Employment Rights Bill – employer’s briefing

On 10^th October the government produced its Employment Rights Bill, which is due to have its second reading in parliament on 21^st October 2024.

While many of the more newsworthy changes from Angela Reynor’s original green paper have been watered down, delayed or dropped entirely, the Bill marks substantial changes for employers nonetheless.

Many of the issues raised will be subject to consultation before becoming law, with most of the changes expected to be implemented before 2026. The exception to this is the removal of the 2 year qualification period for unfair dismissal, which the government has stated will not become law until autumn 2026.

Removal of the 2-year qualification period to bring a tribunal claim for unfair dismissal

Currently employees need 2 years’ service to bring an ordinary unfair dismissal claim (other types of claim can be brought earlier), Labour’s intention is to make this a day 1 right, albeit subject to a statutory probation period (SPP) of 6 – 9 months (TBC).

During SPP employers can dismiss without fear of a claim, as long as dismissal is for a potentially fair reason (e.g. poor performance) and as long as a process is followed – the process also TBC, but this is likely to require a meeting with the employee and written confirmation of the reasons for dismissal.

End of ‘fire and rehire’

The Bill will prevent employers using ‘fire and rehire’ practice in order to secure changes to terms and conditions, unless the employer can show evidence of financial difficulty and that the need to make the change in contractual terms was not reasonably avoidable.

The Bill will require courts and tribunals to regard any dismissal using fire and rehire as ‘automatically unfair’, justifiable only by the limited exceptions, and presumably employers will also have to show that they made efforts to gain the agreement of their employees before termination/reengagement took place.

Zero hours workers

Zero hours workers who have regular hours over a reasonable period of weeks (a reference period TBC) will have a right to be offered a more stable contract (though they won’t have to accept it). Zero hours workers will also be entitled to compensation for cancelled shifts.

These provisions will be extended to ‘low hours’ workers to prevent employers circumnavigating the regulations by offering minimal hours contracts.

Flexible working a day 1 right

Much like existing regulations, employers opting to refuse flexible working requests will need one of 8 reasons to refuse a request. The law will put the onus on employers to justify that it was reasonable to refuse a request. It is also expected that employers will need to put the reason for refusal into writing to the employee.

Statutory sick pay for all workers from day 1

Current rules require 3 waiting days before SSP is paid, and limits it to workers earning at least the lower limit for National Insurance Contributions, but the new rules will require SSP to be paid from day 1 of sickness absence and will extend it to the lowest paid workers too – this will add to employer’s admin and costs.

Paternity and parental leave

Currently requiring 6 and 12 months service respectively, these will become a day 1 right.

Bereavement leave

Currently applying to bereaved parents, the right to unpaid leave (which many employers choose to enhance) will be extended to a wider range of bereavements.

Sexual harassment

Legislation arriving towards the end of this month imposes a new duty on employers to prevent sexual harassment. The Bill intends to strengthen the obligation requiring employers to take all reasonable steps…..the inclusion of the word ‘all’ is significant, and will be a higher hurdle for employers who will need to carry out risk assessments, have and publicise a policy, encourage reporting of sexual harassment and have in place the means to properly investigate complaints.

Disclosures of sexual harassment will be regarded as protected disclosures, protecting disclosers from victimisation and detriment.

Third party harassment

Existing legislation exempts employers for liability from harassment of their employees by third parties, the Bill intends to reverse this. Employers will be required to risk assess the likelihood of harassment happening, take steps to prevent it and inform employees of how to report it should it happen.

Collective redundancies

Currently collective redundancy legislation and the enhanced duty to consult is triggered when 20 or more redundancies are proposed in a 90 day period at a single establishment. The Bill will change the ‘single establishment’ to ‘single employer’.

Special protection for women on maternity leave

Currently the law affords women on maternity leave enhanced protections from being made redundant. The Bill extends this period to include pregnancy and 6 months after maternity leave ends.

Equality action plans

Employers with 250 or more employees will need to develop and publish equality action plans covering gender equality, addressing any gender pay gap and outlining how organisations will support employees through the menopause.

Trade unions

In addition to repealing various measures introduced by the previous government, the Bill will require employers to give workers a written statement advising that they have the right to join a trade union. This statement must be given at the same time as providing written particulars of employment, or more commonly, offer letters and contracts.

Other measures will increase a Trade Union’s right to access workplaces to canvass for new members, and will simplify Trade Union recognition procedures.

HR support from JCHR

Labour’s changes will require significant updates to HR policies, handbooks and contracts – All JCHR clients who opt to add HR to their payroll provision will have provision in their contracts for these updates, and in most cases this will not impact on HR support hours available for ad hoc issues arising.