Labour Pains

Now that Boris Johnson has put his lockdown-busting partying behind him and just wants to “get on with delivering”, perhaps he and his Government will use next week’s Queen’s Speech to finally start delivering on some of their many outstanding promises to enhance workers’ rights.

We’ve known for some weeks that the Queen’s Speech is unlikely to include the repeatedly promised ‘Big Bus’ Employment Bill but, as noted previously on this blog, that doesn’t necessarily preclude there being one or more smaller legislative vehicles delivering some of these outstanding policy pledges. Because, as the following chart shows, some of these policy pledges have been outstanding for some considerable time.

In November 2017, then BEIS minister Margot James promised the Women & Equalities Committee of MPs that BEIS would complete an evaluation of the Shared Parental Leave scheme – introduced in 2015 and already known to be failing – in 2018. That evaluation was underway by 26 April 2018 but, four years on, it is still stuck in the bowels of BEIS. Presumably, officials with wet towels wrapped around their heads are working night and day to come up with a form of words that convincingly presents a woeful take-up rate of just 2% as ‘broadly in line with our target of 25%’.

In February 2018, in its response to the July 2017 Taylor Review of Modern Working Practices, the Government pledged to tackle the blight of zero-hours contracts and other insecure work by introducing a right to request a more predictable and secure contract. This pledge was then repeated in the Conservative manifesto (see pp 37-39) for the December 2019 general election, and in the subsequent Queen’s Speech as part of the promised Employment Bill (see pp 43-44).

In October 2018, following an evidence-gathering and consultation process kicked off by his predecessor Sajid Javid as long ago as August 2015, then business secretary Greg Clark promised new legislation to ensure tips go to workers in full. This pledge was then repeated in the December 2019 Queen’s Speech, as part of the promised Employment Bill, and was bigged up by BEIS minister Paul Scully as recently as September 2021.

In December 2018, the Government’s Good Work Plan included a promise to legislate to improve the clarity of the employment status tests (a need identified by the 2017 Taylor Review). And it reiterated the February 2018 promise to “legislate to give all workers the right to request a more stable contract”.

In July 2019, in direct response to the 2016 findings of the Equality & Human Rights Commission’s landmark investigation into pregnancy & maternity discrimination in the workplace, and an August 2016 recommendation of the Women & Equalities Committee of MPs, the Government pledged to extend the period covered by the existing redundancy protections. In 2021, both the Women & Equalities Committee and the Petitions Committee urged ministers to get on with implementing this outstanding policy commitment. However, Maternity Action, the TUC, Maria Miller MP and others have repeatedly suggested that more fundamental reform is needed.

At the same time, the Government committed to establishing a Taskforce of employer and family representative groups to develop an Action Plan to make it easier for pregnant women and new mothers to stay in work. No such Taskforce has been established, but in the summer of 2021 BEIS established a Pregnancy & Maternity Discrimination Advisory Board to “consider the information and guidance available on pregnancy and maternity discrimination, to ensure it continues to be relevant and is effective in supporting employers and employees”. Intended to meet “on a quarterly basis until March 2023”, to date the Board has met only once, on 23 September 2021, and in March 2022 the campaign group Maternity Action – winners of the 2022 Halsbury Award for Rule of Law – were banned from further attendance by a senior BEIS official.

In December 2019, the Conservative general election manifesto (see pp 37-39) promised a consultation on making flexible working the default, and falsely claimed that the Government has already acted on the (still outstanding) July 2019 pledge to reform redundancy protections. The flexible working consultation was eventually held between 23 September and 1 December 2021, but it was clear from the consultation document that the Government has abandoned any idea of making flexible working the default.

The general election manifesto also promised the creation of a single enforcement body (to “crack down on any employer abusing employment law”), repeated the February 2018 pledge to introduce a right to request a more predictable and stable contract, pledged a new right to one week of (unpaid) carer’s leave, and promised legislation to introduce neonatal leave and pay. All four of these pledges were then repeated in the December 2019 Queen’s Speech, as part of the promised Employment Bill (see pp 43-44).

The pledge to introduce neonatal leave and pay was later reaffirmed in the Government’s March 2020 consultation response (and explicitly funded in the March 2020 Budget), and the promise to create a new right to one week – one week! – of unpaid carer’s leave was reaffirmed in the Government’s September 2021 consultation response.

The December 2019 general election manifesto also committed the Government to “look at ways to make it easier for fathers to take paternity leave”. However, there is no evidence of ministers or officials having done any such ‘looking’ since 2019, and certainly no policy proposals have been forthcoming.

In July 2021, a Government Equalities Office consultation on sexual harassment concluded with the Government committing to “introduce a duty requiring employers to prevent sexual harassment” in their workplaces, along with explicit protections from third-party harassment.

Boris Johnson does indeed need to get on with delivering. And, as the Times reported yesterday, those ‘smaller legislative vehicles’ to deliver (some of) the outstanding policy commitments that would have been in the now shelved Employment Bill don’t need to be government bills. They could be Government-backed Private Members’ Bills, conveniently endorsed by one or more of the ‘parrots in the echo chamber’ (© Barbara Keeley) of the above-mentioned BEIS Advisory Board on Pregnancy & Maternity Discrimination, from which BEIS has otherwise inexplicably expelled the incompliant Maternity Action.

Three weeks ago on this blog, I suggested – with a little help from the great Tracey Thorn and Ben Watts – that ministers have shelved their long-promised Employment Bill (again). And on Friday a (rather thinly evidenced) story in the Financial Times indicated that the Bill is indeed unlikely to appear in next month’s Queen’s Speech (on 10 May).

However, as alluded to in my reworking of EBTG’s “Missing”, the withdrawal from service of the ‘Big Bus’ Employment Bill does not mean the Queen’s Speech will not contain one or more smaller, standalone legislative vehicles carrying specific ‘reforms to our employment framework’. So, what might be aboard these compact legislative minibuses?

In December 2019, when the Employment Bill was born, ministers promised it would:

• Create a new, single enforcement body, offering greater protections for workers.
• Ensure that tips left for workers go to them in full.
• Introduce a new right for all workers to request a more predictable contract.
• Extend redundancy protections to prevent pregnancy and maternity discrimination.
• Allow parents to take extended paid leave for neonatal care.
• Introduce a new legal entitlement to one week’s leave for unpaid carers.
• Make flexible working the default unless employers have good reason not to.

We already know, from the BEIS consultation that ran between 23 September and 1 December last year, that the Government has abandoned the last of these commitments, despite it having been an explicit manifesto commitment (hence the blatantly dishonest title of the BEIS consultation document). There may still be some minor changes to the ‘right to request’ regime, but these could be implemented by tweaks to the secondary legislation (i.e. the 2014 Regulations). So, no legislative minibus.

Despite some snail-paced progress towards the creation of a single enforcement body – in June last year the Government published its response to the consultation it had conducted between July and October 2019, and this reaffirmed the (manifesto) commitment – it is clear BEIS is nowhere near ready to proceed with the necessary legislation, even if Boris Johnson is still on board (a very open question). So, no legislative minibus on this route, either. The TUC will be (secretly) pleased about this.

However, in recent months ministers have come under intense pressure from Conservative MPs such as Luke Hall to deliver on the commitment to introduce neonatal leave and pay, as affirmed in both the Government’s March 2020 response to its 2019 consultation and the March 2020 Budget, which earmarked the necessary funding to deliver the new entitlement from April 2023. And, when pressed during Prime Minister’s Questions on 17 November last year to “bring forward a standalone Bill”, rather than wait for the Employment Bill, Boris Johnson assured the SNP’s David Linden that:

One way or another—I will get back to him on the exact way—we will legislate to allow parents of children in neonatal care to take extended leave, giving them more time during the most vulnerable and stressful days of their lives.

So, I think we can expect a legislative minibus on neonatal leave and pay in the Queen’s Speech. Which may well also have on board the promised new right to one week of carer’s leave. Such a legislative minibus would be universally welcomed, and accordingly would sail through Parliament without difficulty.

Similarly, since 2020 ministers have come under sustained pressure from both the Women & Equalities Committee, chaired by Caroline Nokes, and the Petitions Committee, chaired by Labour’s Catherine McKinnell, to deliver on the July 2019 commitment to extend the period covered by the existing Regulation 10 redundancy protections.

That commitment was made in response to the findings and recommendations of the EHRC’s 2015-16 inquiry into pregnancy and maternity discrimination in the workplace, and an August 2016 recommendation by the Women & Equalities Committee, then chaired by Maria Miller. In their February 2021 report on the gendered impact of the Covid19 pandemic, the Women & Equalities Committee urged ministers to deliver on the July 2019 commitment “in this Parliamentary session”, i.e. by May 2021. And, noting the Government’s failure to do that, in September 2021 the Petitions Committee’s second report on the impact of the pandemic on pregnant women and new parents concluded:

We echo our recommendation from [our July 2020 report] that the Government should legislate as soon as possible to introduce its planned extension of redundancy protections for new and expectant mothers. It must clarify a timeframe for doing this, and, if there is not sufficient parliamentary time to consider a full Employment Bill before the end of the year, the Government should immediately bring forward a short Bill specifically to implement these protections.

So, there could be another legislative minibus, on redundancy protections, in the Queen’s Speech. However, this one would not be universally welcomed, and could face a very rough ride through Parliament, not least because the Labour Party, campaign groups such as Maternity Action and Maria Miller MP have repeatedly said that more meaningful reform is needed. Indeed, such a Bill would be a bit of a gift to shadow ministers.

This means we can’t rule out the possibility that ministers have decided to renege on the July 2019 commitment (or, at least, to leave it rusting away in the bus garage for now). Which might explain why BEIS ministers have recently chosen to kick Maternity Action off their Pregnancy & Maternity Discrimination Advisory Board, the creation of which was another part of that July 2019 commitment – to “establish a Taskforce … to develop an Action Plan on what steps Government and other organisations can take to make it easier for pregnant women and new mothers to stay in work” – and which met for the first (and so far only) time in September last year. So, while the Government has a shiny new Action Plan on Animal Welfare, six years on from the EHRC research it still has no Action Plan to tackle pregnancy and maternity discrimination at work.

The pledge to ensure that tips left for workers go to them in full is an even older one, having first been made in October 2018, following a BEIS consultation that ran from 2 May to 27 June 2016. And it was reaffirmed in the Government’s September 2021 response to that consultation. Given that then business secretary Sajid Javid kicked off this somewhat bizarre sequence of review, consultation, pledge and consultation response as long ago as August 2015, it’s not entirely clear how much priority ministers give to this particular commitment, but I will not be totally surprised if we find a legislative minibus with this on board in the Queen’s Speech. Or if we don’t.

As for the promised new right to a more predictable/stable contract – which dates from the Government’s February 2018 response to the Taylor Review, and was repeated in the 2019 Conservative manifesto – I suspect that one is still in a box marked ‘too difficult’ on a shelf in a room hidden away at the back of Kwasi Kwarteng’s bus garage.

Anything else? Well, in July last year a Government Equalities Office consultation on sexual harassment concluded with the Government committing to “introduce a duty requiring employers to prevent sexual harassment” in their workplaces. As with neonatal leave and pay, a legislative minibus carrying such a preventative duty would be widely welcomed, and would most likely sail through Parliament. And it would provide some cover for not proceeding with the July 2019 pledge on redundancy protections.

And let’s not forget that the 2019 Conservative manifesto included a pledge to “look at ways to make it easier for fathers to take paternity leave”. There’s no evidence of ministers and officials having done any such ‘looking’ since 2019 – and their four-year evaluation of the chronically failing Shared Parental Leave scheme has yet to conclude – but maybe they will surprise us. And, again, this might explain why BEIS have booted Maternity Action off their Advisory Board.

Or perhaps ministers will finally act on the 2016 recommendations of the Equality & Human Rights Commission, the Justice Committee and the Women & Equalities Committee, and the April 2020 recommendation of the Law Commission, to extend the Employment Tribunal time limit.

Time will tell. Not long to wait now.