Employment issues have emerged as a major election battleground, reflecting the aspirations of the Conservatives and Labour - and perhaps to a lesser extent the Liberal Democrats – to be recognised as the ‘workers’ party’. Theresa May has rather boldly claimed to be pledging “the greatest expansion in workers’ rights by any Conservative government in history”.
Unsurprisingly, the Labour Party under Jeremy Corbyn is jealously defending its traditional reputation on workplace rights, with a fiercely and unashamedly pro-employee (and pro-trade union) agenda. The Lib Dem manifesto is arguably a lower-calorie version of the Labour one in certain respects, but nonetheless features some significant employment reform proposals.
This article looks in turn at the relevant policies featured in the manifestos of the three main parties before briefly highlighting some of the main things the Green Party and UKIP are saying on employment matters.
In relation to Brexit, the Conservative manifesto repeats the party’s commitment to enact a Great Repeal Bill to convert EU law into UK law at the point of departure, including all EU-derived rights and protections for workers. Parliament would subsequently “be able to pass legislation to amend, repeal or improve any piece of EU law it chooses”, but the manifesto offers no hints about specific employment law reforms that might ensue.
The Conservatives would not repeal or replace the Human Rights Act 1998 while Brexit is underway, but would consider the UK legal framework once the process of leaving the EU has concluded. This leaves open the possibility that they would resurrect previous plans under David Cameron’s government to replace the Human Rights Act with a “British Bill of Rights”.
As might be expected, the Conservatives allude to the topical issue of the “gig” economy. The Conservatives point to the ongoing review of employment practices that they have commissioned from Matthew Taylor. While not pre-empting his report with any specific commitments, the manifesto says that a new Conservative government “will act to ensure that the interests of employees on traditional contracts, the self-employed and those people working in the ‘gig’ economy are all properly protected”.
On a related topic, the Conservatives do not appear to be currently proposing further reform of zero-hours contracts (on top of the prohibition of exclusivity clauses in such contracts already implemented).
The Conservative manifesto makes no mention at all of employment tribunal fees, despite recent criticisms from the Justice Committee and the Women and Equalities Committee, among others, that fees have eroded access to justice.
With regard to discrimination, the Conservatives promise to ‘transform how mental health is regarded in the workplace’, one aspect of which would involve extending protection under the Equality Act 2010 to mental conditions that are episodic and fluctuating. More generally, the Tories pledge to get a million more people with disabilities into employment over the next decade.
The Conservatives appear to indicate they would extend the gender pay gap reporting regime by requiring companies with more than 250 employees to “publish more data on the pay gap between men and women”. There were rumours that the Tory manifesto would include mandatory race pay gap reporting, but it merely says they will “ask large employers to publish information on the pay gap for people from different ethnic backgrounds”. This suggests a voluntary system rather than a legal duty (at least initially).
The Conservatives would review the application of the Modern Slavery Act 2015, focusing on the exploitation of vulnerable adults and children for their labour in the UK and around the world.
Although it does not go into detail, the Conservative manifesto includes two significant commitments on workplace family rights:
- A new statutory entitlement to leave for carers (this is likely to be a right to take up to a year’s unpaid leave for workers whose family members require full-time care).
- A new right to child bereavement leave (possibly up to two weeks).
The Conservatives also plan to take steps to improve the take-up of shared parental leave (SPL) and introduce measures to assist parents and carers in returning to the workplace after taking time out to look after children or support elderly relatives. Another commitment in the manifesto is the extension of the right to request unpaid time off for training to all employees (which currently applies only to employers with 250 or more staff).
One of the early announcements of Theresa May’s premiership was a pledge that employees should be represented on company boards. This has not emerged in the Conservative manifesto as a full-blown legal requirement to appoint worker directors, but it does state that the law would be changed to require listed companies to implement one of the following measures:
- Nominate a director from the workforce.
- Create a formal employee advisory council.
- Assign specific responsibility for employee representation to a designated non-executive director.
The Conservatives would also consult on how to strengthen corporate governance for privately owned businesses and introduce a right for employees to request information on the future direction of their company (“subject to sensible safeguards”).
A new Conservative government would also:
- Legislate to make executive pay packages subject to strict annual votes by shareholders. Require listed companies to publish the ratio of executive pay to broader UK workforce pay.
- Investigate share buybacks, with a view to ensuring businesses cannot use them to inflate executive pay artificially.
With regard to the national minimum wage (NMW) and the national living wage (NLW) (which is essentially a premium on top of the NMW for those aged 25 or over), the Conservative manifesto focuses on the latter. It confirms the NLW would be increased to 60% of median income by 2020 and then subsequently raised in line with median earnings. (Notably, the manifesto makes no mention of equivalent increases for the other rates of the NMW).
Finally, one significant omission from the Conservative platform is any mention of further reforms in relation to trade unions and industrial action. Apparently, they have decided that the recent changes in the Trade Union Act 2016 are sufficient for the time being, which will no doubt disappoint the 50 or so Tory MPs who earlier this year called for tougher anti-strike laws in response to the Southern Rail dispute.
Labour’s manifesto claims that a Conservative Brexit would deregulate the UK economy and weaken employment protection. A Labour government would drop the Great Repeal Bill and replace it with an EU Rights Protections Bill that would ensure there are no detrimental changes to workers’ rights or equality law as a result of Brexit.
The Labour manifestos also makes clear that the Human Rights Act would remain in place and the party would preside over any watering-down of the freedoms guaranteed by the European Convention on Human Rights.
Labour has several pledges in response to the gig economy and “bogus self-employment”. They propose to:
- Set up a dedicated commission (led by legal and academic experts with industry and trade union representation) to modernise the law around employment status with new statutory definitions.
- Shift the burden of proof so that “employee” status would be assumed unless proven otherwise.
- Impose “punitive fines” on employers not meeting their responsibilities.
- “Extend the rights of employees to all workers”.
Labour would clamp down on zero-hours contracts through two measures:
- An outright ban “so that every worker gets a guaranteed number of hours each week”.
- A further right for those who work regular hours for 12 weeks or more to have a regular contract reflecting those hours.
This would restrict employers from hiring people on short-hour contracts (a recently reported example being Santander placing staff on “one hour a month” contracts).
Labour’s proposals on the gig economy and zero-hours contracts are part of a broader 20-point plan for rights at work, which would be overseen and enforced by a new Ministry of Labour. This includes, for example:
- “Give all workers equal rights from day one” (it seems the word “worker” is used colloquially here rather than referring to legal status, since there are no rights applicable to workers that require a qualifying period). Assuming this policy would apply to employees, the key rights affected would be unfair dismissal, redundancy and maternity pay.
- Ban unpaid internships (it is unclear exactly what this would entail as a large proportion of interns probably already have “worker” status, at least, entitling them to claim the minimum wage).
- Amend the Agency Workers Regulations 2010 to abolish the “Swedish derogation” – the provision that allows employment agencies to pay workers in between assignments to avoid them acquiring rights.
- Reverse the 2014 changes to TUPE (the Transfer of Undertakings (Protection of Employment) Regulations 2006).
- Abolish employment tribunal fees.
Labour say they would “enhance” disability discrimination rights under the Equality Act, which they would also amend (along with the Gender Recognition Act 2004) to ensure better protection for transgender people. This would be done by changing the protected characteristic of “gender assignment” to “gender identity” and removing other outdated language such as “transsexual”. Labour would also reinstate protection against third-party harassment and give statutory rights to “equality reps” (whatever they may be).
Labour would create a “civil enforcement system” to ensure compliance with the gender pay reporting requirements, which would most likely involve empowering the new Ministry of Labour to investigate and fine companies that fail to publish their pay gap. The Labour manifesto is unclear on whether the party would implement race gap reporting requirements. It states that black and Asian workers suffer from a “massive pay gap”, which Labour would close by “introducing equal pay audit requirements on large employers”.
Labour say they would work with businesses to ensure they fully respect the provisions of the Modern Slavery Act.
Labour’s proposals in the area of work and families 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.
In addition, Labour say that they would strengthen protections for women against “unfair redundancy” and extend the time limit for them to bring an employment tribunal claim. This pledge has its origins in recent calls by the Women and Equalities Committee for a German-style system of enhanced protection for pregnant women and new parents for a specified period, during which they could only be made redundant in defined circumstances.
Labour would create four new public holidays – St George’s Day, St Andrew’s Day, St David’s Day and St Patrick’s Day – which would be in addition to statutory annual leave entitlement. The Centre for Economics and Business Research has estimated that the cost to the economy would be £9.2 billion a year.
The Labour manifesto promises legislation “to reduce pay inequality by introducing an Excessive Pay Levy on companies with staff on very high pay”. No further details are given, but media reports have suggested firms could be charged a 2.5% levy on earnings above £330,000 and 5% on those above £500,000. In the public sector, Labour propose to roll out a maximum ratio of 20:1 between the highest and lowest paid, applicable both to public sector employers and companies bidding for public contracts.
So far as the minimum wage is concerned, Labour propose to raise the NMW to the level of the NLW, so it would stand at around £10 an hour by 2020. They would extend this to all workers aged 18 or over and increase prosecutions of employers evading the minimum wage.
Finally, on “collective” labour issues, Labour predictably promise a plethora of strongly pro-union reforms, based on the premise that “the most effective way to maintain good rights at work is collectively through a union”. For example, Labour would:
- Repeal the Trade Union Act 2016 and “roll out sectoral collective bargaining”.
- Review the rules on trade union recognition and enforce all workers’ rights to union representation at work.
- Only award public-sector contracts to companies that recognise unions.
- Guarantee unions a right to access workplaces so they can speak to members and recruit new ones.
- Legislate to permit online balloting for industrial action votes and union elections.
These commitments are mostly stated in very broad-brush terms, but would clearly amount collectively to a watershed transformation of the UK’s legal framework for industrial relations.
The passionately pro-EU Liberal Democrat manifesto sets out a range of detailed priorities for the Brexit negotiations, including “defending social rights and equalities”.
Recognising that many important statutory protections are currently based on EU law, the Lib Dems “will fight to ensure that these entitlements are not undermined”. They would also preserve the Human Rights Act intact and oppose any attempt to withdraw from the European Convention on Human Rights.
The Liberal Democrats refer to the forthcoming Taylor report and make a broad commitment to modernise employment rights to make them fit for the age of the gig economy. They promise to “stamp out abuse of zero-hours contracts” by:
- Creating a formal right to request a fixed contract.
- Consulting on introducing a right to make regular patterns of work contractual after a set period.
- The Liberal Democrats also pledge to abolish employment tribunal fees.
Commitments on equality rights in the Lib Dem manifesto include:
- Guaranteeing the freedom to wear religious or cultural dress.
- Extending protection for gender reassignment explicitly to cover gender identity and expression.
- Outlawing caste discrimination.
The Liberal Democrats promise to build on the gender pay gap reporting rules by also requiring large employers “to monitor and publish data on gender, BAME and LGBT+ employment levels and pay gaps”.
In relation to the Modern Slavery Act, the Liberal Democrats would strengthen companies’ responsibility for supply chains, focusing on good practice in tackling modern slavery. Key Lib Dem policies on family rights include:
- Making SPL, paternity leave and flexible working “day one” rights.
- Introducing an additional “use it or lose it” month of SPL to encourage take-up by fathers.
On boardroom remuneration, the Lib Dems are pledging to require binding public votes by board members on executive pay policies and oblige larger employers to publish data on the ratio between top and median pay. In addition, they would encourage employee ownership by giving staff in listed companies with more than 250 employees the right to request shares, to be held in trust for the benefit of the workforce.
So far as the NMW and the NLW are concerned, the Lib Dem does not focus on them but rather on setting a “genuine” living wage: they would establish an independent review to consult on how to do this across all sectors. The Lib Dems would require larger employers to publish the number of people paid less than the living wage.
The Green Party manifesto includes a pledge to start trialling a universal basic income and “reduce the gap between highest and lowest paid”. The NMW would rise to £10 by 2020 and the age bands would be removed.
Among other things, the Greens promise to phase in a four-day week (with a maximum of 35 hours), abolish zero-hours contracts, remove the cap from national insurance so the wealthiest pay more and “end the gender pay gap”.
The UKIP manifesto focuses on the need to “protect workers’ rights once we have left the EU”. UKIP would enforce the NMW and NLW and reverse cuts to number of inspectors, “tighten up” rules on zero-hours contracts and “severely” limit their use, encourage businesses to fund job placements for older people and enforce laws protecting workers against age discrimination.
Other UKIP policies include:
- Creating one new bank holiday on “independence day” (23 June – the anniversary of the EU referendum).
- Bringing forward legislation requiring employers to advertise jobs to British citizens before they offer them overseas.
- Ensuring employers are legally free to choose to hire a young unemployed British person under the age of 25 ahead of a better qualified or more experienced foreign applicant.
Finally, UKIP would ban the wearing of the burka and niqab in public places.