Workers’ rights: are we nearly there yet?

Back in May, as we waited to see whether the Queen’s Speech would include the repeatedly promised Employment Bill, I noted on this blog that the Government had no fewer than 12 outstanding key pledges on workers’ rights, some of which had been outstanding for some time. Seven of the 12 pledges had featured in the December 2019 Conservative manifesto and, as we approach the third anniversary of that general election, now seems a good time to review what progress has been made since May.

Two of the 12 pledges – the red ones in the chart above – have been abandoned. In July, the Government announced that it will not be progressing the pledge, first made in February 2018, to legislate to improve the clarity of the ’employment status’ tests. And BEIS officials have made it very clear that, despite the establishment of an Advisory Board on Pregnancy & Maternity Discrimination in late 2021, the Government will not be producing the Action Plan to make it easier for pregnant women and new mothers to stay in work that it promised in July 2019. Which may or may not be why BEIS expelled Maternity Action from the Advisory Board after just one meeting.

As noted on this blog in October, five of the pledges – the orange ones in the chart – are currently being progressed through Government bills masquerading as Private Members’ Bills (PMBs), introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs in June. And there is enough time for most if not all of these PMBs to reach the Statute Book before the end of the current parliamentary session in April or May next year: all five have already had their Committee stage, and are set to complete their passage through the House of Commons by early February, at which point they will go to the House of Lords.

However, Ernest Hemingway warned us not to confuse movement with action. There is no guarantee that each of the PMBs will reach the Statute Book – the necessary parliamentary time remains in the gift of ministers, who could pull the plug at any point, should they decide that it would be politically advantageous to them to hold the reforms back as ready-made manifesto commitments for a May 2024 general election. There are already suggestions that, as things stand, Rishi Sunak faces the prospect of going into that general election with “precious little to say”.

Furthermore, while Stuart McDonald’s Neonatal Care (Leave and Pay) Bill would amend the Employment Rights Act 1996 and the Social Security Contributions and Benefits Act 1992 to require the Secretary of State to make Regulations creating a statutory right to paid neonatal leave, and Wendy Chamberlain’s Carer’s Leave Bill would similarly amend the Employment Rights Act 1996 to require the Secretary of State to make Regulations creating a statutory entitlement to unpaid carer’s leave, Dan Jarvis’s Redundancy Protection (Pregnancy and Family Leave) Bill would only give the Secretary of State the power to make Regulations extending the scope of the existing MAPLE Regulation 10 protections. The Secretary of State would remain free to not use that power (or to do so only at a time of his or her choosing).

Since Dan Jarvis’s PMB was introduced in June, it has emerged that Ministers are proposing to include, in the necessary Regulations, a six-week qualifying period for the protection that would be extended to new parents after their return to work from a period of leave. However, this proposal – which would set a worrying policy precedent – has not yet been publicly set out in writing, and the Minister somehow failed to mention it during both the Second Reading and the Committee stage debates.

During the latter debate, on 2 November, Dan Jarvis assured MPs that BEIS are consulting members of the above-mentioned Advisory Board – that is, the Advisory Board from which BEIS expelled Maternity Action – about this qualifying period (and the PMB’s impact assessment, published in August, wrongly implies that at least some such consultation had by then already taken place). However, it is not at all clear why such consultation, on an important point of policy, should be confined to the members of the Advisory Board, and be conducted behind closed doors. But that’s the kind of thing that happens when you’re a backbencher and you introduce a PMB that you didn’t write yourself, and over which you have no control.

A sixth Government bill masquerading as a PMB – Yasmin Qureshi’s Employment Relations (Flexible Working) Bill – would amend the Employment Rights Act 1996 to make a number of welcome but relatively minor reforms of the administrative process underpinning the existing right to request flexible working (such as allowing employees to make two flexible working requests in any 12-month period, instead of the one currently allowed). But it would not make the right to request flexible working a Day One right – as the Government proposed in its September 2021 consultation paper – let alone deliver the Government’s December 2019 manifesto pledge to make flexible working the default. It seems we have to await the Government’s response to the 2021 consultation to learn whether ministers plan to make the right to request a Day One right, and during the PMB’s Second Reading debate on 28 October the minister could say only that the Government will bring forward that response “shortly” (which may or may not be more imminent than ‘in due course’).

As for the other four outstanding pledges, they remain, well, outstanding. Evaluating the Shared Parental Leave scheme remains “an important part of the policymaking process”, according to the Minister, but it is now more than five years since the evaluation was first announced to MPs, and we are still waiting for the evaluation report. Apart from anything else, this means that the 2019 BEIS/DWP Maternity & Paternity Rights Survey – part of a series that has been conducted since the late 1970s, and which was last conducted in 2009/10 – remains under wraps, despite the survey fieldwork having been completed by November 2019. Because, for reasons known only to BEIS ministers, the Survey report cannot be published until the Shared Parental Leave evaluation report is published.

There are no signs of the Government introducing the new right to request a more predictable and stable contract that was first promised in February 2018, despite the Minister confirming as recently as late October that the Government “remains committed” to this pledge. Similarly, there are no signs of any progress on the December 2019 pledge to “make it easier for fathers to take paternity leave”. And there’s been no real news on the promised Single Enforcement Body since June 2021.

Furthermore, these are only the most significant commitments on workers’ rights that the Government has made, and which remain outstanding. For example, on 24 November, a coalition of organisations wrote to business secretary Grant Shapps, urging the Government to act on its March 2022 commitment to remove the ‘family worker exemption’ from the National Minimum Wage Regulations.

In December 2019, the Tories sought to portray themselves as the workers’ party, with a raft of broadly welcome manifesto commitments on workers’ rights. In 2024, they may well want to do so again. So watch this space.

About wonkypolicywonk

Wonkypolicywonk is a policy minion, assigned wonky at birth, who has been lucky enough to work for two of the very best MPs in the House of Commons, and for Maternity Action, Working Families, Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.
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