Employment Rights Bill amendments: clarifying key provisions

On the 27th November, the Government tabled proposed amendments to the Employment Rights Bill. The amendment paper can be found  here.  It was always highly ambitious of the Labour Government to promise to lay before Parliament an Employment Rights Bill within 100 days of them coming into office. Whilst they did meet that target, these amendments have been necessary to clarify some areas of uncertainty and include provisions which had been omitted from the original Bill.

Time limits for making claims

It is proposed that a new Schedule is inserted into the ERB which would increase time limits for making claims in employment tribunals ( and in certain cases, Industrial Tribunals in Northern Ireland) from three to six months. This is the most significant of the proposed amendments, giving potential Claimants much more time to pursue any claim through the ET. Whilst this was mentioned by Labour in the lead up to the General Election this wasn’t included in the Employment Rights Bill in its original form. This may very well have been an omission due to Labour wanting to meet their commitment to produce the Employment Rights Bill within 100 days of them coming into office.

Day one unfair dismissal rights – clarification on the “initial period of employment”

There has been an amendment proposed to insert into the Employment Rights Bill a provision whereby the “initial period of employment”, which will be set out in future Regulations, must be not less than 3 months and not more than 9 months from the day on which the employee starts work. This provides some idea of what the length of the initial period of employment may be, but as there will be further regulatory developments this doesn’t move us on much further at present.

There is also a proposed amendment which would enable the Secretary of State to specify the maximum amount of the compensatory award available where an employment tribunal finds that an employee has been unfairly dismissed during the “initial period of employment.”

Guaranteed hours

Where a shift is cancelled, moved or curtailed at short notice, it is proposed that a tribunal will have discretion on whether to award compensation and if so, the amount of such compensation. When making this determination an employment tribunal will need to “have regard, in particular, to the seriousness of the matter complained of.” In addition, a worker’s right not to be subjected to a detriment will include cases where a detriment has been suffered on the ground that the worker is, or the employer believes the worker is, entitled to a guaranteed hours offer.

There is a proposal to include an additional obligation on employers to give a notice to a qualifying worker where the employer’s duty to make a guaranteed hours offer to the worker does not apply, or an offer already made is treated as having been withdrawn. There will also be a duty on employers to ensure workers who have the potential to qualify for a guaranteed hours offer are aware of, and have access to, certain information – which will be specified in Regulations.

There are some quite complicated amendments proposed with regard to different scenarios where shifts are either curtailed, moved or cancelled, and guaranteed  hours generally. It is anticipated that there will be some accompanying explanatory notes to cover these amendments and how guaranteed hours will work in practice.

Procurement Act 2023

By way of reminder, this Act is due to come into force in early 2025. There are amendments proposed which would be inserted into the Procurement Act which would extend powers and duties to the Scottish Ministers and Welsh Ministers and devolved Scottish and Welsh authorities. The proposed amendment would also clarify that the duty to publish a code of practice would not depend on the making of the Regulations.

Equality Action Plans

We may see future Regulations requiring employers of a certain size to produce Equality Action Plans. The amendments proposed would add menstrual problems and menstrual disorders to “matters relating to gender equality” which would form part of the action plans.

School support staff

There is an amendment proposed so that the definition of “school support staff” is extended to people who do not work at an Academy but are employed by the proprietor of an Academy to carry out work of a particular kind for the purposes of one or more Academies. The work of a particular kind will be specified in Regulations

Access agreements

There is an amendment proposed so that the access agreements which can be put in place between a Trade Union and an employer do not include access to dwellings. There is also a proposal whereby the Secretary of State would be able to prescribe matters to which the CAC must have regard in considering an application for a determination about access.

Non-disclosure agreements: harassment

A new clause is proposed to be inserted into the ERB by Layla Moran MP, which would render void any non-disclosure agreement “insofar as it prevents the worker from making a disclosure about harassment (including sexual harassment.)”

Substitution clauses

A new clause is proposed to be inserted into the ERB by Nick Tomothy MP, which would “prohibit the use of substitution clauses, which allow companies to permit their suppliers – including some delivery couriers – to appoint a substitute to supply services on their behalf.”

The Employment Rights Bill will continue its passage through Parliament. Further changes may be made as this is scrutinised by MPs and Peers alike.