The King’s Speech 2024 and Employment Law
After all the upheaval and campaign slogans of the election, we finally have the King’s Speech – and with it, a clear(er) idea of Labour’s plans in office. Front and centre of its legislative agenda is the new Employment Rights Bill, which promises to be the most radical shake-up of workplace regulation for several decades.
The key employment law headlines in the King’s Speech are:
Day one rights:
A number of existing rights will be available to employees from day one in the job – including sick pay, parental leave and, most controversially, the right not the be unfairly dismissed.
Reducing the qualifying period is not, in itself, controversial – from 1999 to 2021, employees only required a year’s service to bring a claim. Removing it altogether, however, could cause more of an issue – and is likely to substantially increase the overall number of claims that the already-overburdened Tribunal service must deal with.
In its briefing note, the Government seems to have recognised this risk and caveats the policy change by saying that it will ensure that “employers can operate probationary periods to assess new hires”.
How this will work in practice remains to be seen. The legislation will need to be very clear on what constitutes a probationary period, how it is to be assessed and what the maximum length of it can be. Without clear, tightly-drafted statutory language, this extended right could end up being academic if employers are able to avoid liability by simply dressing-up and otherwise-unfair dismissal as the failure of a probationary period.
Zero hours:
Exploitative zero hours contracts will be banned and workers on such contracts will have a right to more stable hours.
It has been widely noted since the policy was outlined in the Labour manifesto that this is unlikely to be an outright ban on zero hours contracts; it is only those contracts that are said to be exploitative that face prohibition. What exploitative means in this context, however, has not been set out.
The briefing note refers ending “‘one-sided’ flexibility” and ensuring that a “baseline level of security and predictability” is established in all jobs. This may refer to a ban on zero hours contracts that require workers to be available without guaranteeing them work or pay. There is also reference to ensuring workers have proper notice of shift changes and compensation is provided for cancelled or curtailed shifts, which should create some certainty for zero hours workers.
There will also be a new right for workers to have a contract that reflects their normal hours. This is likely to be assessed by reference to the hours actually worked in a 12-week reference period. In the run-up to the election campaign, Labour clarified that this will be implemented by employers being required to offer a contract that reflects such hours, which the employee may it, rather than such a new contract being imposed or implied.
Fire-and-rehire:
The twin “scourges” of fire-and-rehire and fire-and-replace will be brought to an end through legal reforms and a new code of practice.
This is a policy that was doubtless inspired by the P&O scandal, during which 800 employees were dismissed. However, to date no detail has been given as to how these sorts of abuses will be curtailed going forward. Sadly, neither the King’s Speech nor the Government’s briefing notes sheds little light on the policy.
There are, however, two clues:
Firstly, unlike zero hours contracts, there is no reference to a ban, so it is unlikely that the concept of fire-and-rehire will be abolished altogether.
Second, the briefing notes make reference to providing “effective remedies” – which may mean that reform will be more focussed on what damages can be claimed (potentially some form of aggravated or exemplary damages) rather than restraining the practice itself.
Trade union reforms:
The process for union recognition will be simplified and the minimum service level legislation will be repealed.
From what saw in the manifesto and during the campaign, simplifying the recognition process is likely to be a relatively technical change to the number of workers voting in a recognition ballot. At present, at least 40% of those eligible must vote – that threshold will be abolished.
The Government will also repeal The Strikes (Minimum Service Levels) Act 2023, which allowed some businesses and organisations to require that employees work during strikes to ensure that minimum service levels were maintained. The manifesto had also suggested that the Trade Union Act 2016 would also be repealed, although (curiously) that is not specifically mentioned in the Government’s briefing note.
What is missing, however, is the right to access that was heralded in the manifesto. That change would see unions acquiring a right to enter the workplace for the purpose of organising and recruiting. The Government’s briefing note makes a veiled reference to ensuring that workers have “a reasonable right to access a union within workplaces”, but this does not sound like the union right to access that was anticipated.
Other policies identified in the Government’s briefing notes to keep an eye on are:
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