not exceed ten times that paid to the lowest paid worker in the organisation. They would also ban any bonus payment exceeding the annual wage of the lowest paid worker.

Trade unions

The Conservative manifesto does not contain anything about trade unions, except to state that a minimum service will be required during transport strikes because “it is not fair to let the trade unions undermine the livelihoods of others”.

The Liberal Democrat manifesto pledges to strengthen trade unions’ ability to represent workers effectively in the modern economy, including a right of access to workplaces (with no further details given). The Greens would require all employers, whatever their size, to recognise any union chosen by the workforce to represent them – but there is no information on how this would work in practice or how it would fit with the current system of union recognition.

The Labour manifesto champions the trade union movement’s historic achievements, stating that shifting the balance of power back towards workers is needed to achieve decent wages, security and dignity at work. The various significant proposals in support of unions and collective bargaining include:

• Establishment of a new “Ministry for Employment Rights”, which would be involved in rolling our sectoral collective bargaining across the economy. The stated aim is to bring workers and employers together to agree legal minimum standards on a wide range of issues, such as pay and working hours, with every employer in the sector required to follow that agreement. This radical proposal would effectively introduce compulsory collective bargaining to all workplaces, representing a huge shift from the current system.
• Allowing unions to use secure electronic and workplace ballots, and removing “unnecessary” restrictions on industrial action (without saying what those are).
• Strengthening and enforcing unions’ right of entry to workplaces for activity and recruitment, banning “union-busting”, strengthening protection of union representatives and members, and ensuring adequate time off for union duties.
• Reviewing and “simplifying” the rules on union recognition, and enforcing all workers’ rights to union representation at work.
• Repeal of “anti-trade union legislation”, including the Trade Union Act 2016 (which among other things raised ballot thresholds and increased regulation of industrial action), combined with creation of “new rights and freedoms” for unions to “help them win a better deal for working people”.

Scottish National Party

The SNP manifesto also contains a number of employment law proposals. The most significant of these, listed as one of the key pledges at the start of the document, is the plan to press for devolution of employment law so that the Scottish Parliament can “protect workers’ rights, increase the living wage and end the age discrimination of the statutory living wage”. 

The SNP says its MPs will demand tougher action to close the gender pay gap, including introducing fines for businesses that fail to meet agreed standards, and back moves to introduce greater worker representation on company boards. In addition, the manifesto contains several proposals about parental rights, including increases to maternity pay, an increase in the length of paternity leave and the pay for it, and an additional 12 weeks of shared parental leave. 

Although the manifesto is expressly based on devolution of employment law, if the SNP ends up holding the balance of power after the election it is possible that some of these proposals will also be pushed for country-wide.

Conclusion

The length of this article testifies to the extensive coverage of employment issues in the main parties’ manifestos, no doubt reflecting their aspirations to be perceived as having workers’ interests genuinely at heart and thereby attracting the coveted “blue-collar” vote. This is, of course, traditionally the mantle of the Labour Party, whose radical pledges at this election would transform the UK’s legal framework for industrial relations and the scope of employment protection.

If it is the Conservatives who prevail on 12 December and form the next government, it will be more “business as usual” yet still a relatively busy time ahead for those of us concerned about employment issues, with many important employment reforms and proposals in the pipeline.

Coming full circle, however, the question of whether, when and on what terms the UK ceases its membership of the EU will in many ways overshadow all the specific manifesto pledges outlined above. Throughout next year and beyond, the outcome of Brexit is likely to be the most influential factor in the long-term future of UK employment regulation, whoever wins the election.

We also explore the proposed immigration regime and policies which each of the main parties are proposing as part of their election manifesto. The full article can be read here.

Related Item(s): Employment, Employment

Author(s)/Speaker(s): Hazel Oliver, Terrel Douglas,