Will the employment rights bill be passed by Christmas? Well, the chances are slightly improved after six leading business groups published a temperature-lowering letter on Monday that said parliament, which in this instance means the blockers in the House of Lords, should get on with it.
The employers, note, are still unhappy about the issue that triggered the most recent revolt by Conservative peers and a few cross-benchers: the removal of a cap on compensation claims for unfair dismissal. But they’re more worried that further delays would jeopardise their negotiating victory last month, namely the government’s U-turn on rights guaranteeing workers protection against unfair dismissal from day one of employment. A six-month qualifying period was adopted instead, with the blessing of the TUC, which was similarly motivated by trying to get the bill over the line quickly.
The Lords is still free to object and add amendments again, of course. But there is now a general mood that it would be seriously out of touch if it did so.
However, it would be a mistake to think that royal assent will mark the moment when the lobbying ends and everybody, employers and unions alike, can concentrate on implementation. In fact, the reverse is true. The extraordinary feature of the employment rights bill is that many critical details have been deliberately left to be resolved in secondary legislation.
Take the introduction of guaranteed hours contracts. This flows from the laudable aim of tackling abuses of zero-hours contracts. But it’s not clear how a worker’s right to guaranteed hours, having worked those hours regularly during a reference period, would operate in practice.
What is the threshold for a “low hours worker”? Does it mean as few as eight hours a week or, say, as many as 30? How regular is “regular work”? How long is the reference period? Employers warn of unintended consequences if they are disincentivised from offering extra casual hours to existing employees. Unions warn of the danger of creating loopholes or leaving ambiguities. The point is that the primary legislation leaves key details to be worked out later.
Other items on the employer groups’ list of “concerns”, aside from the compensation system in unfair dismissal tribunals, include issues related to “seasonal and temporary workers, thresholds for industrial action, and the practical application of union rules”. They are all mini-battles that also lie ahead.
The business secretary, Peter Kyle, welcoming the employers’ letter, assured all sides he’s keen to see “the spirit of consensus and cooperation” continue, emphasising that “we are committed to extensive consultation on [the bill’s] detailed implementation and in secondary legislation”. Yes, that’s the right message while the ping-pong between the Commons and Lords is unresolved. But “extensive” consultations, one assumes, means lengthy consultations, so this is all going to take a while even after the bill passes.
One can take the view that this is how industrial relations should be improved – by thrashing out on-the-ground details once high-level principles have been passed by parliament. Maybe, but it also all feels as if the government, in its rush to meet the manifesto commitment to introduce legislation within 100 days of taking office, left too many hard details undone. The secondary legislation will be when the arguments properly start.
