From ‘Fairness at Work’ to ‘Making Work Pay’: A Preliminary Assessment of the Employment Rights Bill – by Alan Bogg and Michael Ford KC

1. Introduction

We are both old enough to remember the last time when a new Labour Government with a significant majority embarked on a programme of labour law reform in 1998-1999. In the White Paper Fairness at Work (1998), the Government set its ideological course on social partnership, “modern companies”, and “regulating for competitiveness” (Regulating the employment relation for competitiveness). It reflected a view of the law as an instrument for achieving positive economic outcomes through technological and organisational innovation, and steering “modern companies” towards the high road to competitive success. This positive vision supported a bold legislative programme at that time: national minimum wage, Schedule A1 recognition procedure, and “family friendly” rights. Ultimately, it was a vision of law and legal change suffused with optimism. The evils of abuse of power, exploitation, lawless corporate behaviour, and conflict were not prominent in that glossy White Paper.

There is undoubtedly a shift in tone in the new Employment Bill. The Bill enacts many of the proposals in Labour’s Plan to Make Work Pay, the full implementation of which was promised in Labour’s Manifesto. While we do not have a White Paper – a casualty of Labour’s commitment to introduce legislation within 100 days – it was published alongside a document Next Steps to Make Work Pay (October 2024). In Angela Rayner’s foreword, the reforms will “raise the floor and end the race to the bottom that some compete based on low pay, low standards and insecurity” (3). We suggest that this represents a shift in the politics of labour market regulation from the heady days of 1997. In certain respects, it is a politics that is more tentative and pessimistic. The primary focus is on the government’s duty to tackle exploitation, abuse, unscrupulous employers and poor treatment of workers. The priority is to tackle bad work and to provide effective redress for wrongs. And, of course, 2024 is not 1997. Politics is timebound. Tony Blair had not inherited Brexit, the afterglow of a global financial crisis, and rising levels of global insecurity. Sometimes, pessimism is the wisest political disposition.

The pessimism of the politics should not obscure the radicalism and ambition of the Employment Bill. Indeed, it may be the most ambitious set of reforms since 1971. The Bill weighs in at nearly 150 pages. It is supported by Explanatory Notes over 100 pages. It is still very much a work in progress because much of the detail is to be provided in regulations and because in some areas there will be further consultations. Next Steps to Make Work Pay charts the next phase of legal reform once the Bill is enacted to implement the Plan to Make Work Pay, including reviews and consultations on parental leave, single “worker” status, TUPE and social value in public procurement. No area of employment and equality law is untouched. The focus on addressing exploitation and abuse of flexibility means that enforcement and collective rights have a much stronger prominence in this Bill than was the case in Fairness at Work, reflecting the commitment in the Plan to Make Work Pay to “empowering workers to organise collectively through trade unions” (p 14) This means that collectivism is likely to be a much stronger theme over this first term of a Labour Government than during New Labour’s first term.

In this preliminary assessment, we will focus our attention on four aspects: (i) zero hours contracts and guaranteed hours; (ii) day 1 rights for unfair dismissal; (iii) “fire and rehire” and collective redundancies; (iv) and selected issues in collective labour law. The legislation is a feat of ingenuity, a remarkable achievement in the time available to the drafters. Inevitably, with the luxury of an extra four days to reflect, we identify some weaknesses and difficulties in legislative design. We should not lose sight of the fact that this is a serious attempt to engage with some of the most difficult issues of labour market regulation.

In particular, we consider some specific issues concerned with the exclusion of agency workers and some self-employed workers from key protections; dangers of regulatory back-fire where the legal regulation might be difficult to apply in specific workplaces and sectors; and continuing problems around remedies and procedural delays in relation to collective redundancies and the new union access right.

2. Individual Protections Against Insecure Hours of Work

The Bill inserts new Chapters 2, 3, 4 and 5 in Part 2A of ERA, addressing insecure hours of work – and hence pay – by giving workers rights to (i) guaranteed hours (Chapter 2), (ii) reasonable notice of shift changes (Chapter 3) and (iii) payments for cancelled, moved or curtailed shifts (Chapter 5). All are enforced by individual applications to the employment tribunal (see ss 27BG, 27BM, 27BS), buttressed by standard provisions preventing an employer from dismissing or subjecting a worker to a detriment because the worker exercised the rights or brought proceedings against the employer based on them: see Schedule 1, inserting a new s.47H and s.104BA in the Employment Rights Act 1996 (ERA). Heralded in the Labour’s Plan to Make Work Pay as putting an end to “one sided” flexibility, ensuring all jobs provide a “baseline level of security and predictability”, banning “exploitative zero hours contracts” and ensuring everyone has a right to a contract which reflects the hours they regularly work, the provisions are bold, radical and novel. In accordance with Labour’s objective of tackling in-work poverty, they are not restricted to those engaged under zero hours contracts and envisage their extension to workers who have a low level of guaranteed hours or pay.

The provisions, and especially those on guaranteed hours, are daunting in their detail, length and complexity. No doubt this is in part because they are grappling with a very difficult problem and trying to devise rules applicable to the immense diversity in work arrangements, hours and pay. The provisions also need to forestall gaming strategies by employers. If there are legal analogues, it is in the existing legislation on working time, principally the Working Time Regulations 1998, or the intricate rules on a week’s pay in ERA. But the new provisions are probably more tortuous than these two combined, and some of the detail will have the most zealous lawyers anxiously mopping their brows and searching for a double espresso.

Who is Protected? It is a pre-condition of all the new rights that the individual is a “worker”, defined in accordance with s.230 of ERA: see s.27BA(3); s.27BI(1); s.27BO(1). This is a particular problem for those on zero hours contracts or arrangements – the very individuals the provisions are designed to protect – because the fact an individual works only intermittently or on a “casual” basis may mean they are not sufficiently subordinate while working to be a worker: see Uber v Aslam [2021] ICR 657 per Lord Leggatt at §91. Wide substitution clauses also frequently feature in “casual” contracts, often inserted to deny worker status, though their potency is diminished after Pimlico Plumbers v Smith [2018] ICR 1511. According to Next Steps, legislation on single worker status is still on Labour’s agenda. The new provisions inserted in Part 2A of ERA make that task even more salient, to ensure that the Bill does not miss its target and techniques of boundary manipulation do not undermine its protections.

A second problem is the exclusion of agency workers. All the provisions as currently drafted provide no protection to agency workers, defined by reference to that concept in the Agency Worker Regulations 2010 (s. 27BU(1)), even though such workers frequently work under zero hours contracts, are often low paid, suffer significant disadvantage in the labour market and often fail to receive the legal entitlements they do have – as shown by empirical work of the Resolution Foundation. Thus, an individual who works as an agency worker during the reference period is not a “qualifying worker” for the purpose of guaranteed hours (s.27BA(2)(e)), has no right to reasonable notice of shifts (s.27BK(2)), and is excluded from the entitlements to payments for cancelled, moved or curtailed shits (s.27BQ(1)). The extension of unfair dismissal rights to “day one”, considered below, gives employers a powerful incentive to use agency workers because such workers, typically, are not employees and hence have no right to claim unfair dismissal. The Bill contains a provision, in the new s.27BV, by which the Secretary of State can extend corresponding or similar provisions to those in Chapters 2, 3 or 4 to agency workers. The Next Steps document published on the same day states that the Government “will also consult to ensure that the Bill’s provisions on zero hours contracts are effectively and appropriately applied to agency workers” (§ 11). If the powers in s.27BV are not exercised, we can expect to see the elaborate edifice tumble into the yawning gap left open by the exclusion of agency workers.

(1) Guaranteed Hours. Some of the most extensive and difficult provisions are those on guaranteed hours, found in the new Chapter 2 of Part 2A of ERA. They operate by giving a “qualifying worker” a right to a “guaranteed hours offer” (GHO), meaning an offer from the employer to vary or enter into a new contract under which the employer is required to make work available to the individual in the future that reflects the number of hours the worker in fact worked during a “reference period” (s.27BA(1), s.27BB(1)). The worker will have the right to accept or reject the GHO during a “response period”; if they accept, they will henceforth work under a new or varied contract with the guaranteed hours (s.27BE). The worker may bring a complaint to the tribunal if, for example, the employer does not make a GHO or makes a GHO which does not comply with the statutory provisions (s.27BF-G). The tribunal awards compensation based on financial loss, subject to a statutory maximum (s.27BH).

The first important point to note is that a “qualifying worker” is defined in s.27BD(3) to include workers who are engaged on “zero hours contracts” or “zero hours arrangements”, both of which are defined in the new s.27BU(1). They also protect workers who have contractually guaranteed hours which fall below a specified minimum yet who in fact work more than their guaranteed hours in the statutory reference period: see s.27BA(3)(a)(ii) and s.27BA(3)(c). The specified minimum hours will be spelt out in regulations. The objective of this provision is to protect those who have a very low number of guaranteed contractual hours, a recurrent theme of all the provisions in this field. They also ensure that employers cannot evade the GHO duty by, for example, guaranteeing workers only two hours a week and contending that as a result they are not employed under a zero hours contract or arrangement.

The provisions are fiendishly complicated, There is an unfortunate historical precedent in the form of the labyrinthine provisions on lay-off or short time working now found in ss 147-161 of ERA, described in MacRae v Dawson [1984] IRLR 5 as “the despair of all who have been concerned with the interpretation of industrial legislation”. Exacerbating the complexity is that much of the detail remains to be fleshed out in regulations. Secondary legislation will define and elaborate many of the central statutory concepts, such as the length of the initial and subsequent statutory “reference period” (s.27BA(4)-(6)); how the “reference period hours” are to be calculated (s.27BA(2)(d)); how to assess whether a GHO “reflects” the number of hours worked in the reference period (s.27BB(4)); the conditions to be satisfied by a GHO (s.27BB(2)-(3)) and the timing, content, form and manner of the GHO (s.27BB(8); exceptions to the duty (s.27BD(5)); the length of the “response period” during which the qualifying worker can accept or reject the offer (s.27BD(7)); and the form and manner of the notice given by the qualifying worker (s.27BE8).

The provisions will need to be tested against hypothetical examples and current working arrangements to see how well they work in practice and to avoid unintended consequences. For example, suppose workers A, B and C accept GHOs, meaning that the employer owes a contractual duty to make work available to them reflecting the number of hours they actually worked in the past: see s.27BB(1). But now suppose there is an unforeseen sharp decline in the amount of work available. One potential response would be for the employer to dismiss A, B and C owing to the higher cost of retaining them. But the employer then risks claims that the reason why they were dismissed was their acceptance of the offer, a proscribed reason under new s.47H (workers and detriment) or s.104BA (employees and dismissal). So the employer may opt for the less legally risky strategy of reducing the hours of all the other workers who are still on zero hours contracts or arrangements, with unfortunate consequences for those workers. In the absence of a collective solution, the result is a zero-sum game in which the decline in work falls disproportionately on some workers (who, for very good reasons, may not want guaranteed hours). Collective action problems of this kind necessitate collective solutions, which is one of the key virtues of collective or workforce agreements.

This brings us onto a more general problem, of one size not fitting all workplaces and sectors. The case law on the entitlement to paid annual leave already provides examples of some of the diverse forms of variations of hours – term time working, zero hours contracts, weeks on and weeks off and so on – and some of the problems that arise in fixing current entitlements (in those cases, pay in respect of leave) as a function of normal remuneration earned during a reference period in the past: see Harpur Trust v Brazel [2022] ICR 1380, Russell v Transocean [2012] ICR 185. The Bill as drafted does little to recognise the need for sectoral adjustments, save in two respects. First, it permits the engagement of workers on temporary guaranteed hours through difficult provisions allowing the contracts to terminate on a “limiting event” where that is reasonable, such as where there is only a temporary need for the work (s.27BB); the Explanatory Notes give the example where a worker is providing cover for another worker on leave (§83). Second, s.27BD(5) allows regulations exempting the duty not to apply “in specified circumstances”, without further elucidation.

It is far from clear these provisions will sufficiently address the problems of applying a single model to very wide range of diverse workplace arrangements. There is another method which the Bill could draw upon. To address the problem of applying one set of fixed rules to all workers, the Working Time Regulations 1998 not only exclude some sectors from their scope (regulation 18) and alter the duties where this is necessary because of special circumstances (regulation 21); they also allow collective or workforce agreements to modify some of the duties (regulation 23). Permitting derogations from, or adjustments to, the new provisions by means of collective agreements could be a sensible means of enabling adjustments to the duties in those sectors where they are a poor fit or where they risk producing unintended consequences that actually exacerbate insecurity. Such a mechanism has the virtue of permitting flexibility, providing protection for vulnerable workers and strengthening unions’ voices at work in accordance with the Government’s commitment in Plan to Make Work Pay and Next Steps.

(2) Rights to Reasonable Notice of Shifts and Changes to Shifts. The Bill inserts a new Chapter 3 in Part 2A ERA, giving certain workers a right to reasonable notice of shifts that the employer requests or requires the worker to work and to reasonable notice of cancellations or changes in such shifts. Similar points can be made about these provisions as we have made in relation to the guaranteed hours provisions.

First, these provisions are also not restricted to those who work under zero hours contracts or zero hours arrangements, as defined in s.27BU. For example, they extend to workers who have some guaranteed work but whose contract does not specify the days or times when they must work (see s.27BI(1)(b)) or whom the employer requests to work at times other than those provided for in their contract (see s.27BI(2)). Consistent with the aim of addressing in-work poverty, the Bill envisages such workers will be those who are on low pay or who have a low number of guaranteed hours (s.27BI(5)).

Secondly, just like the provisions on guaranteed hours, these sections leave much of the detail to be fleshed out in regulations, such as the categories of workers of a “specified description” who are protected (see e.g. ss 27BI(1)(b), 27BI(2) and 27BI(5)) and the length of reasonable notice to be given of a shift, its change or cancellation (s.27BI(4), 27BJ(3)).

Thirdly, much thought will need to be given to how these provisions are to work in practice. For example, suppose an employer receives notice that X is sick and issues a request to everyone in the workforce, all of whom are on zero hours contracts or arrangements, to work X’s shift tomorrow. Or suppose the employer realises, late in the day it has made a mistake, needs someone extra to work a shift and issues a request to everyone. The definition of “request” extends to the position where an employer makes a request of multiple workers but does not need all of them to do the work: see s.27BK(3). The question of whether the request was lawful will turn on the protean concept of what was “reasonable”, a task in which the tribunal will only have the very limited steering from the presumptions in s.27BI(4) and s.27BJ(3), based on whether the notice was less than the specified amount of time, and the less than illuminating guidance in that Explanatory Notes that “What is ‘reasonable’ will depend upon all the circumstances of a case” (§143). Once more, to ensure the provisions are workable in the diverse shift arrangements operating across different workplaces there may be a role for derogations or adjustments to the duties by means of collective agreements, although the Bill as drafted contains no provisions permitting this.

(3) Right to Payment for Cancelled, Moved or Curtailed Shifts. The third set of provisions addressing insecure hours of work are set out in the new ss 27BO-27BT. They require employers to make a payment of a “specified” amount to a worker when it cancels, moves or curtails a “qualifying shift” at “short notice”: see s.27BO(1). Future regulations will explain what amount of time amounts to short notice, though it must not exceed seven days, and may explain when a notice is treated as having been given: s.27BO(6)(7), s.27BP(6). Regulations will also specify the statutory amount to be paid to the worker, which must not exceed the contractual remuneration payable for the lost shift or part of shift: s.27BP.

The definition of “qualifying shift” extends to shifts that workers are required to work, requested to work or that they suggest working (s.27BO). It also includes shifts worked by workers employed under zero hours contracts, zero hours arrangements or contracts of a “specified description” with some guaranteed hours but where, in broad terms, the shift takes place at a time not set out in the contract (see ss 27BO(2)(c) and 27BO(3)(4)). Once more, the aim is to protect workers who have low pay or low levels of guaranteed hours: see s.27BP(3).

A worker may present a complaint to the employment tribunal that an employer has failed to make a payment that is due under s.27BO(1), as well as for some related matters: s.27BS. The Bill does not contain a “series” provision to link failures to pay in the past, unlike s.23(3) of ERA on deduction from wages. In order to avoid multiple claims to the tribunal and to ensure the rights are effective in practice, there is much to be said for defining these payments as “wages” for the purpose of s.27(1), so that they are treated in the same manner as the other statutory payments listed in s.27(1) of ERA and in accordance with how the courts have treated the right to payments in respect of annual leave (see Revenue and Customs Comrs v Stringer [2009] ICR 985)

Chapter 4 exhibits similar themes to those we have identified in the previous two Chapters. A great deal of the heavy lifting is to be done by regulations, including important matters such as the “specified circumstances” in which the duty will not apply at all (s.27BQ(1)(b)) and as to which the Bill is silent. The extent to which they fit with the empirical operation of modern workplaces is unclear: where it is, derogation or adjustment could be affected by means of collective agreements.

3. Unfair Dismissal Rights from Day One

The Bill provides some clue as to how Labour will address the commitment it made in the Plan to Make Work Pay to make unfair dismissal a “day one” right while permitting “probationary periods with fair and transparent rules and processes”. But we will have to await regulations, and maybe case law, to see how this tension between the two objectives is to be resolved.

Enacting the first part of the commitment in the Plan to Make Work Pay was easy: clause 19 of the Bill gives effect to Schedule 2, which repeals s.108 of ERA in which the current two-year qualifying period is found and introduces a new s.108A in its place. The reform is long overdue. The initial qualifying period in the Industrial Relations Act 1971 was six months, two years is far beyond the periods which the ILO views as acceptable to acquire skills and experience under Article 2 of ILO Convention No. 158, on termination of employment (not ratified by the UK), and the common law of contract provides almost no protection against unjustified dismissal, exemplified by the questionable judgment in Edwards v Chesterfield [2012] ICR 201.

The new provisions neatly address the issue that an employee can be dismissed for the purpose of unfair dismissal if his contract of employment is terminated before he in fact started work under it: see Sarker v South Tees Acute Hospitals NHS Trust [1997] ICR 673. By virtue of the new s.108A(1) a claim of “ordinary” unfair dismissal cannot be brought if the employee “has not yet started work” on the effective date of termination. However, as regards the existing categories of automatic unfair dismissal, such as dismissals for whistleblowing and trade union reasons, the existing position is preserved, so that withdrawal of a job offer before work had started can still amount to a dismissal, triggering the right to claim unfair dismissal: see the new s.108A(2)-(4) and s.153A TULRCA in Schedule 2.

But the bigger question, of how Labour reconciles day one rights and dismissals in the probationary period, is left to regulations by the new s.98ZZA – which really is not about falling asleep. Three conditions are relevant. First, the regulations will apply to workers who are given notice of dismissal in the “initial period of employment”, itself to be determined in regulations: s.98ZZA(4). According to the Government in Next Steps, its preference is for nine months (para. 29). Second, by s.98ZZA(2) the reason itself, or the principal reason, must relate to the employee’s capability, conduct, inability to work without contravening a statue or some other substantial reason relating to the employee. The obvious intention is that the reason must be related to the individual employee and not be, e.g., a global decision to make redundancies: compare s.195 of TULRCA, on collective redundancies, defining a redundancy within that legislation as a reason “which is not related to the individual concerned”. Third, the regulations may lay down steps where the dismissal will be treated as fair – some sort of “light touch” dismissal procedure.

The first condition, on the “initial period of employment”, will need to address the position of the many employees, such as those on zero hours arrangements, who are engaged on repeated very short-term engagements under a series of micro, “spot” contracts. In the absence of an overarching umbrella contract, at the end of each engagement the contract is terminated, followed by another short-term contract, and another, and so on. The consequence is that there is a dismissal for the purpose of s.95 at the end of each mini-engagement. It is unclear how the provisions on an “initial period” or modified fairness rules will operate in relation to them. The Bill enigmatically refers to regulations treating two or more periods of continuous employment as a single period (s.98ZZA(5)(a), so perhaps the aim is to deem there not to be a dismissal at the end of each short-term engagement. But we are in the dark as to how this might work (in its revised form s.108A says nothing about “continuous employment”); or, if it does stop a dismissal after each micro-contract, how a tribunal would decide whether such an employee has been dismissed for statutory purposes. This could prove to be a formidable regulatory challenge in platform economy work contexts.

As for the third condition, on the modified test of fairness during probation, the suggestion in Next Steps is that the employer would be required to hold a meeting with the employee, at which the employee had the right to be accompanied, and to explain to the employee their concerns about the individual’s performance (para. 30). There is a distant echo here of the procedure in the unlamented statutory dismissal and disciplinary procedure once found in Schedule 2 of the Employment Act 2002. But we think it would be a mistake to consider condition three in isolation from condition two. The “reason” for dismissal is the set of facts or beliefs that caused the employer to dismiss, and the burden of proof is on the employer: s.98(1). Without some sort of adequate investigation, a tribunal may not be satisfied that the employer has shown it genuinely believed on sufficient grounds that the employee was, for example, incapable or committed misconduct. Plenty of the old cases illustrate this principle. Giving meaningful effect to “day one” rights to unfair dismissal requires some form of sufficient procedural safeguards to employees, not simply jumping over hoops.

The Bill does nothing to change the existing restriction of unfair dismissal rights to employees, defined in s.230 ERA by reference to the common law contract of employment. The most tried and trusted means of taking individuals outside this category is to use agency workers who, for reasons which are too well established in the case law to be easily disturbed, are typically not employees. Other techniques, such as using substitution clauses to defeat personal service, are less reliable after Pimlico and Uber. If the right to day one unfair dismissal protection is not to be side-stepped, it is important that the envisaged future legislation addresses compendiously the question of worker status, including how the interposition of agencies and other intermediaries between the individual worker and the undertaking can result in the loss of employment rights.

4. “Fire and rehire” and collective redundancies

The theme of tackling “one sided flexibility” is also addressed in the Bill’s provisions relevant to “fire and rehire”. In fact, “fire and rehire” may be the most extreme manifestation of this “one sided flexibility” in the modern labour market. It involves the powerful party – the employer – exercising its economic power effectively to impose downgraded terms and conditions on the weaker party – the employee. Any such “consent” has dubious legitimacy when the alternative is dismissal.

The main provisions are contained in cl. 22 of the Bill, which sets out a new s.104l for insertion in Part 10 ERA 1996 dealing with unfair dismissal. This clause is addressed directly to the problem of “fire and rehire”. There are also proposed reforms proposed to strengthen the law on collective redundancies. These are set out in the Bill and Next Steps document. We shall consider collective redundancies here because they are often relevant to “fire and rehire” decisions which involve action against a significant part of the workforce. This is demonstrated by the P&O Ferries scandal, an episode that has loomed large in debates around the Bill. However, improvements to the law on collective redundancies is obviously of broader relevance beyond “fire and rehire”.

(1): Improving unfair dismissal protection. In “fire and rehire”, the employer uses the threat of dismissal to circumvent the contractual bargain in the employment contract. In recent years, it has led to highly visible litigation involving such household names as P&O Ferries and Tesco (see Tesco v USDAW [2024] UKSC 28). As such, it is hardly an obscure business peccadillo lurking in the shadows of the modern economy. In fact, this controversial business practice encompasses a variety of forms, making its regulation difficult. Fundamentally, the practice involves eliciting the employee’s “agreement” to downgrade contractual terms and conditions under the threat of dismissal. If the employee does not agree to the proposed variation, the employer then terminates the contract with the requisite notice. The employer may then seek to reissue new contracts with downgraded terms to the existing workforce (“fire and rehire”), which reflected the approach in Tesco. In more extreme cases, the company may employ an entirely new workforce on revised and highly disadvantageous contracts, sometimes through intermediary agencies as in P&O Ferries (“fire and hire”). It has been particularly controversial where the employer has pursued this approach opportunistically to boost profits at the employees’ expense, rather than to avoid dire economic consequences for the firm in circumstances of business necessity. The prevalence of “fire and rehire” therefore depends upon a wide and lightly regulated power of dismissal. It should not surprise us that the main focus in the Bill is on tightening unfair dismissal protections for “fire and rehire”.

The orthodox view is that a dismissal with notice is not a breach of contract (though cf. Lord Leggatt in Tesco) and the current law on unfair dismissal gives employers wide latitude to dismiss fairly in these circumstances. In Catamaran Cruisers Ltd v Williams [1994] IRLR 384 the tribunal had effectively used a “necessity” approach under the unfair dismissal jurisdiction: was it economically necessary for the employer to implement such significant changes to the employees’ terms to ensure the survival of the business? The EAT rejected this strict approach, and it remitted the case to the tribunal for it to use a more balanced approach to the employer’s and employee’s interests. Currently, the tribunal will not challenge the underlying rationale for achieving savings, and nor will it subject the means chosen (e.g. wage cuts) to any significant critical scrutiny. There is no requirement, for example, that business needs must be so pressing as to be vital for the survival of the employer, and it is generally sufficient that the changes are not imposed for an arbitrary reason and have some evidence to support them. If the EAT in Garside and Laycock v Booth [2011] IRLR 735 emphasised the statutory requirement to have regard to ‘equity’ in analysing fairness under s.98 in the context of fire and re-hire (at §23), it also reaffirmed the orthodoxy that pay cuts may reasonably be imposed in circumstances where they are not necessary to save the business. Although the reasonableness of the new terms is a relevant factor and the authorities talk of a balancing exercise, the principal focus of the statutory question is still on whether the employer acted within the range of reasonable responses. Even if it is reasonable for the employees to refuse to accept the new terms, it does not follow that the employer cannot act reasonably in dismissing the employee for doing so, as recently confirmed by the EAT in Masiero v Barchester Healthcare Limited [2024] EAT 112 at §§49- 57.

In the wake of the P&O Ferries scandal, the previous Government issued a Code of Practice on Dismissal and Re-engagement (the ‘CoP’) under ss 203-4 of TULRCA, which came into effect on 18 July 2024: see SI 2024/708. Tribunals are required to take it into account when they assess whether an employer acted reasonably under s.98 of ERA and a breach of it may lead to an uplift of compensation for unfair dismissal: see s.207 and s.207A of TULRCA. But the CoP cannot change the statutory question under s.98 and its provisions on dismissal and re-engagement do little more than reflect the existing case law in this area: see §§47-54. Its statement that employers should treat dismissal and re-engagement as a “last resort” (§47) is no more than an exhortation or recommendation, as the CoP itself explains at §15. It is doubtful it will do much, if anything, to disturb the existing case law applied by tribunals.

If enacted, the provisions in cl. 22 represent a radical shift in approach. There will be an “automatically unfair” reason for dismissal in two situations: (i) where the employer “sought to vary” the contract and the employee did not agree to the variation; (ii) where the employer was seeking to employ another person or re-engage the employee under a varied contract of employment to carry out “substantially the same duties as the employee carried out before being dismissed”: see s.104I(2)(3). It is far broader than “fire and rehire” situations and includes any dismissal in response to a refusal to agree a variation to any terms of the contract (whether express or implied, written or oral: see Explanatory Notes §342). This provision will apply where, for example, an employer’s strategy involves a pause before hiring replacement employees or where an employer tries to change a single individual’s contract. Or, like in P&O Ferries, replacements are engaged through intermediaries such as agencies and hence are not hired at all by the direct employer. In P&O Ferries, of course, the employer had not sought to vary the contracts. It simply dismissed the workforce. Hence, this situation would fall outside cl. 22 as drafted. This is not as problematic as it might first appear. This is because the proposed expansion of remedies for collective consultation (and the fact that the engagement of agency labour would also very likely trigger redundancy payments for the sacked seafarers) provides a deterrent response if there is a repetition of such egregious corporate conduct. The second limb includes both dismissals pursuant to “rehiring” the same employees and “hiring” new employees. The requirement that the duties be “substantially the same” allows the tribunal some latitude to scrutinise the underlying substance of the new contracts, though many cases would very likely be covered by the first limb as well.

So far, the provision appears to impose a ban on such dismissals. However, it must be read alongside s.104l(4). This provides a narrow gateway for employers to avoid automatically unfair dismissal. It is for the employer to satisfy the tribunal of two cumulative conditions. First, by limb (a) “the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of, any financial difficulties which at the time of the dismissal were affecting, or were likely in the immediate future to affect, the employer’s ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business”; and second, by limb (b), that “in all the circumstances the employer could not reasonably have avoided the need to make the variation.”

We would suggest that this provision is, in overall effect, functionally equivalent to a substantive justification defence for the employer. Although the “reason” for dismissal ordinarily means the set of facts or beliefs which caused the employer subjectively to dismiss, the focus of limb (a) is on the “reason for the variation”. The purpose of the provision and the stringency of the statutory wording suggests that tribunals will require, at least, sufficient evidence to demonstrate that the conditions did in fact exist. The reason for the variation must be to “eliminate”, “prevent”, “significantly reduce” or “significantly mitigate” financial difficulties; It is not sufficient that there is a belief the measure would simply “reduce” or “mitigate”. The pressures must be presently affecting or “very likely in the immediate future” to be affecting the firm, indicating a degree of urgency. More speculative concerns about the economic outlook will not be sufficient. The second cumulative condition in limb (b) envisages that the employer had no reasonable alternative open to it in all the circumstances. The context and wording suggests the question here is not subject to the “range of reasonable responses” but is instead a question for the tribunal, similar to how it should approach the question of proportionality or objective justification under equality law.

Demonstrating that the conditions in limbs (a) and (b) are met is necessary but not sufficient to avoid a finding of unfair dismissal. If the employer demonstrates it meets these strict conditions of s.104(I), the tribunal must still consider if the dismissal was fair or unfair in the circumstances. New s.104I(5) sets out a non-exhaustive lexicon of relevant procedural factors which tribunals must consider. This procedural focus flows logically from the fact that for this enquiry to be relevant at all, the tribunal must have already concluded that the dismissal was (objectively) substantively justified. The relevant compulsory factors include any consultation carried out with the employee, any consultation with a recognised trade union, and anything offered to the employee in return for agreeing to the variation. It also provides for a power for the Secretary of State to add to this list by regulations. The listed relevant factors emphasise the importance of consultation to the fairness of treatment, so that it is doubtful the range of reasonable responses will have much traction here. As the Bill proceeds, trade unions will no doubt press for “negotiation” to be substituted for “consultation” in respect of the involvement of recognised trade unions. To ensure the overall coherence of these provisions, any additional factors ought to focus on procedural matters as well. This will provide an indirect auxiliary prop to the involvement of trade union representatives in ensuring that employees’ interests are effectively safeguarded during the procedural process.

Overall, the approach in cl. 22 represents an ingenious compromise position. It does not ban “fire and rehire” outright, although as has been argued, there is a danger that the cure is worse than the disease if a complete ban pushes employers into insolvency: Firing and Rehiring: An agenda for reform – IER. The strict criteria in cl. 22 allow some leeway for employers in genuine economic distress. Employer groups may argue that this is too stringent, although the existing approach based on the CoP is difficult to reconcile with the overarching concern to reduce “one sided flexibility”. There are also risks that employers will attempt to circumvent the provisions in various ways. For example, it is possible to avoid the operation of cl. 22 by using detriments short of dismissal to pressurise employees into accepting a variation. But in those circumstances the common law might well come to the rescue where, e.g., there was any individual or collective protest or objection to the changes: see Abrahall v Nottingham CC [2018] ICR 1425. We may also see the rediscovery of very wide unilateral variation clauses, as exemplified in Bateman v Asda UKEAT/0221/09/ZT which reserve a power to the employer to vary the terms of the contract without employee consent. The pre-emptive inclusion of a clause to ban such terms may be a prudent step for the legislator. Trade unions and their legal advisers will also be looking for opportunities to bolster cl. 22 through litigation. The judgment of Lord Leggatt in Tesco Stores v USDAW indicates the potential relevance of the Braganza implied term to the common law of dismissals. This term envisages the application of public law standards, such as a requirement to take into account relevant reasons, in the exercise of contractual powers. Could this provide an implied common law restriction on a dismissal in response to an employee’s refusal to vary? If so, could the employee now seek an injunction to restrain the dismissal and maintain the continuation of the existing contract after Tesco? This would augment the remedial armoury available to employees and trade unions in protecting their contractual bargains.

(2) Improving the law on collective redundancies. The wide definition of “redundancy” in s.195 of TULRCA, introduced to implement EU European law, means that “fire and rehire” dismissals will usually fall within the scope of the collective redundancies’ consultation framework, subject to meeting the threshold of 20 proposed dismissals in s.188. The effectiveness of this legal framework, and its available remedies, was at the centre of the P&O scandal. The immediate dismissals of hundreds of seafarers, in clear breach of collective consultation requirements, attracted extensive parliamentary and media attention. The company had calculated the costs of non-compliance and prepared financially attractive settlement agreements to effectively buy off the litigation. This business planning was facilitated by the existence of a cap on the “protective award” for a failure to consult, currently fixed at 90 days’ pay under TULRCA s. 189(3). It could calculate the costs of its wrongdoing (set against likely profits) with exactitude.

In addition to consultation duties, employers are also subject to duties under s.193 to inform the Secretary of State in large-scale redundancies, backed by criminal sanctions in s.194 (an unlimited fine). But there are no equivalent sanctions for a breach of the duty to notify the competent authority of a vessel’s flag state under s.193A. This may be a simple oversight because it means that s.193A is a duty with no sanction or penalty. While there was evidence that P&O Ferries had informed the competent authority of a vessel’s flag state, it had not done so in accordance with the time frames envisaged in s. 193. The company and its directors were thus able to avoid criminal liability and buy-off the civil litigation. The unavailability of any interim relief also meant that the contracts were terminated before the trade union had an opportunity to organise primary strike action. This episode exposed a multitude of weaknesses in the law of collective redundancies, which was effectively now an option for well-resourced employers to buy themselves out of. After P&O, there was little sense that these were real obligations imposed on employers with binding effect.

Cl. 23 of the Bill indicates a more serious public commitment to redundancy consultation as a mandatory legal duty. It extends the scope of the duty by the removal of the single establishment limitation. Where there is a proposal to make 20 or more employees redundant, this will now trigger the consultation duty without needing to demonstrate they are employed at a single establishment. The effect of this is to allow the aggregation of redundancies across establishments, thereby reversing the restrictive effects of USDAW v Ethel Austin [2015] 3 CMLR 32. Cl. 24 also closes the loophole in criminal liability exposed by P&O Ferries. If enacted, this provision would require the employer to notify the Secretary of State in addition to the relevant flag state authority. The failure to notify the Secretary of State in the prescribed time frame would then be subject to the criminal offence under s. 194. This would address the lacuna in P&O Ferries, although whether an unlimited fine would have been a sufficient deterrent for the culpable behaviour in that case is not clear. It may be that only custodial sentences imposed on accessory directors would suffice as a deterrent.

While these changes are important, they do not address the serious remedial deficiencies in P&O Ferries. The Next Steps document indicates the next phase of development, a commitment “to consult on lifting the cap of the protective award if the employer is found not to have properly followed the collective redundancy process as well as what role interim relief could play in protecting workers in these situations.” ([26]). The current cap on the “protected period” used to calculate the protective award is 90 days: see s.189(4).

Let us take each of these in turn. To begin with the protective award and “lifting the cap”, it is not entirely clear what this means. There are (at least) three possibilities. The first is removing the cap entirely in all cases and allowing the tribunal a discretion to determine the penal level of the award commensurate with the culpability of the employer. The second is retaining the cap but lifting the level from 90 days to a higher amount. The third is removing the cap in a defined category of cases where the employer has engaged in an aggravated or egregious breach of the consultation procedures, for example by calculating the likely profits of its wrongdoing and deliberately breaking the law in pursuit of financial gain.

The first possibility, removing the cap entirely, disrupts the business planning of the calculating wrongdoer. However, this also has an indiscriminate impact on the employer that breaches the legal provisions while endeavouring to comply. The 90-day period is a well-settled threshold for employers and tribunals, which provides a starting-point for assessing reductions in light of the employer’s degree of fault. The second possibility is unlikely to have any significant deterrent effect on calculative wrongdoers given the likely range within which the period will be adjusted, say from 90 to 120 days. The third possibility is more attractive in that it targets the removal of the cap at an employer that deserves to have its business planning destabilised by uncertainty. It could focus on a statutory formula, such as “exceptionally serious” or “aggravated” breach, based upon the wrongdoer’s calculation of profits against damages, that brings into play the common law principles on punitive damages.

It is also interesting to consider the practical scope for interim relief in this context. It is presently restricted to dismissals for trade union reasons, some employee representative functions and whistleblowing. The application must be made before the end of the period of seven days after the effective date of termination: see s.161(2) TULRCA, s.128(2) ERA. The tribunal determines the application as soon as practicable. If it finds it is ‘likely’ it will find that the employee was unfairly dismissed then (it makes an order for reinstatement or re-engagement or for the continuation of the employee’s contract of employment, principally for the purpose of his being paid, until the determination of the complaint (ss 163- 164 TULRCA, s. 130 ERA).

These provisions are not easily transplanted into the sphere of collective redundancies. There may be hundreds of dismissals, and the likelihood of a speedy tribunal determination correspondingly remote. The consultation process should focus on a form of interim relief that is suitable for this context. While the detail will need to be worked out, an interim order for the continuation of the contracts or prevention of dismissal until the exhaustion of the 90-day consultation period is one possibility. This would require the adjustment of any financial awards to avoid double recovery. It also raises difficult questions in large workforces with a mixture of unionised and non-unionised employees, and the standing of trade unions to seek a “collective” interim order in such circumstances. While the practical and legal challenges for bespoke interim relief may be significant, the strategy of consulting on this in a follow-up phase of “next steps” is a responsible approach to legislating.

5. Collective labour law reforms

The provisions on collective labour law provide the most striking contrast with New Labour’s White Paper, Fairness at Work. This declared that there would be “no going back” on the restrictive strike laws enacted during the 1980s. There had been a kind of ratchet effect, with restrictive laws embedding into the political and legal common sense of industrial relations. In the Employment Bill, there is an ambitious programme of reform which includes (i) repeal or reversal of restrictive strike law measures such as the Minimum Service Levels framework and the high turnout thresholds in strike ballots imposed by the Trade Union Act 2016; (ii) new legal rights such as union access and right to statement of trade union rights; (iii) new bargaining institutions such as sectoral agreements in adult social care; (iv) incremental improvement of existing auxiliary supports such as reforms to Schedule A1. This represents the most ambitious reform package for trade union rights in a generation.

Here, we will focus on the reforms to detriment and dismissal protection for individual strikers; and the new proposals on union access.

(1) Detriment and dismissal protections for participating in “protected” industrial action. In Secretary of State for Business and Trade v Mercer [2024] ICR 814 the Supreme Court considered whether a worker who (on agreed facts) had been suspended in order to sanction or penalise her for participation in a “protected” (i.e. lawful and official) strike was protected from being subject to a “detriment” for participation in trade union activities under s. 146 TULRCA. The Court concluded that this protection was excluded from s. 146, principally because it did not take place “at an appropriate time”, meaning there was no statutory protection for the claimant, Ms Mercer. Lady Simler considered that it was appropriate to issue a declaration of incompatibility under s.4 of the Human Rights Act 1998 because the absence of any effective protection for individual strikers exposed to detriments for engaging in a lawful and official strike meant s. 146 was incompatible with Article 11 ECHR. The Employment Bill presented an opportunity for the Government to respond to the s. 4 declaration, just as the Employment Relations Act 2004 provided an opportunity for the then Labour Government to introduce legislation to respond to the judgment in Wilson v United Kingdom [2002] ECHR 552.

The direct legislative response to the Mercer declaration is set out in cl. 59. The basic formula in s. 236A (1) substantially mirrors that provided for in the main s. 146 trade union detriment provision. It provides that a worker has the right not to be subjected to “detriment” where the act or failure to act “takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action or penalising the worker for doing so.” Furthermore, it is for the employer to show what was the sole or main purpose for which it acted under s. 236C. The restriction to “protected industrial action” ensures that this provision is aligned with the parallel dismissal protections in s. 238A. It is also consistent with the ECtHR’s judgment in RMT v United Kingdom [2014] IRLR 467 and its insistence that strike action must be called by a union to attract protection under Article 11 in Baris v Turkey (App. No.68959/01, 21 April 2009)

The difficulty with cl. 59 is s.236A(4) which provides “Regulations under subsection (1) may prescribe detriment of any description”. Though the wording is recondite, it appears to envisage that some detriments may be excluded from s. 236A altogether, and hence will not be unlawful even where they are imposed for the “sole or main purpose” of preventing, deterring or penalising protected industrial action. There is no such distinction in s. 146, and for very good reason. Otherwise, an employer could impose non-proscribed detriments on a worker for trade union reasons. The effect of this would be to permit trade union discrimination in a zone of statutory impunity.

That cannot be right. This hare may have been set running by some of Lady Simler’s comments in Mercer at §83:

“In my judgment the state’s positive obligations under article 11 do not require it to confer universal protection in all circumstances to all workers against any detriment (however slight) intended to dissuade or penalise them from participating in a lawful strike. If that were the case, the conditions that must be fulfilled to attract the protection from dismissal afforded under Part V of TULRCA would be incompatible with the UK’s obligations under article 11, and RMT would have been decided differently. Equally, it would be surprising if sanctions could not be imposed in circumstances where an employer could permissibly dismiss an employee for participation in a lawful strike. There may be circumstances where it is permissible to impose a detriment for participating in lawful strike action where employees have necessarily acted in breach of contract, particularly where the manner of the breach is harmful or disruptive.”

Lady Simler refers to circumstances where “the manner of the breach is harmful or disruptive”. This may envisage a situation where an individual striker has engaged in independently unlawful conduct, such as violence or property damage. Does this necessitate a restriction on the category of “detriment”? That would seem odd, especially since Lady Simler seems to envisage that such conduct could also lead to a worker being “permissibly dismissed” anyway.

With great respect, Lady Simler appears to be eliding “detriment” and “purpose” here. In a situation where a worker is penalised for gross misconduct during a lawful strike, it is not the “sole or main purpose” to penalise “protected” industrial action. The purpose is instead to penalise the wrongdoing. It would fall outside s. 236A on that basis, and any adjustment to “detriment” would be missing the point. It would also mean that a victimised striker who had done nothing wrong, but who was then subject to an excluded category of detriment, would have no redress under the legislation. This would also be true of many workers in the public sector relying on s. 236A who, according to Lady Simler, should be accorded the most stringent protection under Article 11. Another motivating factor may be the thorny issue of disproportionate deductions from pay during action short of a full strike. When do such deductions stray into detriments?

The distinction between suspect and permissible detriments for participating in lawful strike action has no basis in the Article 11 case law. A consistent line of cases law from Strasbourg, beginning with Karacay v Turkey (Ap No. 6615/03, 27 March 2007) and continuing with Guler v Turkey [2018] IRLR 880, has held that any sanctions, however minimal, which dissuade or penalise trade union members from participation in lawful strikes are incompatible with Article 11. The introduction of such a distinction would also give the employer a mastery over its own legal fate, enabling it to penalise strikers using permitted detriments while side-stepping proscribed detriments. This is inconsistent with the fundamental requirement that states must provide “real and effective” protection from anti-union discrimination: Danilenkov v Russia (App. No. 67336/01, 10 December 2006) The distinction is also incompatible with the UK’s international obligations under ILO Convention No. 98 (and Convention No. 87) and Article 5 of the European Social Charter of 1961, both of which have frequently been taken into account by the Strasbourg court in cases on Article 11, such as Danilenkov. In applying these provisions, the expert bodies of the ILO and ESC have held that salary deductions for the duration of a strike are permissible but all other sanctions imposed on strikers are impermissible. It would be regrettable if a measure designed to remove an incompatibility was itself vulnerable to further challenge based on the Human Rights Act. Fortunately, this is easily avoided through some tweaks to the existing draft.

We suggest that a better solution would be for “detriment” to bear its ordinary meaning in s. 236A and therefore be aligned with s. 146. We would then recommend the inclusion of a provision to the effect that “proportionate deductions of pay do not constitute a detriment for the purpose of s.236A (1)”. While this will require some judicial elaboration, there may be real value in the development of statutory proportionate deduction principles detached from the mess of the common law authorities (for an attempt to traverse this dark wood, see Striking, Pay Deductions, and Reasonable Orders: A Legal Analysis – by Alan Bogg and Michael Ford KC – UK Labour Law (uklabourlawblog.com) .

The Government is also taking the opportunity to remove another potential Article 11 incompatibility in the protection of strikers from dismissal for participating in “protected” industrial action under s. 238A. This protected period of industrial action is currently restricted, in broad terms, to the first 12 weeks of the dispute. Under cl. 60, this time limit will be removed so that protection extends to the full duration of a lawful and official strike. This chimes with the Article 11 case law, in which there is no suggestion that individual protections from victimisation should be curtailed by a temporal limit on the strike. Of course, for long strikes once the ballot mandate has expired it may be that the industrial action ceases to be “protected” because the acts of inducement are no longer protected under s. 219. This is a major step in terms of guaranteeing an individual right to strike, and it avoids further litigation on Article 11 and dismissal protections in the courts.

(2) Union access. One of the most interesting collective proposals is the right of trade unions to access the workplace set out in cl. 46. In certain respects, it reflects key elements of the existing access right for trade unions in the Schedule A1 union recognition procedure. Para 26(3) provides that an employer is under a duty to provide “such access to the workers constituting the bargaining unit as is reasonable to enable the union to inform the workers of the object of the ballot and to seek their support and their opinions on the issues involved’. It is accompanied by a Code of Practice on access and unfair practices during recognition and derecognition ballots. The primary vehicle for this Schedule A1 access is an access agreement, informed by the guidance in the CoP, and breaches of the access agreement are adjudicated by the Central Arbitration Committee (CAC). Under cl. 46, union access is also to be based upon agreement between the parties, with complaints to be considered by the CAC. It makes sense to use the CAC for the new access right because of its long experience in dealing with access disputes effectively under Schedule A1.

The function of the existing Schedule A1 duty is circumscribed by its role in a recognition ballot under the Schedule: to ensure parity of campaign access between the employer and the trade union in communicating with the workers in the bargaining unit. The freestanding access right in cl. 46 pursues a broader range of “access purposes” which are listed in the Bill as (i) meeting, representing, recruiting or organising workers (including non-members); and (ii) facilitating collective bargaining. Interestingly, the Explanatory Notes also indicate that “supporting a trade union member with an employment-related matter” is an “access purpose” (§538) but this is not yet included expressly in the Bill version. The organisation of strike action is excluded as an “access purpose”. “Access” is defined as physical access. It may be that virtual access may be particularly useful for some unions in respect of the dispersal of workers in “work from home” contexts, and this may need to be considered as the Bill progresses. While virtual access is often no substitute for physical access unions should be permitted to seek where it is suitable to an organisational context.

The regulatory technique under cl. 46 is to create a framework for the parties to negotiate an “access agreement”. This is initiated by a union access request and it must be followed by an employer response. The time period for this negotiation period is still to be determined by the Secretary of State. As with Schedule A1, it is vital that these periods are relatively short to address the danger that employers will use procedural delay to impede or obstruct the union. If it is envisaged that “representation” as an access purpose includes assisting in the enforcement of statutory rights, long delays can facilitate the concealment of evidence of statutory breaches. The contrast with the strong access duties (and minimal notice requirements) in Australian labour law is interesting here, and this may be explained by the strong connection with statutory enforcement: see Right of entry – Fair Work Ombudsman. Given the broader ideological commitment to labour market enforcement in “Making Work Pay”, this may require further thought.

Where the parties do not agree, an access arrangement may be determined by the CAC. The determination must be consistent with “access principles” which are that: (i) access “does not unreasonably interfere with the employer’s business”; (ii) the employer should take “reasonable steps” to facilitate access; (iii) access should be refused only where it is reasonable to do so. These principles will certainly require further elaboration, preferably through a CoP. It will be important to guide the discretion of the CAC to avoid the scope for damaging judicial review, which has been critical to the success of Schedule A1. The Bill provides that the SoS may prescribe principles where it would be reasonable for the CAC to refuse a determination, which include amongst other things (i) the number of workers who are union members in the workplace; and (ii) the number of workers employed. We may yet see a trigger threshold for union access such as a minimum level of membership density or a firm size exclusion. Other relevant matters are likely to be the existence of competing unions, the presence of a recognised union, and the frequency of access requests during a specific period. These matters may provoke conflict between the employer and the union, and there should be clear guidance for the parties and the CAC. An unstructured discretion is an invitation to judicial review in this context. This is particularly so given the contrast with access under Schedule A1, where the employer’s own communication methods during the ballot provide the benchmark for parity of access. That makes less sense here because there is no singular reference point such as an impending ballot.

In sum, we regard this as a very significant measure. It will enable unions to access workplaces and to secure the support thresholds necessary for a credible recognition application, and so it is likely to provide indirect support for Schedule A1. The devil will be especially in the detail in defining reasonable access, and a CoP must operate alongside the right to ensure it is conducive to the parties bargaining and agreeing access in the shadow of the CoP. The linkages with statutory enforcement also require further elaboration, because they are highly consequential for issues such as notice and negotiation periods.

6. Conclusion: tackling bad work

Is the Employment Bill simply a shopping list of unconnected demands? Or does it possess a unity and coherence? We suggest that it does. It represents a politics that is less showy but none the less urgent and important for that. Exploitation, abuse of flexibility, and routine disregard of legal rights have proliferated in our lightly regulated labour market. The eradication of bad work, and injustice in the labour market, is now focal in Labour’s programme. It is a theme that resonates in the important provisions on state enforcement in Part 5, including the new power to enforce holiday pay rights, and the commitment in the Plan to Make Work Pay to increase tribunal limitation periods to six months.

This pessimism is refreshing. Politicians are generally comfortable reflecting on good work and the nature of just institutions in politics and society. Yet there is a strain of utopianism in Fairness at Work that would be tin eared in 2024. By contrast, Making Work Pay accords strategic and political priority to the eradication of bad work and labour market injustice. That theme unifies a Bill that ranges ambitiously across insecure zero hours contracts, day 1 rights for unfair dismissal, “fire and rehire”, new trade union rights, and supporting labour market enforcement. In the distribution of scarce legal resources, the prioritisation of eradicating serious wrongs and evils is a reasonable public policy. When bad work has been reduced, there is then a stronger case to shift the public regulatory focus more decisively towards promoting good and meaningful work. This also brings employment law into much closer alignment with law as a technique for remedying wrongs. And this may be the enduring paradox of Making Work Pay. It is precisely in its circumspection, pessimism of outlook, the focus on eradicating evils and wrongs, its retrieval of a traditional view of the role of law as remedying wrongs, that will be its legacy as the most significant shift in UK employment law in the last fifty years.

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(Suggested citation: A Bogg and M Ford, ‘From ‘Fairness at Work’ to ‘Making Work Pay’: A Preliminary Assessment of the Employment Rights Bill’, UK Labour Law Blog, 14 October 2024, available at https://uklabourlawblog.com/)