The Employment Rights Bill returned to the House of Lords on 28 October. This followed the House of Commons rejecting all non-governmental amendments that had been made by the Lords. The Lords have not, however, fallen into line and agreed the text of the Bill.
Ping pong
While the passage of the Bill is very much in its final stages, both Houses of Parliament require to agree its final text before Royal Assent can be given. Colloquially, the to-ing and fro-ing that takes place between the Houses of Parliament until agreement is reached is described as "ping pong". How long that continues will depend on how long it takes the Lords to back down.
One of the amendments the Lords are currently insisting on is retention of a qualifying period for unfair dismissal, albeit this would be six months rather than the current two years. The argument for the six-month qualifying period presented in the House of Lords encompassed economic reasons, lack of certainty as to how the day 1 right will be implemented, and the employment tribunal system not being "in a fit state" to deal with more claims.
Other Lords' amendments returned to the House of Commons for further debate include:
- An option for employees to opt out of guaranteed hours offers (with an option to opt back in at any point);
- A requirement for the Secretary of State to have special regard to seasonal workers when making regulations relating to guaranteed hours;
- New trade union members being given the choice of whether to opt into a union's political fund; and
- Retention of the requirement that there must be a turnout of at least 50% of those eligible to vote in a ballot for industrial action.
Convention suggests that, after a period of ping pong, the House of Lords will eventually accept the Bill as finalised in the House of Commons. How long that will take is not clear and could cause further embarrassment to the UK government. The worst-case scenario, if the UK government chooses to stand firm and wait it out, will be a delay. That would be frustrating for the UK government, but not as problematic as it would be for them if they were to compromise on some of the measures that the Lords seek to amend. The day 1 right to unfair dismissal protection, for example, was a high-profile election manifesto pledge. It seems almost inconceivable that the UK government will step back from that pledge.
Timescales
The Bill is scheduled to return to the House of Commons on 5 November. A short recess is currently scheduled for both Houses, with the Lords returning to business on 10 November, and the Commons returning the day after. It is safe to assume that the Lords' amendments will not all be accepted (if any) on 5 November. That means the Bill will have to return to the House of Lords at least once more. It remains to be seen how much longer the ping pong will continue. Optimistically, we may now be looking at Royal Assent by mid-November. Pessimistically, it may be a few weeks yet.
