Posted: 17/06/2015
Now that the dust has settled on the Conservatives’ surprise majority win, and David Cameron has promised to use his majority to implement his manifesto in full, it’s time to assess what the next five years have in store.
The Queen’s Speech announced a number of proposals that will impact on employment law.
First on the legislative agenda is likely to be the Conservatives’ promise to make 'significant changes' to strike laws.
Currently a strike can be called by a simple majority of those voting in a ballot and there is no minimum turnout requirement. By introducing a minimum 50% turnout requirement for strike ballots, the Conservatives intend to end 'undemocratic and disruptive' strikes. The presumption being that those who do not vote in a strike ballot are against the action.
For 'essential public services' such as health, education, fire and transport, the bar will be set even higher. Strikes will need the support of at least 40% of all those entitled to take part in the ballot as well as the majority of those who actually vote.
The mandate for each ballot will also be time-limited to prevent strikes called on ballots conducted 'years ago'.
The Trades Union Congress (TUC) General Secretary, Frances O’Grady, says the reforms will make strikes close to impossible. For large and disparate workforces, this could indeed be true.
If the sole aim was to prevent undemocratic strikes, modernising the ballot system by, for example, allowing electronic notices and voting, might have been a less divisive way to address the issue. Instead, the proposals look set to seriously weaken the unions.
A challenge to these reforms is inevitable. The TUC has warned of unofficial wildcat strikes or 'mass sickies'. A legal challenge based on employees’ freedom of association rights under Article 11 of the Human Rights Act 1998 (HRA 1998) could also be on the cards.
While these reforms appear to have the support of many employer bodies, they could put the Conservatives on a collision course with Europe. This may not be ideal at a time when the Conservatives plan to renegotiate EU membership and enact a British Bill of Rights.
The Queen’s Speech suggests that David Cameron may be getting cold feet about the most controversial of his manifesto pledges – the repeal of the HRA 1998. Having previously promised a draft bill to replace HRA 1998 with a British Bill of Rights and Responsibilities within 100 days, the Conservatives appear to have downgraded their commitment to launching a consultation process on these reforms.
The aim of the Conservatives’ British Bill of Rights is to sever the link between the UK courts and the European Court of Human Rights (ECtHR), leaving the UK courts as the ultimate arbiter of human rights and ECtHR decisions as advisory only.
If successful, the repeal of the HRA would resound in many areas of employment law, including claims involving industrial action, discrimination, privacy or freedom of expression/association issues. However, with serious opposition brewing in the Commons, the Lords, the devolved powers and even amongst David Cameron’s own backbenchers, the HRA 1998 reforms may be under development for some time.
The Conservatives have however committed to a referendum on the UK’s continued membership of the EU by the end of 2017. The implications of a 'Brexit' for UK employment law could be huge, potentially affecting a broad range of employment rights from TUPE through to discrimination and much in-between.
The Government has confirmed that it will follow the recommendations of the Low Pay Commission to increase the National Minimum Wage. We can expect to see a rise to £6.70 in 2015 on course for £8.00 by 2020.
However, while it will encourage employers who can afford it to pay the living wage, there will be no obligation to do so.
A new Immigration Bill has been promised to help crack down on illegal working. The Bill will also include a new offence prohibiting employment agencies from recruiting abroad without advertising their vacancies in the UK.
In advance of the Queen’s Speech, the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) was passed which makes exclusivity clauses in zero hours contracts unenforceable. The Conservatives appeared to go one step further in their manifesto, promising to eradicate exclusivity in zero hours contracts. Presumably this involves introducing regulations which were proposed in the Government’s consultation in March 2015 to prevent rogue employers avoiding the ban on exclusivity clauses by, for example, blacklisting those who work elsewhere. It remains to be seen whether this will (if implemented) genuinely tackle the abuse of vulnerable zero hours workers.
The Conservatives have also promised to fight for equal opportunity by getting more disabled people into work and promoting gender equality. However, other than implementing the Liberal Democrats’ amendment to SBEEA 2015 no later than 26 March 2016, which requires companies with more than 250 employees to publish the difference in pay between male and female employees, there is, as yet, no detail on how this will be achieved.
Although not included in the Queen’s Speech, as part of the ’Big Society’ initiative, employees of public sector and large private sector employers have also been promised three days’ paid volunteer leave. Details of how this new leave will be funded and what activities would qualify for volunteer leave have not been published. Many employers remain concerned about how they will manage this additional leave.
Consistent with their promise to end red tape, the Conservatives do not envisage a huge raft of new employment legislation in their second term. Nonetheless, some of their key manifesto pledges could have significant implications for employment law if they go ahead, particularly the repeal of HRA 1998. It remains to be seen whether David Cameron’s slim 12-seat majority will be enough to deliver on this most contentious of promises in the face of significant opposition.
This article was published in New Law Journal in June 2015.
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