It was reported over the weekend that the government has dropped ‘the right to switch off’ from its Employment Rights Bill. Such a right, it has been widely asserted, had appeared in Labour’s manifesto for last year’s general election, promising that employees would be granted a legal right to ignore their boss’s emails outside their contracted working hours. However, it was left out of the bill as originally published last autumn, and neither has it been introduced as an amendment.
But it seems that we were not really paying attention. It is true that Angela Rayner, in an interview with the Financial Times in May, made the suggestion that the ‘right to switch off’ would be included in the upcoming manifesto. The ‘right to switch off’ also appeared in a pre-manifesto document called Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People, which was published the week that the election was called. However, scour the manifesto itself and it contains no such promise. In other words, Labour might have gone back on a suggestion that it floated before the public but, no, it cannot – technically – be accused of breaking a manifesto promise. The same weaselly trick is there to be seen, by the way, in Ed Miliband’s promise to save us £300 on our energy bills through his green policy, which is often reported as a manifesto promise but wasn’t – it was just a pledge made around the same time.
Is it any wonder that the ‘right to switch off’ came a cropper before the manifesto was published? Just look at the way that government and political campaigning works. Remember Labour’s pagers, which defined the 1997 election campaign – since replaced, obviously, with phones, BlackBerrys and smartphones? A party and government that spends its time manically contacting candidates and MPs at all hours would be guilty of gross hypocrisy if it tried to impose restrictions on private businesses, many of which have more pressing reasons to contact their staff out of hours. Did Angela Rayner ever think it would be reasonable, say, to stop a nuclear power station or a chemicals company contacting workers in an emergency situation where public safety was at risk?
The Employment Rights Bill does, however, still include the provisions that were promised in the 2024 Labour manifesto. Workers will be granted the right to sick pay and maternity leave from the first day of their employment. People employed on zero-hours contracts will have to be offered some guaranteed hours, and employees will be granted the right to ask for flexible working.
While many of the provisions in the bill will add to the cost of doing business and will be deeply opposed by employers, the Conservatives are hardly well-placed to oppose them. The right to ask for flexible working was already enshrined in the Employment Relations (Flexible Working) Act, which became law shortly before the election. So why it needs to be included in a new act is puzzling. Not that it seems it will mean that much anyway. There is a long list of exclusions that are likely to render the right to ask for flexible working pretty meaningless. Employers will have a reasonable excuse to reject such requests if it burdens their business with extra costs, if it is detrimental to consumer demand, if it detracts from workers’ performance or if there is insufficient demand at times when employees would prefer to work – which pretty well covers everything.
So, no, the Employment Rights Bill is not quite as bad as many might have feared. Nor can it be said that current legislation provides a particularly business-friendly environment – the last government wasn’t much better. But it will still impose extra costs on companies and hinder them from doing what the government keeps saying it wants to do – ‘kickstart growth’.
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