Other Individual Rights

Introduction

In addition to making some minor changes regarding the ability to get SSP and influence an employer’s tipping policy, measures about public sector outsourcing, levelling up, and enforcement have the potential to be hugely impactful.

 

What's Included?

Statutory Sick Pay: removal of waiting period and lower earnings limit etc (Clauses 8 and 9)

  • Makes SSP payable from day 1, thereby amending the existing regime where SSP is not paid until day 4
  • Makes SSP available regardless of how much you earn, thereby abolishing the current requirement to earn at least £123 per week

Policy about allocating tips etc: review and consultation (Clause 10)

  • Requires employers to consult their own staff, or their trade union or other representative, before drafting their mandatory tips policy
  • A requirement that the tips policy be reviewed at least every 3-years, and to consult again when doing the review
  • Enforcement via the existing s.27N Employment Rights Act 1996 with just and equitable compensation up to £5,000

Dismissal (Clauses 19 to 22)

Covered in detail elsewhere

Public sector outsourcing: protection of workers (Clause 25)

  • Establishes the power to introduce secondary legislation to protect public sector workers from less favourable treatment after being outsourced.
  • The same power allows for the levelling-up of the supplier’s existing staff (where appropriate) thereby addressing the issue of the 2-tier workforce.

Right to statement of trade union rights (Clause 45)

  • requires new starters to be given a written statement saying that they can join a trade union.
  • Gives the Secretary of State power to make separate regulations to set out other information about trade union rights which must be included.
  • Enforcement via the same as the existing provisions on the Statement of Particulars of Employment

Protection for taking industrial action (Clauses 59 and 60)

  • These clauses bring UK law into line with its international obligations by providing detriment and dismissal protections for workers taking official industrial action. This follows the recent Supreme Court decision of Mercer.
  • It provides remedies in relation to both past action, and for any attempt to deter future action.
  • Workers benefit from extended protections against detriment
    • Protections apply even where the trade union repudiated the action itself
    • The burden of proof is on the employer to show its sole or main purpose o Enforced in the usual way
    • Compensation to be set by the tribunal on a just and equitable basis, which can include reductions for contributory fault
  • Employees benefit from extended protections against unfair dismissal
    • Enforced in the usual way

Enforcement of labour market legislation (Part 5)

  • Introduces an obligation on the Secretary of State to take responsibility to enforce specific such as those relating to employment agencies, working time regulations, national minimum wage, modern slavery and gangmasters. There is a power to expand the list in the future but only in relation to the rights or entitlements of employees or workers; the treatment of employees or workers; requirements, restrictions or prohibitions on employers; or trade unions, employers’ associations, industrial action or labour relations.
  • The mechanism for this is a single enforcement body which will have delegated authority to take that action
  • It will have important investigative powers such as the ability to enter premises to search and seize documents. This includes certain powers under the Police and Criminal Evidence Act 1984 such as search, arrest and suspect interviews.
  • An advisory board will be established to direct these activities, prepare and implement 3-year plans, and report annually on its activities. Members will be appointed in equal numbers from trade union representatives and employer representatives and will also be assisted by independent experts
  • Public authority employees can delegated these powers where appropriate
  • An enforcement regime of ‘Labour Market Enforcement Undertakings’ is to be introduced which identifies to the employer the areas of its activity which is of concern and the action expected to correct that. LME undertakings can be in place up to 2 years or until the employer is discharged from it.
  • A failure to comply with the relevant legislation, or to honour an LME Undertaking can result in enforcement through the civil courts via LME Orders. A failure to comply with an LME Order can result in criminal proceedings.
  • Any attempt to obstruct this process can also result in criminal sanctions.
  • Individual officers of companies can be held personally liable for the criminal law sanctions as can partners in other business types including trade unions.

 

What's not included

  • Any mechanism for electing workers’ representatives to consult on the tips policy.
  • Any extension of TUPE rights to workers and not just employees.

 

Comment

Some of these provisions rely on the introduction of secondary legislation to address the details. We, therefore, must assess whether and when those regulations are laid before Parliament. The creation of the single enforcement body finally takes forward proposals that have existed for several years. As ever, however, that body’s effectiveness depends substantially upon being properly resourced. That information is yet to be addressed, but personal liability for individuals operating businesses will assist that function significantly.

The government’s ‘Next Steps to Make Work Pay’ document also sets out its ambitions for various issues affecting individuals directly including surveillance at work, a single status for workers, the ban on unpaid internships, changes to the area of self-employment, and a review of TUPE. There therefore remains much work to be done.

 

 


Full Briefing: The Employment Rights Bill