Following secret negotiations between business confederations and GMB, CWU, Prospect, Unite, USDAW, UNISON, and the TUC, the government has U-turned on its manifesto commitment to introduce day-one rights against unfair dismissal. Instead, it will reduce it from two years to six months, using primary legislation to do so, making it harder for future governments to reverse. This change brings the qualifying period for unfair dismissal claims back to the length that it was in 1975 when it was introduced in the 1975 Employment Protection Act. In doing this, the labour movement has secured joint public endorsement from UK business institutions, along with additional concessions such as removing the 12-month earning cap on unfair dismissal claims.
While not all of the affiliated unions were in favour of this move (though Unite are so far the only ones to voice strong public criticism- others do not want to admit they were not in the room) the logic that swayed enough of the big players- GMB, UNISON, and USDAW -was that it was the only way to get the Employment Rights Bill through the House of Lords and break the current ping-pong deadlock (caused by the Lords unconstitutionally blocking multiple manifesto commitments). While many Conservative peers are still expected to vote against the Bill, Liberal Democrats and crossbenchers are now expected to vote in favour after the Bil clears the Commons on the 8th of December. This was thus the only palatable way to ensure that the legislation would receive Royal Assent before 2026; not doing this would have meant having to use the Parliament Act to overrule the Lords – pushing Royal Assent into 2026 and further delaying implementation of the Bill’s provisions when we are already sixteen months into Labour’s term of office.
This is why some trade unions brokered their own compromise. Make no mistake, if a majority of the affiliated unions did not want this change, then the government would be committed to continuing with the Bill in its initial form, and to eventually using the Parliament Act. Many (if not all) of the affiliated unions will have industrial campaigns already planned on the basis of the new legislation coming into effect now and in the next few months, such as the change to industrial action ballot thresholds and statutory recognition thresholds. Equally, many will want to be able to advance their industrial interests while Labour is still in government, something that may not be he case in three years’ time, so their impatience is understandable. Ultimately, the most important thing for most trade unions are laws that make them stronger, not those that empower individual workers. Indeed, day-one protections against unfair dismissal have never had unilateral support in the trade union movement, and it was evident that the government’s original proposal of a nine-month statutory probation period was going to allow employers to easily dismiss staff. Trade union pragmatism wins out once again.
However, there are serious consequences and questions arising from this salvage job, and it may end up being myopic. Firstly, it is egregious and ludicrous in equal measure that the Lords have essentially been able to unconstitutionally defeat a manifesto commitment from a government holding a landslide majority. This was not about applying parliamentary scrutiny – the Lords’s obstructionism was rooted in a straightforward class-based objection to two things: Labour’s attempts to reform the House of Lords, and organised labour becoming more powerful (as shown by the Lords also voting against the removal of the 50% turnout threshold for industrial action and trade union political funds being changed to opt out).
The government has had its weakness in the Lords permanently exposed. It is evident that the government was naïve for neither creating enough peers to give it a majority in the upper chamber, nor pursuing plans for more thoroughgoing House of Lords reform. Bevan was correct that the ‘only important political power now possessed by the Lords is the power of delay’, but, as Labour governments do not come around too often, delays can be a fatal block on the enaction of social democracy. Moreover, one fears that anti-Labour peers may take encouragement from this victory for any future legislation they deem too radical.
In addition to the government looking weak, its remaining employment rights reforms are also weakened by this concession. Day-one protections against unfair dismissal made labour a more stable commodity; without this, less scrupulous employers can employ staff on fixed-term contracts of six months-minus-one-day in length, have a one-day break, then re-employ the same staff as a way of preventing them from accruing full employment rights. This is a collective issue for the trade union movement, as employers who undercut others tend to win out eventually.
It is worth remembering that the only period in British history where trade union density consistently remained above 40% was the period from 1945 to 1979, and that a key component of this was the commitment to full employment (the contrasting example is the sudden decline in union density in the 1920s, after the First World War caused as similar spike). Since the economic conditions for full employment no longer exist, legislation is one of only two means of reducing the power of employers over workers. The other is stronger trade unions rights (such as improved immunities, opt-out collective agreements, and further industrial action freedoms). The inability to force day-one rights through the Lords, following the earlier retreat from further consultations on changing the industrial relations legislative framework in March, indicate that this government is not capable of delivering either. Social democracy in the UK will be the poorer for it.
Alex Maguire is a trade union officer.
[Photo credit: By Mike Quinn, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=76361185]