Employment Rights Bill: Overview of Proposed Amendments

Zero Hours Contracts

(The provisions regarding agency workers seem to be Government backed, the other proposed amendments have been tabled by opposition peers so unlikely to be included within the ERB)

• There are significant changes proposed relating to the right to offer guaranteed hours to agency workers. The amendments require for the terms relating to pay in a guaranteed hours offer made by a hirer to a qualifying agency worker to be no less favourable than the worker had been previously been working under, or not less favourable to a comparable worker who does broadly similar work. These provisions effectively build in pay parity tests to protect agency workers in this situation.

• There is a proposed amendment to clarify that where a qualifying agency worker accepts a guaranteed hours offer from a hirer, that individual will become a worker (which provides some clarity around employment status in this scenario).

• It is worth noting that within the amendment regarding agency workers and guaranteed hours, there is a requirement for the Secretary of State to have regard to the benefit of agency workers of receiving a guaranteed hours offer, and the “desirability of preventing this Part of this Schedule from having a significant adverse effect on hirers who are dealing with exceptional circumstances.” There are no further details on what these exceptional circumstances may be.

• There is a proposed amendment to change the provision in the ERB from a requirement for an employer to offer guaranteed hours to a right to request guaranteed hours by an employee. Note that there is reference to “employee” here in the explanatory notes, whereas the ERB refers to “qualifying workers”. I think this is simply a slip up in terms of terminology, but does add some confusion here when reviewing this.

• The right to request the guaranteed contract would apply for those workers that work for “eight hours or fewer per week” which is defined as the minimum number of hours. This would be over a reference period of 26 weeks beginning with the first day of the worker’s employment.

• With regard to the notice that must be given in order to avoid having to make a short notice cancellation payment, the amendment states that this must be at least 48 hours before a shift is due to start.

SSP

(Tabled by opposition peers, so unlikely to be Government backed)

• There is a proposal which will “preserve” a minimum one day waiting period for SSP, by reducing the qualifying threshold from four days to two, “rather then introducing a day one entitlement”, along with a proposed amendment that would exempt employers from the SSP requirements if they already provide a contractual scheme that pays at least 80% of normal weekly earnings. We have seen these proposed amendments previously, however, what is new, is the proposed introduction of a rebate scheme for small and medium sized enterprises for the costs incurred by SSP.

Extension of the entitlement to bereavement leave

(This has been tabled by a Labour peer – likely to be Government backed)

• There is a proposal for the entitlement to bereavement leave to be extended to those employees who have suffered a pregnancy loss. Pregnancy loss would be defined as the ending of a pregnancy after less than 24 weeks of pregnancy in any way other than by a live birth, or the failure of an embryo to become implanted following a transfer carried out in the course of providing treatment services within the meaning of the Human Fertilisation and Embryology Act 1990.

• Note that there is currently a right to parental bereavement leave which applies on the death of a child under 18, including a stillbirth after 24 weeks of pregnancy. The leave entitlement is for one week, two continuous weeks or two separate weeks.

Changes to contractual duties of confidentiality relating to harassment and discrimination

(This has been tabled by a Labour peer – likely to be Government backed)

• The proposed new clause to be inserted in the ERB provides that an agreement between an employer and a worker is void in so far as it “purports to prevent the worker making an allegation or disclosure of information relating to certain work-related harassment and discrimination”.

• In the Government press release issued on the 8th July, it states: If passed, these rules will mean that any confidentiality clauses in settlement agreements or other agreements that seek to prevent a worker speaking about an allegation of harassment or discrimination will be null and void. This will allow victims to speak freely about their experiences and their employer able to support them publicly.

• This wasn’t included in the ERB Roadmap that was issued recently, so I am not clear when these provisions will take effect.

Amendments to fire and re-hire

(This has been tabled by a Labour peer – likely to be Government backed)

• There is a proposal to amend the provisions in the ERB which currently ban the dismissal of an employee for failing to agree a variation to their contract, unless an organisation can show that they are in the last chance saloon financially. Now, the proposed amendment limits this right to those cases “where the variation of the contract of employment was of a particular kind”. These are called “restricted variations” and include a reduction or removal of an entitlement to any sum payable to an employee in connection their employment; a variation of any terms and conditions relating to pensions or pension schemes; a variation to the number of hours an employee is required to work; a variation of the timing or duration of a shift ; a reduction in the time off which an employee is entitled to take; and the insertion of a clause in a contract of employment “enabling the employer to make any variation within any of the preceding paragraphs” i.e. including a variation clause in the contract allowing an employer to change those terms and conditions in the future without agreement. The Secretary of State may also make future Regulations on these “restricted variations.”

• If an employee is dismissed and then re-engaged to implement new contractual terms, and this change is not for any of the reasons outlined above, then this would not trigger automatic unfair dismissal protections. Instead, when considering if a dismissal is fair or unfair a tribunal must consider the reason for the variation, any consultation carried out by the employer with the employee about varying the employee’s contract of employment, if the employer carried out consultation with the trade union (where recognised), if the employer consulted with the any other person representing the interests of the employee who had authority to be consulted with on the employee’s behalf. A tribunal will also consider what has been offered to the employee in return for agreeing to the variation and any matters the Secretary of State may include by way of regulations.

• In the redundancy provisions, an amendment is proposed whereby it would be an automatic unfair dismissal for any employee who is dismissed to enable them to be replaced on a like-for-like basis with someone who is not employed but is, for example, an agency worker or a self-employed contractor. This covers the P & O scenario – we did expect to see in the ERB as originally drafted. There is an exception however, in circumstances where the reason for the replacement is to address “financial difficulties of the employer and the employer could not reasonably have avoided the need to replace the employee.”

• The amendments confirm and clarify that dismissals amounting to a place of work redundancy are not to be treated as automatically unfair.

Whistleblowing

(This has been proposed by an opposition peer so unlikely to be Government backed)

• There are significant proposed amendments regarding whistleblowing protection. One such amendment proposes the establishment of an “Office of the Whistleblower”, which would protect whistleblowers, oversee whistleblowing processes and enforce compliance with reporting standards. It also allows dismissed whistleblowers to refer their cases to the Office and expands the definition of protected disclosures to over various public interest concerns, including criminal offences and mismanagement of public funds.

• The meaning of “protected disclosure” is clarified, along with a new clause requiring the Secretary of State to make regulations strengthening whistleblower protections by broadening unfair dismissal grounds and obliging certain employers to take reasonable steps to investigate protected disclosures. There is also a proposal for those who “intentionally or recklessly submits a whistleblower to a detriment” will be guilty of an “offence”.

Access requests by Trade Unions and “secondary” industrial action

(This has been proposed by an opposition peer so unlikely to be Government backed)

• The amendment to the ERB proposes that a trade union cannot give an access request if the employer is a small or medium sized business, unless the Secretary of State has provided for this in regulations. Such regulations (where they affect small or medium sized businesses) may not be made before the 6th April 2028, and without prior consultation and publication of an impact assessment.

• An amendment is proposed which would remove the provisions that render unlawful all forms of “secondary” industrial action including the right of pickets to picket places of work other than their own.

I understand that the bill is returning to the House of Lords next week. We will keep you updated on further developments.