The Employment Rights Bill continues to proceed through Parliament, and is due to reach the report stage on 11 March 2025. In advance of that, the Government has introduced several significant amendments to the Bill. It has also published responses to five consultations launched last year in relation to statutory sick pay, zero-hours contracts arrangements for agency workers, remedies in collective redundancy consultation cases and trade union legislation.
We summarise some of the key points from the amendments to the bill and the consultation responses here:
Collective redundancy consultation
Currently, if an employer proposes to make more than 20 redundancies in a 90 day period “at one establishment”, it must carry out a collective consultation process before making any redundancies. Initially, the Bill proposed to remove the reference to “one establishment” in its entirety. This would have meant that redundancies made across the whole organisation would need to be counted, and would mean that some large multi-site employers could have found themselves in a state of almost constant collective consultation.
In what appears to be one of the few material concessions the Government has made in favour of employers, the Bill has been amended to mean that collective consultation will now be required where there are 20 or more redundancies “at one establishment” OR where another threshold is met. Details of that threshold are yet to be confirmed. However, it is likely that this will be based on redundancies across all establishments and may be expressed as a percentage, or a higher number (for example the lower of 10% or 100 employees across the business as a whole).
The impact this will have will depend on how the Government defines the alternative threshold.
Another major change is that the maximum protective award where an employer fails to collectively consult on redundancies has been doubled, from 90 to 180 days’ pay. This will significantly increase the risks associated with not handling collective redundancy processes correctly.
Fair Work Agency
This amendment will mean that the Fair Work Agency will have enhanced powers, including the ability to bring Employment Tribunal claims on behalf of workers, even if they don’t want to bring a claim themselves. It will also have the power to pursue employers for unpaid holiday pay and sick pay and to impose financial penalties. Similarly, it will have the power to provide legal assistance for employment cases, with the Fair Work Agency’s costs being potentially recoverable from the employer if the claim succeeds. This is a significant change and could lead to a scenario whereby employers
are faced with increased claims driven by the Fair Work Agency in scenarios where an employee may previously have been reluctant to pursue a claim.
Statutory Sick Pay (SSP)
Eligibility for SSP has been extended to include those who earn less than £123 per week. These employees will now receive the lower of either 80% of their average weekly earnings, or the standard SSP rate (set to rise to £118.75 per week from April 2025).
The Bill will also abolish the previous four day waiting period, meaning that SSP will be payable from the first day of sickness.
Zero-hours contract measures to extend to agency workers
The Bill has been amended to include agency workers in the new right for workers to be offered guaranteed hours if they are on a zero hours or “low hours” contract. This change will be welcomed by trade unions, who were concerned that businesses would try to circumvent the new law by hiring agency workers.
Agency workers will also be granted the right to reasonable notice of shifts. Similarly, agency workers will also be entitled to compensation if shifts are changed at short notice.
The amendments also introduce a potential new claim that would apply in circumstances where an employer has tried to manipulate or avoid their obligations in this regard.
‘Fire and rehire’
The Bill will make it automatically unfair for an employee to be dismissed for refusing to agree to a variation of their contract of employment or where they are dismissed to allow the employer to hire a new employee or to re-hire them under varied terms.
The Government was consulting on whether to introduce interim relief for this type of claim. The Government has decided against this, but will still proceed with its plan to make the practice of
“fire and rehire” automatically unfair.
Dismissals during/after pregnancy
The government has provided further clarity on its intention make it unlawful to dismiss employees who are pregnant, on maternity leave or have returned from maternity leave in the last six months, except in specific circumstances. The amendments show that regulations detailing the relevant notice provisions, evidence and “other procedures” that will need to be adhered to will follow.
Miscarriage bereavement leave
This change would give mothers and their partners the right to two weeks of bereavement leave if they have suffered a miscarriage before 24 weeks. This would enhance the current law on
parental bereavement leave, which applies where an employee has suffered the death of a child or a stillbirth after 24 weeks.
What hasn’t been covered?
The right to switch off
Despite discussions, the changes to the Bill do not include provisions granting employees the right to “switch off” from work communications outside of working hours. This suggests that, at least for the time being, employers are not legally required to implement policies allowing employees to disengage from work-related communications during their personal time.
Unfair dismissal
One of the most notable changes brought about by the Employment Rights Bill is the abolition of the requirement for an employee to have two years’ service in order to bring a claim for unfair dismissal.
We know that this right will be subject to an “initial period of employment”, during which a more diluted procedure for dismissal can be followed. The Government has previously suggested that this “initial period” would be nine months. However, this hasn’t been confirmed in the amendments and will be subject to consultation before being fixed.
Guaranteed hours
The reference period for calculating average hours for workers and agency workers has still not been defined, although a period of 12 weeks has been suggested previously.
What does this mean for employers
Although there have been amendments to the original Bill, many businesses will be disappointed to note that that the Government has made very few concessions in favour of employers. Rather, it appears to be pressing on with its proposals and the majority of the key elements of the Bill remain unchanged. Particularly, the provision to make unfair dismissal a day one right.
Next steps
Employers will have a clearer view of the way the land lies when the Bill is passed and the supporting consultation documents and regulations are published. In the meantime, we will continue to monitor the Bill as it progresses through Parliament.
Implementation for much of the new law is expected in 2026 and so employers are starting to plan for its impact. If you would like further advice on any of these upcoming changes, please contact Stevi Hoyle or a member of the Glaisyers Employment team.
