Labour’s Employment Rights Bill 2024:

Will It Finally Fix the Failures of the 1999 Act?

 

 

Labour’s new Employment Rights Bill,  which begins its progress through the House of Commons on October 21^st, offers a chance to right the failures of the past, but unless it addresses the underlying issues of political discrimination and precarious employment, it risks repeating the failures of the 1999 Act.

Mike Hughes was one of those who campaigned for blacklisting legislation throughout the nineties. and earlier this year when he published “Inside the Economic League” and “Attlee’s Industrial Purge” he recalled the failure of the nineties legislation and suggests the real challenge for Labour in the twenty-first century  is not just to tweak existing and failed laws but to fundamentally reshape the relationship between employer and employee. Only by tackling the structural imbalance in employment contracts and making political discrimination illegal can they fulfil their promise to end blacklisting once and for all.

 

In the Autumn of 2023, Labour made bold promises to tackle blacklisting and improve workers' rights, pledging sweeping reforms in their "New Deal for Working People." Angela Rayner, speaking at the Trades Union Congress in September, assured the audience that Labour would bring forward an Employment Rights Bill within the first 100 days of forming government. Now, in 2024, Labour has published this Bill along with a policy document, "Making Work Pay," outlining their proposed reforms.

But for those of us who have been fighting for workers' rights for decades, there are concerns that Labour’s new proposals may fall into the same traps as before. In 1997 Labour promised to fix blacklisting for good. They changed data protection laws to include manual databases and introduced powers to ban employment blacklisting. It didn’t prevent the construction industry giants from continuing to build on the Economic League’s blacklist as they became fabulously wealthy as a result of Labour’s public sector PFI scheme in health and education.

The memory of Labour’s failure to fix blacklisting during the late 1990s is still fresh, particularly their botched handling of the Employment Relations Act 1999. It ultimately cost the construction industry dearly  but because of judge-led changes in the Common Law, not Labour’s legislation. Despite that 1999 Act’s promise, it had left fundamental issues unresolved, and Labour's current strategy seems destined to repeat those mistakes unless it addresses the core problems with employment contracts and political discrimination  in the workplace, not the list-makers they instruct to help them do it.

 

A Missed Opportunity - the 1999 Employment Relations Act

 

In 1997, the Labour government came into power with the opportunity to fix blacklisting once and for all. Veterans of the campaign against the Economic League, like myself, believed that meaningful change was on the horizon. The blacklisting practices of the 1980s, run by The Economic League, had destroyed the careers of thousands of trade unionists and political activists. With Labour’s victory, we hoped that blacklisting would be outlawed.

Instead, Labour took a piecemeal approach. They passed the Data Protection Act in 1998, which extended protections to personal data, and followed it up with the Employment Relations Act 1999. Section 3 of that Act defined blacklists and empowered the Secretary of State to issue regulations to make them illegal. But Labour failed to follow through. It took more than a decade for any meaningful regulation to be enacted. By that time, the Consulting Association had continued the work of the Economic League, with thousands of construction workers being blacklisted by the country’s largest firms.

When Labour finally acted in 2010, under pressure from the media and the Information Commissioner’s Office (ICO), the Blacklisting Regulations introduced by Peter Mandelson were woefully inadequate. They provided no meaningful deterrence for companies involved in blacklisting and offered little remedy for workers who had suffered years of discrimination.

This failure can be traced back to Labour’s reluctance to tackle the root problem: the imbalance of power in employment contracts. The laws they introduced failed to address the structure of employment relations, leaving a system in place that allowed employers to outsource blacklisting to third-party contractors with little consequence.

 

Will Labour’s 2024 Bill Repeat the Same Mistakes?

 

Now, with Labour once again in government, the question remains: will they learn from their previous failures? The new Employment Rights Bill, part of the "Making Work Pay" initiative, promises significant reforms, including a ban on zero-hour contracts, day-one rights for workers, and strengthened protections against unfair dismissal. Angela Rayner’s rhetoric has been strong, particularly regarding blacklisting. She has pledged to outlaw predictive technologies for blacklisting, close loopholes that allow third-party contractors to blacklist workers, and empower employment tribunals to order the destruction of blacklists.

These are positive steps, but they don’t go far enough. By focusing on specific technologies and enforcement mechanisms, Labour risks missing the bigger picture. The problem with blacklisting isn’t just about how lists are compiled; it’s about the power dynamics in employment contracts that allow politically motivated employers to discriminate against workers in the first place. Without addressing the root cause—the inherent imbalance of power between employer and employee—Labour’s reforms may prove as ineffective as those of the 1990s.

Political Discrimination: The Missing Piece of the Jigsaw

 

One of the most glaring omissions in Labour’s 1999 Employment Relations Act was the failure to explicitly outlaw political discrimination in employment. The Labour Party has historically been ambivalent about this issue, often prioritizing economic over political concerns. But for many workers, particularly trade unionists and activists, political discrimination has been at the heart of blacklisting practices.

The new Bill makes no mention of political discrimination, focusing instead on technological and procedural reforms. This is a serious oversight. In today’s world, where web scraping, social media surveillance, and AI-driven data analysis are becoming standard tools for employers, political views can easily be used to exclude workers from jobs. The current legal framework is simply not equipped to deal with these realities. If Labour is serious about ending blacklisting, they need to broaden their focus beyond the mechanics of list-making and address the root problem: the unjust exclusion of workers based on their political beliefs or affiliations.

The Gig Economy and the Outsourcing of Blacklisting

 

Another key issue that Labour’s new proposals fail to address is the rise of the gig economy and the increasing use of third-party contractors and employment agencies. In the 1990s, blacklisting was largely confined to the construction sector, but today, similar practices are found across all industries. The gig economy, with its reliance on self-employment and short-term contracts, has made it easier for employers to discriminate against workers without being held accountable.

Labour’s focus on closing loopholes for third-party contractors is a step in the right direction, but it doesn’t go far enough. The Bill needs to address the fundamental problem of precarious employment, which allows blacklisting to thrive. By tackling the misuse of agency work, zero-hour contracts, and bogus self-employment, Labour could make it harder for employers to evade responsibility for blacklisting. But without a broader reform of employment contracts, these measures will only scratch the surface

 

Will "Making Work Pay" Deliver?

 

Labour’s “Making Work Pay” policy document lays out an ambitious vision for reforming workers' rights, and there is much to commend in it. The commitment to banning zero-hour contracts, strengthening sick pay, and ensuring family-friendly workplaces will benefit millions of workers. But when it comes to blacklisting, the proposals still fall short. By focusing on the technical aspects of blacklisting—predictive technologies, tribunal powers, and third-party accountability—Labour risks ignoring the deeper structural issues that allow blacklisting to continue.

 

To truly stamp out blacklisting, Labour needs to take a much bolder approach. This means not only outlawing blacklists but also addressing the power imbalance in employment contracts that enables political discrimination. Without these deeper reforms, Labour’s new Bill may prove no more effective than the failed attempts of the 1990s.