Further amendments to the Employment Rights Bill

A series of new amendments have been made to the Employment Rights Bill (“Bill”) which is currently under consideration. We explore some of the key amendments below.

Unfair dismissal

The proposal was to make unfair dismissal a day one right. The Bill also introduced an ‘initial period of employment’, during which employers could dismiss staff in certain circumstances using a simpler process. 

However, the House of Lords (“HL”) has now voted to remove the initial period entirely. Instead, the Bill has been amended to reduce the qualifying period from two years to six months. 

When the Bill returns to the House of Commons, the government is likely to reject the change, and the HL must then decide whether to stick with the original proposal or its preferred option. 

Guaranteed hours

There have been a number of amendments on the guaranteed hours provisions. We focus on the main ones.

The latest changes would require end users of agency workers to make a guaranteed offer to an agency worker on terms no less favourable than those which the worker had been working under previously. 

Changes further clarify that when an agency worker accepts a guaranteed offer from the end hirer, they will become a worker (not an employee). However, ultimately if this was challenged, employment status would be determined based on a review of all the working arrangements. 

Further details regarding exceptions to the new rules are awaited, as are details which will be contained in regulations to supplement the Bill. 

Non-Disclosure Agreements

The Bill now includes new proposals which seek to void non-disclosure agreements relating to harassment or discrimination.

Any provision that seeks to prevent a worker alleging or disclosing any harassment or discrimination will be void. The prohibitions also extend to any disclosures about the employer’s response to the harassment or discrimination, or the employer’s response to the making of the allegations or disclosure. 

There may be limited exceptions for certain excluded agreements, which are yet to be established. This proposal will represent a significant change for settlement agreements moving forward.

Fire and Rehire

The original proposal sought to prohibit dismissing an employee for refusing to accept a change in ANY contractual terms (unless the business was in extreme financial difficulty). This practice is known as “fire and rehire”. It was also proposed to make any such dismissals automatically unfair. 

The proposed amendments relax this prohibition somewhat, so that the practice of “fire and rehire” will only be automatically unfair where the dismissal relates to specific restricted contractual rights, such as the employee’s pay, required hours, pension, shifts times and length, time off rights and other changes to be defined by regulations. In addition, dismissals to impose a flexibility clause seeking to cover changes to these terms will also be automatically unfair, as an anti-avoidance measure. 

Where an employee is dismissed and re-engaged to impose a contractual change not caught by the above, the dismissal will not be automatically unfair. Instead, it will be judged accordingly to the usual unfair tests, together with a requirement to consider the reasons for the change, consultation (collective and individual) and if the employee was offered anything.

The proposed amendments also extend the fire and rehire rules to prohibit contractors being engaged to replace the employee if they are going to do substantially the same work (“fire and replace”). Therefore, the dismissal and engagement of contractors in this way, except where the business is facing financial collapse will be automatically unfair. 

Bereavement Leave

The latest amendments seek to extend the proposed new right to bereavement leave to include a day-1 right to a week of unpaid leave for employees who have experienced pregnancy loss earlier than 24 weeks. 

If you have any queries in relation to any of these matters, please contact:

Vicky Beattie 0161 302 8342 vicky@bbslaw.co.uk

Christina Hill 0161 302 8364 christina.hill@bbslaw.co.uk

Paul Stedman 0161 302 8380 paul@bbslaw.co.uk

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