“We need and demand a labour rights framework that’s worth defending and that workers will value as having something in it for them.”
By Adrian Weir
The first tranche of new employment rights became operative on 18 February. Variously billed as the “biggest upgrade in workers’ rights in a generation” (Keir Starmer) and echoed by the TUC in December last year
The TUC has very helpfully listed the changes that came into force in February.
Simplified rules for taking industrial action
- the 40% support threshold for strikes in important public services (IPS) has been removed
- mandates for industrial action are increased to 12 months
- unions must give employers 10 days’ notice of industrial action (previously 14)
- unions no longer need to tell employers in advance how many workers in each role may strike
Simpler ballot rules
- ballot papers no longer need lengthy explanations of the dispute or action timetable
- members simply vote on the action they want to take: strike action or action short of a strike
Changes affecting public sector unions
- employers cannot charge unions admin fees for deducting subscriptions from pay.
- public bodies no longer have to publish facility time data
- the unused legal power to cap facility time has been removed
Unfair picketing rules scrapped
- unions no longer have to appoint a picket supervisor or follow the previous detailed supervisor requirements
Stronger protection for workers
- taking part in lawful industrial action is automatically protected from unfair dismissal, with no 12-week time limit
We can add to this list an ending of the necessity for unions to hold decennial ballots to maintain a Political Fund. Further, new union members will be deemed to have opted into the Political Fund rather than deemed to have opted out and having to make a conscious decision to opt in.
It would be churlish not to welcome these measures as a big step forward. However, the transition from the Green Paper New Deal for Working People to the Employment Rights Act 2025 can be seen as, to misquote Lenin, two steps forward, one step back.
However, we have now run into the first problem with the Act; these measures are not the totality of the new law, rather, they are just the first tranche. We may expect a further tranche in October 2026 and even more, hopefully the last, sometime in 2027 … and this way lies trouble.
Some measures will not be finalised until next year, after a process of consultation. What this effectively means is that business interests will have time in abundance to lobby ministers to weaken what may already be weakened aspects of the Bill.
Let’s take the right of union access to a workplace. New Deal for Working People was endorsed at Labour Party Conference in 2021, and remarkably, the name has not been dumped, although it has had “making work pay” added as a coda. In the official version, it says: “Labour will … establish a reasonable right of entry to organise in workplaces.” [my emphasis]
In the version published by Labour Unions (formerly known as TULO) this is expanded upon as:
Labour will also strengthen trade unions’ right of entry to workplaces to organise, meet and represent their members and potential members, and to contact remote workers [my emphasis]
Labour will establish a reasonable right of entry to organise in workplaces, by introducing a transparent framework and clear rules designed in consultation with unions and business that allow unions’ officials to meet, represent, recruit and organise members [my emphasis]
Although it’s not expected to be made operational until October 2026, the starting point is a long way short of where we may have anticipated. To start with, a union may submit a written request to an employer for access, who must respond within 5 working days. Thereafter, the parties may negotiate an “access agreement” within fifteen days.
Should the negotiations fail or the employer refuse access in any event, the union may appeal to the Central Arbitration Committee. The CAC may levy a fine on a recalcitrant employer of up to £75,000 and up to £150,000 for repeated breaches. The money, a fine, goes into the state’s coffers; it’s not paid over to the union as some form of compensation.
So, we’ve moved from a right of access to a right to request negotiations over an access agreement, with any penalty for non-compliance being to the financial benefit of the state. An enforcement order to bring a rogue employer to heel is not an available remedy.
A further weakness is the failure to legislate for a single status of worker. New Deal for Working People was unambiguous about this: “Labour will ensure that this injustice [multiple status of employment] is rectified by creating a single status of ‘worker’ for all but the genuine self-employed … All workers, regardless of … contract type, will be afforded the same basic rights and protections.”
These rights and protections include “rights to sick pay, holiday pay, parental leave, protection against unfair dismissal and many others.”
Single status is to be subject to yet another consultation with business and presumably the unions, but to take this forward will require further primary legislation, as there’s nothing in the Act on this topic.
On other new forms of labour abuse that are covered in the Green Paper, fire and rehire and zero hours contracts, the transition to the Act has been less than satisfactory. The fire and rehire provisions are complex and were, in any case, weakened in the Lords by the Government. On zero-hour contracts, although still out for consultation, we may say that it is inconceivable that a worker in that situation would dare challenge an employer for failing to offer a contract based on hours worked in the reference period, especially as the legal recourse would be to apply to the Employment Tribunal for a remedy.
The main focus of the Act is generally to give workers individual rights, to be enforced through the Employment Tribunal. The average wait for an Employment Tribunal hearing currently is around 335 days from the claim being lodged, longer for complex cases. Research carried out in 2013 has shown that 51% of successful applicants were never paid their compensation by employers. Further research in 2025 showed that 75% of (successful) applicants using the Government’s Employment Tribunal Penalty and Naming Scheme have not received their awards.
The extension under the new Act of the time limit to bring an ET claim from 3 months to 6 months (plus changes to early conciliation) will mean it will take longer to get a claim heard at the Employment Tribunal.
There is a great body of research that shows that when collective bargaining coverage falls, inequality rises, and that these two facts are not just correlated but the latter is causally linked to the former.
New Deal for Working People set out: “Labour believes strong collective bargaining rights and institutions at all levels are key to tackling the problems of insecurity, inequality, discrimination, enforcement, low pay and other issues identified in this Green Paper … Labour will empower works to act collectively via the roll out of Fair Pay Agreements … [which] will be negotiated through sectoral collective bargaining.”
Unfortunately, the Act restricts Fair Pay Agreements to the adult social care sector (where union-led negotiations are desperately needed). The Act also introduced a School Support Staff Negotiating Body (SSSNB), but, other than in these two sectors, there is no means to give statutory support for collective bargaining in other sectors of the economy.
If “making work pay” was to be achieved, then rolling out statutory support for sectoral collective bargaining would have gone a long way to deliver this.
The corollary to proper collective bargaining is a right to strike. When the Act became law last year, the Strikes (Minimum Service Levels) Act 2023 was repealed and, as noted above, most of the Trade Union Act 2016 was repealed in February this year. However, the fundamental restrictions on the right to strike are contained in the laws passed during the Thatcher and Major years of the 1980s and 1990s.
Repeal of the anti-union laws was clearly set out in New Deal for Working People: “Labour is committed to repealing anti-union legislation which removes workers’ rights, including the Trade Union Act 2016, in order to remove unnecessary restrictions on trade union activity.” Given that the 1980s and 1990s legislation remains in place, we have to say that repeal of the 2023 and 2016 Acts is a job only half done.
There were other urgent and important measures that could have been included in the Act, but were not. Firstly, as Prison Officers’ Association General Secretary, Steve Gillan has pointed out in a recent statement, supporting the call for an Employment Rights #2 Bill prison officers had the right to strike removed by the Conservatives in 1994. The right was restored in Scotland in 2015 to no detriment to the operation of the prison service. The POA calls for such a restoration in England and Wales in a second Bill.
Further, as the Government claims to support those working in adult social care with a quasi-collective bargaining forum as Unison General Secretary, Andrea Egan, highlighted in a recent Guardian article, the inequities of the proposed changes to “earned settlement” raising the bar to qualify for indefinite leave to remain from 5 to 15 years will impact disproportionately on mainly migrant workers in adult social care.
All the above discussion must clearly show that the Government missed a trick by succumbing to business lobbying and retreating on key pledges made in New Deal for Working People. The contribution made by Steve Gillan shows that there are employment rights issues that have not been addressed in the Act at all, even though the Government had a great opportunity to do so.
This is why the Campaign for Trade Union Freedom, in partnership with Strike Map, is holding a one-day rally to mobilise union activists and officials to keep the pressure on the Government to reopen this debate, to stand up to the business lobby and to legislate further to guarantee trade union rights as well as workers’ rights in our country.
We need and demand a labour rights framework that’s worth defending and that workers will value as having something in it for them; let’s not forget that Reform UK have promised to repeal the Employment Rights Act should they win the next General Election.
We need an Employment Rights #2 Bill to defend what we already have and to comprehensively and collectively advance the interests of working people. Speakers at the rally include:
- Steve Gillan – POA General Secretary and TUC President
- John McDonnell MP
- Sarah Woolley – BFAWU General Secretary
- Prof Keith Ewing – Campaign for Trade Union Freedom
- Fran Heathcote – PCS General Secretary
- Matt Wrack – NASUWT General Secretary
- Sarah Kilpatrick – NEU Deputy General Secretary
- Mike Masters – Birmingham bin striker
- Andrea Egan – Unison General Secretary
- Lord John Hendy KC – Camping for Trade Union Freedom
- Eddie Dempsey – RMT General Secretary
- The rally is on Saturday 21 March from 11:00 am at the NEU headquarters, Hamilton House, in London. Register for free here.
- Adrian Weir is Assistant Secretary of the Campaign for Trade Union Freedom. You can follow Adrian on Bluesky and follow the campaign on Bluesky and Facebook.
- If you support Labour Outlook’s work amplifying the voices of left movements and struggles here and internationally, please consider becoming a supporter on Patreon.
