They Critique Because They Want it to Succeed, Warnings and Criticisms as a Desire for the ‘New Deal’ to Succeed
The warning from lawyers and MPs about expanding workers’ rights, which in turn will curb the power of medium and large businesses and corporations, comes from a genuine and grounded concern. These corporations have extensive resources and wealth that even governments struggle to control or need to actively compete with to retain relevance and influence. If Labour is going to erase fundamentally unfair practices like fire and rehire and zero-hours contracts, then Labour must put in place deterrents and ensure that the Employment Rights Bill 2024 is watertight. Discussing the expansion of employment rights must first require a discussion of prior issues: the pressure on employment tribunals, the arguments for expanding workers’ rights, why expansion is worth the risks, and whether the concerns are well founded.
The symptoms of a crumbling justice system are clear in employment law, contrary to popular belief. Caseloads in employment tribunals have risen by 18%, and current government assessments predict another 15% rise as a result of the proposed reforms, coupled with widespread pre-existing delays in some parts of the country. To tackle the pressure on employment tribunals, Labour plans to create the Fair Work Agency (FWA). The Fair Work Agency will combine all current state enforcement agencies to simplify the system. It will assist employers who actively want to comply with the law and will grant the power to investigate employers who ignore the law. The idea behind the FWA is based on a critique of the current system, which is ‘fragmented and inefficient’. Bringing together all mechanisms for enforcement is a good starting point and should temper politicians’ and lawyers’ concerns. However, some counter-arguments suggest that the problem perhaps is not in state enforcement agencies but the current tools that the law has, employment tribunals and lawyers. Jon Pearce, a former employment lawyer turned MP for High Peak, suggested reforming hearings to judge-only. While it will be important for Labour to ensure that the FWA has all it needs to carry out its job properly, the focus should be instead on what happens when a claim makes it into the legal system.
To be fair to Labour, it is worth taking these risks to expand workers’ rights. The argument for this is convincing: stronger, more protected workers will be more productive and, in turn, grow the economy. Key provisions of the manifesto – to remove zero-hours contracts, ban fire and rehire, and repeal the Strikes (Minimum Service Levels) Act 2023 – are motivated by the belief in collective bargaining. Labour is reversing the damage and grievances caused by the Conservatives’ handling of workers during the 2023 winter of discontent. Strikes by the public sector were supposed to be a warning and a way for heads of state to see that whatever they were doing was failing. Instead, the response was one of whips, as evidenced by the introduction of the Public Order Act 2023 (to further police protest) and the Strikes Act 2023 (limiting the power of collective bargaining as workers lose partial control over the power to withhold their labour). The discontent of 2022-23 justifies a needed expansion of workers’ rights and, with a changing labour industry, the argument that the employee needs more protections. The government’s awareness of a workplace being quickly transformed must be evidenced with legislation.
Warnings on the issues with FWA enforcement are grounded. It is too old of a story to forget the contrast between ambitions and ideas contrasted with the harsh reality. The wish for stronger, more confident workers who work together to safeguard their interests and a government that encourages them to do so is contrasted with the ample potential for loopholes for employers who flaunt the law. It is important to distinguish employers that take an active role in protecting their employees against employers that only seek to exploit, damage, and disappear. All voices on the topic agree, however, that changes to the labour system are welcomed. The critiques and warnings should be seen as a response by thoughtful people who want to see these bills succeed.
By Daniel Akerele
