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17 October 2024

462: Key provisions of the new Employments Rights Bill

On 10 October 2024, the Employment Rights Bill was published by the House of Commons, the key provisions of which are as follows:

Day one rights for sick pay, parental leave and unfair dismissal – employees will now be able to qualify for paternity, parental and bereavement leave from the first day of employment. Statutory sick pay waiting periods have been removed and low paid workers, currently below the sick pay threshold, will be able to access the right. The qualifying period for unfair dismissal claims will be removed. A statutory probationary period scheme will also be introduced during which it is proposed that a ‘lighter-touch process’ is intended to apply.

Fire and rehire – the current test to fire or rehire, or fire and hire someone new, is to be changed by the proposed new section 104I of the Employment Rights Act 1996 (the “ERA”). It will now be unfair to dismiss an employee 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, except in very limited circumstances where the employer’s on-going survival is at risk.

Flexible working – the ERA is to be amended so that flexible working must be permitted for an employee unless the employer considers that the application should be refused on one of the grounds outlined in the Act, and the employer’s refusal is reasonable. The grounds are the same as already stated in legislation and the employer must state the grounds for refusal, as well as why it believes it is reasonable to refuse the application.

Zero hours contracts – workers will gain the right to be provided with a guaranteed hours contract that reflects the hours that they have regularly worked during a previous reference period. The guaranteed contract must specify either days of the week and the hours and / or the working pattern that will be offered.

Definition of reasonable steps and the end of NDAs in sexual harassment cases – the duty to prevent sexual harassment will be amplified from ‘reasonable steps’ to ‘all reasonable steps’ in section 40 of the Equality Act. In addition, any disclosures about sexual harassment are specifically excluded from any non-disclosure agreement by being appointed as a new example of a protected disclosure.

Harassment by third parties – the duty to take all reasonable steps to prevent harassment in respect of all protected characteristics of an employee by a third party will be inserted into section 40 of the Equality Act and is now directly enforceable as a standalone right.

Unions and collectivism in the workplace and collective strike rights – there are a number of changes in this area, but a few to note are:

1. Employers will need to inform workers that they have a right to join a trade union.

2. Unions can request to access a workplace and, if refused, can challenge the employer’s refusal before the CAC.

3. When requesting Union recognition, there is a requirement for at least 10% of members of the bargaining group to be members of a Trade Union. 

Sex, ethnicity and disability equal pay – the Bill provides for Equality Action Plans to be made by regulations. In addition, the Government will set up the ‘Office for Equality and Opportunity’, which will oversee the reforms in what will be a separate ‘Equality (Race and Disparity) Bill’, requiring firms to report pay gaps.

Pregnancy discrimination – the new legislation extends maternity protections to women for the first six months of returning to work so that they can only be dismissed in limited circumstances.

Collective redundancies – the requirement to collectively consult will be triggered when an employer is proposing to dismiss 20 or more employees during a 90-day period across all of its business rather than simply at one establishment as is currently the case.

Adult social care – detailed regulations will be introduced to allow for central negotiation of certain social care roles and determination of their pay by the central body.

Single enforcement body – the Fair Work Agency will be introduced which will made up of different enforcement bodies, including the roles of the Director of Labour Market Enforcement. It is to be given similar powers as other agencies and its enforcement powers will be broad.

These points will be discussed further at our seminar on the Employment Rights Bill on 14 November 2024, to attend this event please click here.

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