396: What’s coming up in employment law?

Workers unite to challenge new anti-strike laws

The High Court has granted permission for a judicial review of the regulations that permit the supply of agency workers during strike action to replace striking workers. Three sets of legal proceedings were launched in September 2022 in response to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 which came into force on 21 July 2022. One challenge, brought by 11 trade unions, is being coordinated by the Trades Union Congress (TUC), and separate challenges have also been brought by Unison and NASUWT. All have been given permission to proceed. The unions will argue that the regulations are unlawful as a result of lack of consultation by the Government, and because they violate fundamental trade union rights under Article 11 of the European Convention on Human Rights.

Industrial reaction: Government take legislative action to combat the impact of strikes

The controversial Strikes (Minimum Service Levels) Bill 2022-23 has now passed its second reading in the House of Commons. This legislation will allow the Government to make regulations to prescribe minimum service requirements for strikes in certain specified services, including health, transport, education, fire and rescue and border control. Where a union calls a strike in one of these services, the employer would provide a work notice identifying the workers that are reasonably necessary to meet the minimum service levels.

The relevant union will then lose its immunity from legal action if it fails to take reasonable steps to ensure the compliance of union members identified in the work notice. The Bill would also amend unfair dismissal rights, so that any worker identified in a work notice who takes part in the strike, to an extent not permitted in the notice, will lose their automatic protection from dismissal. Concerns have been raised about the lack of an effective mechanism for a union to challenge a work notice and the fact that much of the detail will be left to be set out by the Government in regulations, potentially with limited democratic scrutiny.

The Government axe Good Work plans to create a single enforcement body

The Government has confirmed that it is not currently progressing the introduction of a single enforcement body to protect the employment rights of vulnerable workers in order to focus efforts on improving the efficiency of existing bodies. The proposal was to merge the Gangmasters and Labour Abuse Authority, the Employment Agency Standards Directorate, and HMRC’s national minimum wage enforcement. It was first set out in the Government’s Good Work Plan in December 2018, and was expected to feature in the shelved Employment Bill, with the aim of tackling labour exploitation and improving enforcement of the national minimum wage, holiday pay and sick pay.

Mass redundancies by P&O causes uncertainty over legal status of seafarers

In March 2022, P&O Ferries dismissed 786 seafarers as redundant without notice or consultation and replaced them with lower-paid agency workers. The Insolvency Service subsequently confirmed that criminal charges could not be pursued against P&O Ferries because it was not clear whether the dismissed seafarers were protected by collective redundancy legislation.

The key legislation applicable to the seafarers is the Seafarers’ Wages Bill, introduced to Parliament in July 2022 which entitles ports to refuse access to ferry services that do not pay seafarers at least the national minimum wage whilst in UK waters. However, there are no provisions in the Bill to clarify which aspects of UK employment law apply to seafarers. The TUC has recently written to the Department of Transport requesting amendments to the Bill to clarify, in particular, the employment status of seafarers and their rights on redundancy.

The number of flexible apprenticeships is growing…

On 7 January 2023, amending regulations came into force to expand the number of flexi-job apprenticeships that can be undertaken in England (Apprenticeships (Miscellaneous Provisions) (England) (Amendment) (No 3) Regulations 2022). This new type of apprenticeship was introduced in England on 6 April 2022 with the aim of overcoming barriers to apprenticeships in sectors with varied employment patterns, such as the creative and construction sectors where work may be short-term or project based. Flexi-job apprenticeships can be completed by entering into a series of arrangements, each lasting at least three months and totalling a minimum of 12 months. Fourteen additional apprenticeship standards have now been approved, with roles in healthcare, adult care, customer service, IT, civil engineering, and construction.

New government policies aim to facilitate progression in the workplace

On 13 December 2022, the Department for Work and Pensions (DWP) published a policy paper Helping people secure, stay, and succeed in higher quality, higher paying jobs. This is a response to a 2021 report of the In-Work Progression Commission which set out barriers to progression faced by those in low-paid jobs, including a lack of skills, logistical challenges, and motivational barriers. The Government’s latest policy paper states that its aim is to increase productivity and prosperity through attracting more people into work, enhancing workers’ skills, and increasing earnings.

Proposed measures include improving support for disabled people and workers with other health conditions, such as ‘adjustment passports’; encouraging employers to support older workers to stay and progress in the labour market; and improving the quality of jobs through workforce training, wage increases, investment, and clearer career options. Many of the policies included have already been announced previously. However, further actions are expected in the Health and Disability White Paper which is due to be published this year. The DWP will also continue to engage with employers and representative bodies to explore the feasibility of developing a standard measure for progression.

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