The Employment Rights Bill – what do you need to know

Unfair Dismissal

The current 2-year service eligibility requirement to claim ordinary unfair dismissal will be removed and employees will be able to claim unfair dismissal from the start of employment.

Consultation is going to take place on a statutory probationary period during which time it is expected that an employer will still be able to dismiss an employee (probably by following a prescribed procedure) and avoid unfair dismissal however it is unclear at this stage how the procedure will work.

It is unlikely the change will come into effect for a further 2 years so nothing will change for now.

Statutory Sick Pay

SSP will become payable from day 1 so the current 3-day qualifying period will be removed. The lower earnings limit is being removed so all eligible employees regardless of earnings will be entitled to SSP.

The flat rate of SSP is being removed and instead a percentage rate of normal pay will replace this. We do not know yet what that percentage will be as it is subject to consultation.

Changing Terms and Conditions

The Bill will make it automatically unfair to dismiss an employee because they have refused to accept a variation to their contract or in order to employ someone else on the varied terms to carry out substantially the same role.

There will be only a limited exception to this where a company’s financial position is such that it would collapse if it did not fire employees and reengaging them on the new terms.

Currently employers need to show a good business reason to avoid unfair dismissal however in future an employer who needs to vary terms in order to avoid reaching dire financial straits or for any other reason is not going to be covered by the new exception.

Exploitative Zero Hours Contracts

The Bill does not ban exploitative zero hours contracts or define what these are, although this is how it has been reported.

The Bill actually provides workers with no or low guaranteed hours the right to a guaranteed hours contract which will reflect the number of hours they have worked in a reference period. The reference period has not been defined but it is likely to be 12 weeks.

There will also be a right to reasonable notice of shifts or cancellation of a shift. The practice of booking someone onto a shift and cancelling at short notice or cutting hours short is likely to be prohibited.

It is unclear what the compensation will be for breaches.

Flexible Working

Moving forward any refusal of flexible working will need to be reasonable and an employer must explain the reasons for refusal in writing.

The current 8 grounds for refusal and penalty (8 weeks’ pay capped at £5,600) for breaching the statutory flexible working regime will remain.

Paternity, Parental and Bereavement Leave

Paternity and Parental leave will become day 1 rights so there will no longer be any length of service eligibility requirements.

Bereavement leave is being extended to anyone who is bereaved. The details of the relationship which an employee has to have with the deceased is unclear. However, it may follow the current dependant classification which includes spouse, partner, child, grandchild, parent, someone who relies on the employee for care or someone who lives in their household (excluding tenants, lodgers or employees).

Bereavement leave when losing a child will remain at 2 weeks and will be 1 week in other circumstances.

Protection from Harassment

On 26 October 2024 the new requirement that employers take reasonable steps to prevent sexual harassment of employees in the course of their work come into force. The Bill extends this so that employers must take all reasonable steps to prevent harassment.

This is a higher threshold and will apply to all harassment not just sexual harassment. What will count as all reasonable steps is not yet known.

Disclosing sexual harassment will also be added to the list of qualifying disclosures so that a worker reporting sexual harassment will be protected under whistleblowing legislation if the disclosure meets the test for whistleblowing.

This will protect the employee from detriment as a result of making the disclosure.

Enhanced Protection for Pregnancy and New Mothers

The bill contains proposals to increase protection but there are no details on how this will work.

It is expected protection will last for 6 months following return to work.

Collective Redundancy Consultation

Collective consultation currently has to be undertaken when 20 or more redundancies are proposed in 90 days at 1 establishment, not across an entire organisation. The Bill changes this so that the numbers apply across the whole organisation so businesses will need to be aware of what is happening at other branches and location when determining whether there is an obligation to collectively consult.

Written Statements of Particulars of Employment

All statements will in future have to include confirmation that workers have the right to join a trade union.