11 Oct 2024
Much of the detail will come later through statutory instruments, which we don’t have yet, and some aspects will be refined after consultations that haven’t been issued.
Plus, several key elements have been deferred to future legislation.
That said, this bill still covers a lot of ground. While some changes are minor, others are quite significant.
We don’t yet know the commencement date for this legislation, but it’s likely to come into effect around October 2026 although some elements may be introduced sooner.
Currently, employees can’t claim unfair dismissal until they have two years of service, except in cases like whistleblowing or discrimination.
Under the new Bill, employees will have the right to claim unfair dismissal from the day they start work, although they won’t be able to claim if their contract is withdrawn before their start date.
This is a major shift and something employers will need to prepare for!
There is to be a consultation on a new statutory probationary period.
We expected this to be a six-month period but recent rumours suggest the government favours a nine-month period.
The two year qualifying period will go, and a lot more employees, the government estimates 9 million, will have unfair dismissal rights.
In due course, there will need to be much more careful monitoring of people during probationary periods, so building this in now if you don’t have it in place, is a good idea.
It will be automatically unfair to dismiss an employee for refusing a contract variation.
That’s the headline.
In more detail, any dismissal will be automatically unfair (and remember there will be no two year qualifying period once this comes into force) if the principal reason for dismissal is either that the employee refused to agree to a variation of contract sought by the employer, or to enable the employer to recruit another person (or rehire the employee) under new terms but with substantially the same duties.
The new laws in the Employment Rights Bill are complicated, and I am still getting to grips with them properly.
These new provisions replace The Workers (Predictable Terms and Conditions) Act 2023, which never came into force and which is expressly repealed by clause 5 of the Workers Rights Bill.
3a There is a guaranteed hours provision for zero hour workers.
If a worker is working under a zero hours contract, the employer is obliged to offer a ‘guaranteed hours contract’.
That ‘guaranteed hours contract’ will reflect the number of hours the employee worked during the previous reference period (which I am struggling to find the definition for at this present time).
3b Zero hour workers will have a right to reasonable notice of a shift
If the worker is on a zero hours contract or works under a contract where the shift patterns aren’t known in advance they will need reasonable notice.
The Bill contains provisions for Regulations which set out what is to be presumed to be reasonable, or insufficiently reasonable, notice of a shift – but we don’t have that detail yet!
3c Zero hour workers have a right to reasonable notice of cancellation of a shift, or changes to a shift.
This prevents employers from booking someone onto a shift, and then cancelling them just before the shift is due to start.
Again, we’ll find out in due course what is to be presumed to be reasonable, or insufficiently reasonable, notice of change or cancellation of a shift – but we don’t know yet.
Employers have a duty to take reasonable steps to prevent sexual harassment (that’s harassment involving conduct of a sexual nature).
Until 26 October, employers are not liable for third party harassment.
From 26 October 2024, the EHRC can enforce a slightly abstract duty on employers to take reasonable steps to prevent third party harassment, but the employee who suffers third party harassment cannot, themselves, sue.
Clause 16 of the Employment Rights Bill inserts a new s40(1A)-(1C) into the Equality Act. It places a new duty on employers to take ALL reasonable steps to prevent sexual harassment of its staff by third parties. Note all reasonable steps. Not just ‘reasonable steps’, but all reasonable steps
Currently, employees can request changes to their working arrangements (i.e. flexible working) up to twice a year.
Employers must deal with these requests in a ‘reasonable manner’ and can refuse the request for one or more of eight reasons (e.g. extra costs, not able to meet customer demand).
The Government said it will “change the law to make flexible working the default for all, unless the employer can prove it’s unreasonable”.
But the proposed legislation provides that the employer only needs to state the grounds of refusing the application and explain why they consider it reasonable to refuse the application on one or more of the grounds that already exist (things like the burden of additional costs or the inability to recruit additional staff).
So it’s not much of a change; employers just need to give clearer reasons.
Paternity Leave and Parental Leave will be Day One rights.
Bereavement Leave seems to be extended to anyone who is bereaved although the detail of the relationship that the employee must have had with the deceased isn’t clear.
Bereavement Leave in the circumstances of losing a child will remain at two weeks, other Bereavement Leave is to be one week.
There are protections against dismissal of employees on maternity leave or dismissal for reasons relating to pregnancy, but at present there is minimal specific protection for new mothers.
The Bill contains proposals to strengthen protections for pregnant employees and returning mothers.
Timescales for new mother protection are not set out, but it is likely to be for six months after a return to work.
We’ll need to await consultation for more details.
Statutory sick pay will be paid from the first day of sickness (it’s currently three days waiting and payment from day four).
Also, the lower earnings threshold for SSP will be removed.
The Secretary of State will set SSP as a percentage of pay.
The Bill contains increased obligations (for employers with over 250 employees) to have action plans on gender pay reporting and supporting employees going through the menopause.
When deciding whether there are 20 or more proposed redundancies, the number of redundancies across the whole business should be totted up, and separate shops/establishments should not be treated separately.
This is also important as collective redundancy obligations can be quite onerous for employers, but they provide important safeguards for employees.
These safeguards will now get better as this loophole will be closed.
Clause 45 provides that s1 statements will, once the Bill is enacted and comes into force, have to include a written statement that the worker has the right to join a trade union.
The exact details of what needs to be included will come later, in a statutory instrument.
There are several key reforms the Government promised in its “Making Work Pay” papers, but they haven’t made it into the Bill just yet.
However, the Government has committed to implementing these in the future. These include:
We don’t have specific dates for when these will be revisited, but it’s likely the Government will focus on the current Bill’s priorities first.
I will release a further update when more information is released, if you have any questions in the meantime on how these changes could affect your business please do contact us.
IMPORTANT DISCLAIMER: This briefing note has been prepared swiftly following publication of the Employment Rights Bill. Check anything in this note against the draft legislation, or seek professional advice. The Employment Rights Bill is not yet in force, and it is not known when it will come into force.
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