Although the government has complied with its promise of a new Employment Rights Bill within 100 days of taking office, a lot of the changes are subject to further consultation and guidance. Once we know more, we will continue to send out further updates.
The Bill itself is 156 pages long and we are still working through this and digesting this ourselves, however, we have set out a snapshot of some key changes to be aware of:
Unfair dismissal
The right not to be unfairly dismissed will become a day one right. This is a significant departure from the existing two-year qualifying period. This will be subject to the ability to dismiss during a probationary period if a minimum procedural standard is followed by the employer. This is an area in which consultation will take place, particularly concerning the duration of the initial statutory probation period. The government has expressed a preference for this period to be nine months.
Zero-hours contracts (also known as casual contracts)
The government wants to ensure that all jobs provide a baseline level of security and predictability. To attain this, there will be a new right for workers to be offered a guaranteed-hours contract based on the number of hours regularly worked, which as of yet, is unspecified, reference period (expected to be 12 weeks).
The new provisions also provide that workers on zero-hours contracts will be entitled to reasonable notice of shifts and to compensation when shifts or working times are cancelled/curtailed by an employer without reasonable notice.
Flexible working
Flexible working is to become a default for all workers. The Bill adapts and builds on the April 2024 reforms to flexible working – employees can already request flexible working from their first day in a job, however an employer can refuse this if it can prove that this is not reasonably feasible. There will be a presumption that flexible working requests should be approved unless the employer can reasonably prove that flexible working is not viable on specified business grounds. The Regulations will set out more detail about the steps an employer must take to do so.
Statutory sick pay
SSP will be payable from day one of absence, therefore the current 3 day waiting period for entitlement to SSP will no longer apply. The cost of SSP is no longer recoverable from the government, so employers who do not currently offer staff sick pay from the first day of absence will face additional financial burdens.
The requirement to earn at least the lower earnings limit, currently £123 per week, to be entitled to statutory sick pay will be removed by the Bill. Therefore, those individuals who only work a small number of hours per week, apprentices and young workers will benefit from this.
Paternity, parental and bereavement leave – day one rights
The Bill will also create day one rights in relation to paternity leave and unpaid parental leave. Currently, employees are required to have 26 weeks’ service to qualify for those rights.
A new day one right will also apply to paid bereavement leave. This right will be limited to one week’s bereavement leave where the death is someone other than the individual’s child. The Regulations will specify which relatives this right will apply to.
‘Fire and rehire’ – further restrictions
A statutory Code of Practice on fire and rehire/dismissal and reengagement came into force on 18 July 2024, but this will be enhanced by further protections. It will be automatically unfair to dismiss an employee for refusing a contract variation. Employers will only be able to offer to re-engage workers on new terms where there is a genuine need to avoid serious financial issues that may threaten the business and there is no alternative to ensure the viability of the business.
Protection from Harassment
The Bill further enhances the duty to prevent sexual harassment, due to come into force on 26 October 2024), by requiring an employer to take ‘all’ reasonable steps to prevent harassment. Currently, it is “reasonable steps” only. It also includes a new power to be able to specify in the regulations what “all reasonable steps” will mean. As it stands at the moment, what is considered to be “reasonable steps” relies on non-statutory technical guidance issued by the Equality and Human Rights Commission (EHRC).
There are also provisions designed to re-introduce protection against third party harassment, but an employer will only be liable if they have failed to take all reasonable steps to prevent this.
Additionally, for the purposes of whistleblower protection, reporting sexual harassment will amount to a protected disclosure.