Election: How will Employment Law be affected, and what do the parties propose?

At the time of this article’s publication, the election results are yet to come in. However, polling has suggested a majority in favour of Labour.

Whatever this materialises or not, any change of government is sure to bring a host of changes to employment law.

So, in this article, Employment Expert Chris Dobbs outlines what each party proposes when it comes to employment law and how employers may be affected.

Conservatives

The conservative manifesto has very little in the way of employment issues. However, it’s worth noting that, under Conservative government, we have seen a wave of recent changes to equality legislation, statutory leave entitlements, tipping allocation and flexible working.

Most of the changes they’ve made recently have either been relatively uncontroversial or have been designed to try and enshrine either existing EU case law to allow continuity, or to assert the preferred British version (such as holiday calculations).

Going forwards, the Conservatives have only really outlined four employment law related points in their manifesto:

• Changes to the fit note system,
  • Putting more emphasis on professionals other than GPs,
• Minimum service legal agreements to go ahead,
• Cut national insurance to 6% from 2027,
• Abolish national insurance for the self-employed.

As you have probably deduced, the four points outlined above don’t signify major change for employer or HR professionals. The first two points are continuations of existing policies and the last two are more tax than employment law.

Liberal Democrats

According to the current polls, the Liberal Democrats may perform reasonably well in the election and there is a non-zero chance that they could be the official Opposition.

If that’s the case, there will be a certain amount of Parliamentary time given to issues they want to raise and some of these could feature:

• A new kind of status called ‘dependent contractor’,
  • This seems to be a way to try and fill the gap for contractors who are heavily dependent on a single employer,
• Flipping the burden of proof in status cases,
  • So, employers will have to demonstrate a genuine self-employed relationship rather than the employee having to prove they are a worker/employee,
• Increase minimum wage by 20% for those on zero-hours contracts to compensate for irregular working,
  • Some people may argue here that an increase in pay is unnecessary for people who have chosen to take on a zero-hours contract for flexibility reasons,
•  Making Statutory Sick Play a Day One right and remove the earnings limit,
  • Nothing too controversial here, but may require a change to your procedures,
  • It would simply be a statutory entitlement and so would supersede contracts which refer to the period of service requirement,
• Double Statutory Maternity and Paternity Pay to £350 per week,
  • Limited practical impact here as of course this is administered through payroll and often recoverable by the employer,
• Introduce ‘Adjustment Passports’ to record reasonable adjustments and their effect – alongside simplifying the Access to Work Scheme,
  • This seems to be a travelling document that an employee could use to document adjustments that have been introduced and their effect,
  • However, RAs are designed to suit a particular disadvantage suffered by a disabled staff member in a particular environment; so this may not work perfectly in practice,
• Make parental leave and pay Day One rights,
  • This again may simply require a review of policy and procedure,
• Introduce a new Equality Act protected characteristic around being a carer,
  • This is incredibly vague, it may simply be a case of tightening up the ability to claim associative discrimination due to being carer; or something more.

Labour

At the time of this article, a Labour majority is looking likely. There was some talk about watering down the proposals as we had initially heard them some months ago, but I think this remains a relatively significant set of proposals.

Labour promises draft legislation within 100 days of being elected, but also to be the party of both worker and business and consult with both. Not sure how they intend on that working!

Contracts and Work Patterns

• Ban the use of ‘exploitative’ zero hours contracts,
  • It’s unclear what an ‘exploitative’ contract is by Labour’s definition but I suspect part of it will roll into…
• Contracts which reflect hours worked over a 12 week reference,
  • This is probably suggesting a degree of guaranteed time, but in a much longer reference period than the current day/week,
  • So, employers will potentially have to outline a certain number of hours that an employee on a zero-hours contract/rotor will be given over a three-month period,
• End the use of fire and rehire practices,
  • I suspect Labour will actively discourage fire & rehire and make the practice a little more difficult, but not outright ‘ban’ it,
• Presumption of flexible working,
  • Its strongly suggested that this will be an extension of what is currently a right to request,
  • If this was tightened even slightly, it could put the duty back on the business to justify why it could not offer,
  • This may well mean a change to that list of statutory reasons for rejecting a flexible working request.

Unfair Dismissal

Labour proposes Day One rights for:

• Statutory Sick Pay
• Parental Leave
• Unfair dismissal

Unfair dismissal is the big one here.

Providing Day One rights for unfair dismissal could potentially remove the need for an employee, whose dismissal is not automatically unfair, to have two years of continuous service to bring a claim.

This means that for redundancies, capability and conduct dismissals, all employees could then become subject to processes and procedures including potentially ACAS Codes. There would, therefore, be no more dismissal on notice just because they only have 18 months service, for example.

In theory, particularly for conduct and capability, we would generally suggest employers to carry out at least a condensed version of the process anyway. Yes, it would come at an expense and time commitment, but it should not drastically change how things are done.

What are your options as employer?

Labour have suggested that these unfair dismissal rights would remain subject to probationary periods.

Detail is vague, and still subject to consultation, but one option here would be to make an employee’s failure to pass a probationary period a new valid reason for dismissal, or at least a limiting factor when it comes to court mandated rewards. 

Of course, statutory guidance on what amounts to a fair probationary period is crucial here.

Trade Unions

Labour seem to prioritise a shift towards encouraging unions.

The effect of all these policies would be to make it easier for workplace to unionise and for unions to gain recognition even where the workforce is relatively apathetic:

• A ‘Fair Pay Agreement’,
  • This is in effect sectoral bargaining in the Adult Social Care Sector, especially when it comes to pay,
• Scrap the Strikes (Minimum Service Levels) Act 2023,
  • Scraps the minimum service level imposed on those wishing to strike,
• Make it easier for unions to gain recognition by removing the 40% eligible vote requirement
• Introduce the right for trade unions to access workplaces for recruitment and organising purposes

Learn more

This article is a summary of Chris Dobbs’ latest employment webinar, a somewhat deviation from his usual ‘employee lifecycle’ sessions. You can watch back the webinar in its entirety here.

In addition, you can sign up to our newsletter here to receive updates on changes to government and employment law.

Chris’ next session will be held on Wednesday 7^th August, where he’ll be returning to the employee lifecycle and breaking down considerations in redundancies. Subscribe to our newsletter to receive an invite.

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