By Jeff Slee

So Peter Kyle, the pro-business Business Secretary, has retreated on the commitment he gave when taking over the post in September to deliver the Employment Rights Bill in full. Workers’ protection against unfair dismissal will be after six months, instead of from Day One.

Day One protection was promised in the “New Deal for working people” agreement between the Labour leadership and unions in May 2024. That promise was repeated many times by the Labour front bench when the Bill went through the Commons. Keir Starmer told the TUC in September that the Bill would be implemented in full. But now the Labour Government have gone back on its promise.

The importance of Day One protection was never that it would stop employers dismissing workers early in their employment. It was that employers would have to have a written probationary procedure, saying how new employees would be assessed, and with proper hearings for those they were considering dismissing.  Among other benefits, this would have given unions the opportunity to be involved in representing employees from the start of their employment.

Without Day One protection, employers can continue to dismiss new employees for almost any reason (except obvious discrimination) without having to justify this, without giving the employee the chance to answer, and without the employee having union representation.

Protection against unfair dismissal means that workers have a right to appeal to an Employment Tribunal, which can – if they judge a dismissal unfair – award compensation. An Employment Tribunal cannot order the employer to take back a sacked employee. Employment Tribunals do not normally judge a dismissal unfair if the employer has followed a proper procedure and if the Tribunal decides the decision to dismiss was reasonable.

So even with Day One protection, an employer could dismiss an employee who they considered unsuitable or not up to the job, provided they followed  a proper procedure.  Unions do not waste their resources taking up no-hope Employment Tribunal cases, and it is almost impossible for individuals to win a case on their own.

The Government retreat means they have given way to the Lords, who have held up the Bill by repeatedly refusing to accept the wishes of the Commons- and commitments in the Labour manifesto – by passing amendments against Day One protection. The Government should have insisted that the Lords accept their manifesto commitment.

Having backtracked on this issue, there is a danger that the Government will also backtrack on the other issues the Lords are opposing the Bill on. These are the ending of the 50% turnout threshold for industrial action ballots, and replacing opting in to union political funds with opting out. The Tory  and Lib Dem Lords who, backed by employers’ groups, have been leading the Lords’ opposition to the Bill will today be more determined to force these issues.

We should support Labour MPs who have spoken out against this retreat. Andy McDonald MP has called it a complete betrayal, and Justin Madders MP – who until his unexplained and unwarranted sacking in the September reshuffle was the junior minister steering the Bill through the Commons – said it is definitely a manifesto breach.

Former Shadow Justice Secretary Richard Burgon MP agreed that the removal of Day One rights on unfair dismissal was a clear breach of the manifesto commitment. He said: “Big business and the powerful anti-workers’ rights brigade will have scented blood and they’ll now be pushing to dilute this legislation further. With multiple consultations still underway on how this legislation will be implemented, the entire labour movement will need to stay absolutely vigilant to stop any further backsliding.”

Nadia Whittome MP said: “Unfair dismissal whether it happens on Day one or at six months. There really is no excuse not to do it.”

Former Shadow Chancellor John McDonnell MP tweeted: “What we’ve witnessed over the last 24 hours is effectively a coup by the unelected House of Lords overriding a democratically elected government and dismissing the wishes of the people determined by a democratic election.”

Apsana Begum MP added: “People just want their elected representatives to say as they’ll do and do as they say.”

Questions too need to be asked of trade union leaders. News reports say the retreat was agreed between union leaders, business leaders and the Government. If the TUC and some union leaders have agreed to this retreat, they have betrayed TUC policy, agreed unanimously at September’s TUC Annual Congress, for the Employment Rights Bill to be delivered in full. Today the TUC website still gives high profile to a petition for the Bill to be delivered in full.

Jeff Slee is a retired rail worker and former RMT National Executive Committee member.

Image: https://pix4free.org/photo/37982/unfair-dismissal.html Unfair dismissal by Nick Youngson CC BY-SA 3.0 Pix4free Licence: Attribution-ShareAlike 3.0 Unported CC BY-SA 3.0 Deed