General election 2017: the party manifestos and employment law
Author: Darren Newman
With the general election approaching, consultant editor Darren Newman examines the Labour and Conservative manifestos to see where the two main parties stand when it comes to potential changes to employment law.
In this general election, both the main parties are making big claims about their employment law proposals. In their different ways, each manifesto marks a significant departure from the employment law offering made in 2015.
The Labour Party manifesto sets out a 20-point plan to improve the rights of employees and workers. The plan ranges from technical changes - like the reintroduction of provisions on third-party harassment - to huge structural reforms to our industrial relations system, including the "rolling out" of sectoral collective bargaining (whatever that might mean). Other measures proposed include scrapping employment tribunal fees and banning zero hours contracts - although there is no indication what the minimum working week will be. The distinction between workers and employees would be abolished under Labour - with all workers receiving full employment rights - and Labour would also set up a dedicated commission to "modernise the law around employment status". TUPE and the Agency Workers Regulations would be strengthened and paid paternity leave would increase to four weeks. Labour proposes a major increase in the role of trade unions and collective bargaining, with union recognition being required of companies entering into contracts with the public sector and a significant extension of the role of individual union representatives. The minimum wage - or "living wage" - would reach £10 per hour by 2020. Importantly, this rate would apply to all workers aged 18 and over, removing the lower rates that currently apply to those under 25.
The Labour manifesto presents an extensive shopping list of employment law reform and the sheer range of proposals exceeds anything produced by a political party in the past 30 years. In part, this must be because the manifesto was produced at short notice and there was no opportunity to prioritise reforms - or even consider the practicalities of implementing such wide-ranging changes over the course of a five-year Parliament. The reality is that the next Government will spend much of its time and energy managing the Brexit process and it is difficult to see how very much of what Labour proposes could realistically be accomplished.
As for the Conservative manifesto, Theresa May has said that it represents the "greatest extension of rights and protections for employees by any Conservative Government in history". This is quite a claim for the Prime Minister to make and, to be frank, it does not stand up to scrutiny. While we tend to associate Conservative Governments with deregulating the workplace, this is a recent phenomenon. Harold MacMillan's Government introduced the right to minimum periods of notice and a written statement of terms and conditions in the Contracts of Employment Act 1963; Ted Heath introduced the right not to be unfairly dismissed in the Industrial Relations Act 1971; and John Major's Government passed the Disability Discrimination Act in 1995. Even Margaret Thatcher, while eroding the powers of trade unions, extended the rights of individual employees by abolishing the closed shop and introducing protection against unlawful deductions from pay with the Wages Act 1986.
Nothing in the Conservative manifesto comes anywhere close to these major reforms. In fact, the Conservative proposals are so modest that it is sometimes difficult to distinguish them from the law that is already in place. The manifesto proposes, for instance, that employees will be given the right to request leave for training. However, this right already exists (although it is seldom used) in the form of the right to make a request in relation to study or training under s.63D of the Employment Rights Act 1996. It is true that the right currently applies only in relation to those employees with at least 26 weeks' service working for employers with 250 or more employees, so there is room for its scope to be widened (the manifesto says that the right will be given to "all employees"), but it hardly counts as a radical proposal. Nor does the right for carers to take a period of unpaid leave, as unpaid leave always has a limited uptake. As for equality law, most employment lawyers are frankly stumped by the manifesto pledge to "extend Equalities Act [sic] protections against discrimination to mental health conditions that are episodic and fluctuating". The Equality Act 2010 already deals with episodic conditions (both physical and mental) and it is difficult to imagine what the manifesto can possibly be referring to here.
Of more substance is the promise to introduce an obligation to report on pay gaps relating to race. This is a much bigger undertaking than gender pay gap reporting, as it effectively means that large employers will also have an obligation to carry out ethnic monitoring of the composition of their workforce. An employee voice in corporate governance is also proposed, with companies having to nominate a director from the workforce, create a formal employee advisory council, or assign specific responsibility for employee representation to a designated non-executive director.
Perhaps the most noticeable thing about the Conservative manifesto, however, lies not in the details of the proposals but in its tone. There is no suggestion of the deregulatory instincts that we saw under David Cameron and no suggestion of more restrictions being placed on industrial action. There is, instead, an emphasis on "proper protection" of workers and employees - including those working in the "gig economy" - and the manifesto specifically mentions the Taylor review into modern workplace practices. That is due to report this summer and, if the Conservatives are re-elected, it will be difficult for them to ignore whatever recommendations it makes.
Whoever wins the election, it is clear that there will be a fresh approach to employment law. A Labour Government would herald dramatic change, but even a Conservative one would result in a widening of employment rights and new obligations being placed on employers. We will have to wait until 9 June to see whether the world of employment law is facing a major earthquake or a slight tremor.
