New rules on strikes, gender pay gap reporting and the minimum wage
The government’s employment law agenda, unveiled in yesterday’s Queen’s speech, has two distinct strands: greater restrictions on strike action, and modest increases in individual employment rights.
The speech confirmed plans outlined in the Conservative party’s election manifesto to “reform trade unions and to protect essential public services against strikes”. Details on these proposed new laws provided by the new Secretary of State for Business, Sajid Javid, since the election indicate that all strike ballots will require a turnout of at least 50 per cent of those eligible to vote, alongside the existing requirement for a majority of those who actually vote in a ballot voting to strike.
The bar will be set even higher if a proposed strike affects “essential public services”, which are likely to include health, transport, fire services and schools. In such a case the strike will need the backing of 40 per cent of all union members eligible to vote.
The government has also proposed lifting the ban on employers using agency workers to cover striking employees, and tightening rules around paid time off for union duties for union representatives. These changes, alongside yet to be defined plans to “tackle the intimidation” of non-striking workers, may reshape the existing dynamic between unions and employers.
It is interesting to note, however, that the recently called off strike action by rail workers would not have been blocked under the government’s proposals. When balloted, RMT members supported strike action by four to one, on a 60 per cent turnout.
While the media has focused largely on the government’s proposals for collective bargaining, reform of individual employment rights is also likely. A ban on the use of clauses in zero-hours contracts that require employees to work exclusively for one organisation is already in place. Proposed by the outgoing coalition government, the ban came into force earlier this week under a provision in the Small Business, Enterprise and Employment Act 2015.
Other government commitments include:
- implementing obligations within the Act requiring all companies employing more than 250 individuals to publish their gender pay gap
- ensuring people working 30 hours a week on the National Minimum Wage pay no income tax, and keeping the minimum wage under the control of the Low Pay Commission in order to maintain its independence from party politics
- increasing free childcare to 30 hours a week for working parents of three and four year olds. This will apply only in England and Wales, although the Scottish government could opt to implement similar measures.
In addition to these proposals, there is the possibility of a ‘Brexit’ (the whole or part of the UK exiting the EU). The Queen’s speech confirmed Conservative plans to hold an in-out referendum on membership before the end of 2017. There is also the prospect of the Human Rights Act 1998 being replaced with a Bill of Rights, which would have implications across the employment law field.
A complicating factor is the increased pressure to devolve employment law to Scotland, a move supported by the SNP and the Scottish TUC. Devolution of substantial powers in this area could result in the creation of two distinct employment law regimes within the UK, with potentially significant long-term repercussions.
Powers over the management of employment tribunals, including tribunal fees, are already set to appear in a new bill implementing the Smith Commission’s proposals on further Scottish devolution. This raises the possibility of tribunal fees being greatly reduced or even abolished in Scotland, while remaining in place in England and Wales.
Any significant change to the fees regime south of the border now looks unlikely even though this was one of the most controversial aspects of the previous government’s legislative programme, with reform supported by most opposition parties.
Lynne Marr is a partner in the employment team at law firm Brodies
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