Before the election Labour announced that they were committed to “Securonomics”. The term, which is yet to catch on, was intended to encapsulate giving working people security in their day-to-day lives. Labour promised to set out the ways in which this would be done within the first 100 days of Government. Today, at 11am and within those first 100 days, the  Employment Rights Bill (ERB) was presented. The ERB makes 28 different proposals relating to employment rights as such how do they stack up against Labour’s manifesto pledges?

Unfair Dismissal:

Promised: Right not to be unfairly dismissed from day one coupled with the employer’s right to operate a limited probationary period.

ERB: Unfair dismissal as a day one right, with a nine-month probationary period. Quite how the probationary period will work is a matter of significant interest: perhaps an “unfair dismissal lite” approach during the period. The actual mechanism will be governed by regulations, rather than statute.

Parental and Paternity Leave & Sick Pay:

Promised: Day one right to parental and paternity leave as well as sick pay on first day of illness.

ERB: As promised.

Flexible Work

Promised: The right to work flexibly will be a day one right.

ERB: Provides for a day one right to request flexible working which can only be refused on one of the prescribed grounds already in the ERA and where it is reasonable for the employer to refuse on that/those grounds (previously there was not a requirement for the rejection to be reasonable).

Fire & Re-hire

Promised: Fire and re-hire to be abolished. Businesses to be able to restructure in order to remain viable, if genuinely no alternative, but by following a proper process, with effective remedies against abuse.

ERB: This is addressed by way of introducing a new automatically unfair reason; namely where the reason (or principal reason) for the dismissal is that the employee did not agree to a proposed variation of contract or if they were dismissed in order to allow the employer to employ someone else or re-engage the same employee under a varied contract, to carry out substantially the same duties. However this will not be the case where the employer can show that the variation was an attempt to mitigate financial difficulties which were likely to affect its’ ability to carry on the business.

Plainly this will provide fertile ground for dispute on definitions and applications.

Zero-Hour Contracts

Promised: Banning “exploitative zero-hours contracts”. Giving workers the right to a contract that reflect the number of hours they regularly work over a twelve-week reference period. Reasonable notice of any change or cancellation and compensation.

ERB: Sets out a requirement that employers to make a guaranteed hours offer to workers after the end of every period, where such an offer is defined as being one which sets out days and times when the employer will make work available, or a working pattern, up to the offered number of hours. The mechanics of the new right to guaranteed hours is set out over 8 sections (the last three concerned with claims, time limits and remedies). There then follows provisions setting out the right to reasonable notice of a shift, a cancellation or a change of shift. Prohibits exclusivity clauses in zero-hours contracts – there may be scope for argument as to whether this is what the was intended in the manifesto. The whole issue takes up 27 pages…it is complicated stuff

The ERB will also establish a new enforcement agency, the Fair Work Agency, which will have jurisdiction to enforce rights, such as holiday pay, but will also be able to “support employers looking for guidance on how to comply with the law”.

Some manifesto commitments are, however, noticeably absent from the ERB. The Government has also, today, published a “Next Steps” document, which will outline future plans for meeting these commitments, including:

Employment Status: Merging the status of workers and employees: moving to two-tier employed and self-employed.

Right to Disconnect: Introducing a right to switch off, outside of working hours (akin to Belgium, Ireland and France).

Whilst employees will welcome the fact that key promises having been replicated in the draft legislation, there will now be a lengthy period of consultation and, following that, the final draft is unlikely to become law until 2026/2027. The rowing back on abolishing fire and rehire suggests that some movement to placate employers is possible. Watch this space!

The Bill can be read here.