Employment Rights Bill – Latest Headlines

As the Employment Rights Bill progresses through Parliament, the government has put forward a set of amendments ahead of the report stage on 11 and 12 March.  Senior HR Consultant Jim Hunt picks out the headlines from these amendments below:

Currently unfair dismissal can only be claimed following 2 years service (unless the dismissal is related to a protected characteristic). The new right will be from day one. This will be subject to an “initial period” (probationary period), with the government expressing a preference for a nine month period. This really puts the impetus on organisations to have robust Probationary Policies. There will be a period of consultation before being confirmed.

The biggest change here is the inclusion of agency workers in the new right to be offered guaranteed hours if they are on a zero hours or “low hours” contract.

The impetus for this was to prevent employers from avoiding the new rule by hiring agency workers. The amendment will place this responsibility on the end hirer, on the basis that they are best placed to forecast and manage the flow of future work. Agency workers will also be included in the right to reasonable notice of shifts. This responsibility will be placed on both the employment agency and the end hirer, on the basis that either party might be responsible for giving notice. Agency workers will be entitled to compensation if shifts are changed at short notice with the responsibility for the payment sitting with the employment agency, who will be able to recoup the cost.

The Bill already proposed scrapping the four-day waiting period for SSP, so that it becomes payable from day one of sickness.  As was widely reported, a new amendment and related regulations will give those earning below the lower earnings limit a right to sick pay at 80% of average weekly earnings.  This means that all employees will be entitled to the lower of the SSP weekly flat rate or 80% of average earnings as soon as they are off sick from work.

View our guide to statutory rates of pay here

A new provision for leave after miscarriage looks likely to be introduced.  Mothers and their partners will be given the right to two weeks of bereavement leave if they have suffered a pregnancy loss before 24 weeks.  This is an extension of the current law on parental bereavement leave, which applies where a child dies or there is a stillbirth after 24 weeks.

The government has given further insight into its plans to ban dismissals of employees who are pregnant, on maternity leave or during a six month return to work period.  This amendment is currently unclear but the intention is expected to ban such dismissals except in specific circumstances.

The Bill makes the practice of fire and rehire/replace automatically unfair except in situations where the business is in extreme financial distress.  In those (narrow) situations, an employer would need to comply with the Code of Practice on dismissal and re-engagement, which the government has promised to update.

The Bill creates a new state enforcement agency, the Fair Work Agency (FWA). This brings together existing enforcement functions, including minimum wage and statutory sick pay enforcement, labour exploitation and modern slavery, and adds holiday pay enforcement.  There are a number of amendments which significantly increase its remit.  The FWA will be able to:

• Enforce failure to keep adequate records of holiday pay. The amended Bill imposes a new obligation on employers to keep records demonstrating compliance with holiday entitlement (including the amount of leave and pay). There’s no set format for these records, but they must be kept for six years and failure to comply will be a criminal offence punishable with (potentially unlimited) fines.
• Enforce failure to pay certain statutory payments to workers – including holiday pay and statutory sick pay. The FWA can issue a notice of underpayment to employers, which specifies the amount payable within 28 days. This is combined with a penalty of 200% of the sum due, payable to the Secretary of State. These provisions are based on the existing regime for minimum wage enforcement, and have major implications for employers who get holiday pay wrong across a workforce (although enforcement will depend on the FWA’s resourcing).
• Bring Employment Tribunal proceedings on behalf of a worker, if the worker has the right to bring a claim but it appears they are not going to. The FWA will also have the power to provide legal assistance for employment-related proceedings.
• Recover enforcement costs incurred by the Government from employers who are not complying with the law. The method for calculating and charging these costs will be set out in regulations.

Get support

It may be difficult to navigate through the changes in Employment legislation and these changes will invariably require you to adapt working practices so that you remain compliant  e.g. implementing or reviewing your HR admin software, such as Breathe, to ensure your records of annual leave meet the FWA requirements or making sure that your Probation Policy is robust enough for the regulations.

We can work with you to make sure that your business is ahead of the game.  Contact us to find out more about our HR advice services or request a review of your current HR documentation.

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