UK employers will be able to sidestep burdensome obligations to offer staff guaranteed working hours and pay if they have a deal in place with a trade union, under the government’s new workers’ rights legislation.
Government amendments to its flagship employment rights bill create a potential carve-out from the intended ban on “exploitative” zero-hour contracts where there is a written collective agreement between the employer and one or more independent unions.
The changes could create a strong incentive for employers in low-wage sectors to enter collective bargaining arrangements with a union, given widespread concern about the complexity and practical difficulty of applying the new rules. They were published early on Wednesday among more than 200 amendments to the workers’ rights legislation.
“It’s a very powerful incentive to have a union [recognition agreement],” said Michael Ford, a KC in employment law who had called for the change. He had raised concerns that the rules would be practically unworkable in some sectors, and could potentially backfire on workers with caring responsibilities that meant they were unable to commit to regular hours.
The employment bill encompasses a swath of broader changes to strengthen union rights. The amendments set out more details of measures making it easier for unions to access workplaces and win collective bargaining rights with employers — including through digital access — and make it quicker and simpler to take strike action.
A right to a contract reflecting workers’ regular hours is one of the key measures in the bill, aimed at bolstering security for low-paid workers whose hours and earnings often fluctuate heavily from month to month, making it hard to budget or borrow for a mortgage.
The intention is to require employers to offer workers a contract reflecting their regular working pattern; to give them reasonable notice of shifts; and compensate them when shifts are cancelled at short notice. The amendments published this week made it clear the provisions would include agency workers, although precise details are still to be decided.
Employers have said they support the underlying principle of offering workers more security. But they add that the new requirements are very difficult to reconcile with the seasonal or unpredictable nature of demand in many sectors, such as increased retail work before Christmas, ice cream parlours being dependent on the weather, and supply teachers covering for unexpected illness.
Because of these concerns, key details of the proposals — including which workers it will cover and how their regular hours will be assessed — have not yet been decided. Instead, provisions that already run into dozens of pages give ministers powers to decide details in later regulation.
Caspar Glyn KC, chair of the Employment Lawyers Association, said the provisions as drafted were “inordinately complex”, and “practically unworkable”, as well as near-impossible for individual workers to enforce at a tribunal.
“It’s the most unwieldy thing I’ve ever seen in employment law,” said Darren Newman, an employment lawyer and consultant. The opt-out for employers that reached agreement with a union “makes sense”, he added, noting that local authorities employing low-hours workers in schools and elsewhere were among those that could already have agreements in place.
In order to win a carve-out, a collective agreement would need to contain “terms that expressly exclude” or “expressly replace” the new duties or rights, as well as incorporating these terms in workers’ contracts and notifying them in writing.
Nicola Smith, director of policy at the Trades Union Congress, said the union umbrella body welcomed the change, which was an opportunity for employers “to recognise the benefits of collective bargaining”, and go beyond minimum requirements of the legislation.
