How Parliamentary ‘Ping Pong’ Is Shaping the Future of the Employment Rights Bill

The House of Lords have raised concerns with certain provisions contained in the Bill, and have proposed amendments, which the House of Commons have subsequently rejected. This process is called “ping pong” and has resulted in somewhat of a stalemate.  One particular concern that the House of Lords had was with regard to the provision contained in the Employment Rights Act which would give workers right to claim unfair dismissal from day one of employment. The current period of employment which is required to bring a claim for unfair dismissal at the employment tribunal is 2 years.

In an attempt to break this deadlock and as a result of “constructive conversations” between trade unions and business representatives, the qualifying period to claim unfair dismissal will now be 6 months service, rather than this be a day one right. This will be mean that the Employment Rights Bill will be amended to reflect the change in service requirements, with the hope by the Labour government that this will now be agreed by the Peers in the House of Lords.

This change was announced via a Government statement, which goes on to say that to further strengthen protections, the Government will ensure that the qualifying period for unfair dismissal claims can only be varied by primary legislation and that the “compensation cap will be lifted”. The use of primary legislation means that subsequent governments would only be able to change the qualifying period to claim unfair dismissal if they pass a further Act of Parliament. The reference to the lifting of the compensation cap is unexpected, and it is unclear what “lifted” means. It may mean that the statutory cap on the amount of compensation that a Claimant can be awarded by an employment tribunal for unfair dismissal is increased (this is currently set at £118,223), or removed altogether. Or it may be that the cap of 52 weeks pay is lifted but the upper compensatory cap is retained. We shall need further clarification on this but it does further add to the uncertainty that organisations are currently facing when planning for the changes to employment law and practices contained in the Employment Rights Bill.

So does this mean the Employment Rights Bill will now receive Royal Assent?  

We do not know as yet if the Peers will now agree to the rest of the provisions in the Employment Rights Bill as it stands. The concession regarding the day one unfair dismissal rights has already brought criticism from Labour back benchers and Trade Unions, although it does seem to be acknowledged by some Unions that the priority was for the Employment Rights Bill to receive Royal Assent, to ensure that the additional rights for workers were not delayed indefinitely by the stalemate which currently exists between the House of Lords and the House of Commons. By agreeing with the 6 month qualifying period for a claim for unfair dismissal, the Government will hope that the Lords will now back down on the remaining points of contention – this is not guaranteed however, and we shall need to wait to see if the ERB receives Royal Assent by Christmas, which seems to be a key Government and Trade Union objective.

The Employment Rights Bill will be going back to the House of Commons on the 8th December. We shall then need to see what happens when that version of the ERB goes back for further scrutiny in the House of Lords.