Employment Rights Bill – individual rights

On 10 October 2024, the Government presented the Employment Rights Bill to Parliament, containing some of the most significant reforms in a decade. The Government will consult on the reforms and most of them are expected to take effect no earlier than 2026.

This is a summary of some of the key issues relating to individual employment rights in the Bill (there will be a second article about trade union rights and other matters under the Bill).

Day One right to claim Unfair Dismissal

The Bill will remove the two year qualifying period for ordinary unfair dismissal claims; this will allow employees to bring unfair dismissal claims from the first day of their employment.

However, it is anticipated that employers will be allowed to operate a probationary period during which there will be a lighter touch process for employers to follow, to dismiss an employee who is “not right for the job”.

The Government will consult about the length of the statutory probationary period but currently, its preference is that it lasts for 9 months.

This is likely to have a significant effect on the way employment relationships are handled by employers, as well as leading to an increase in Employment Tribunal claims.

Note that there are already some specific exceptions to the two year qualifying period for unfair dismissal eg if an employee is dismissed because s/he has made a protected disclosure (whistleblowing).

Paternity leave and unpaid Parental leave

The entitlement to paternity and parental leave will be available from the first day of employment. Employees will also be able to take Paternity leave and pay following Shared Parental leave and pay which is currently not allowed.

Bereavement leave

This leave will be a new right but we do not yet know details of the relationship which the employee will be required to have had with the deceased. Currently, bereavement leave (and pay) only applies to parents who have lost a child under 18 years old or had a stillbirth after 24 weeks of pregnancy.

Dismissal during or after family leave

There will be additional protections against dismissal of employees during or after a protected period of pregnancy and on return from other forms of statutory family leave. This will go beyond the enhanced protection introduced in April 2024 which only related to redundancies.

Statutory Sick Pay

This will be payable from the first day of sickness (currently there is a three day waiting period and payment starts on day four). In addition, the Lower Earnings Limited will be removed, making all employees eligible for Statutory Sick Pay. The Bill allows for a lower earner to be paid less than the statutory rate.

Flexible working

The right to request flexible working will be strengthened.

Under the proposed changes, employers will only be able to rely on one (or more) of the statutory grounds to refuse a request for flexible working, where it is reasonable to do so.

Where the employee’s request is refused, the employer will be required to explain in writing to the employee, the ground(s) for refusal and why it is reasonable to refuse the application on those ground(s).

Zero hours contracts

There will not be an outright ban on zero hours contracts but there will be a right for workers on zero hours or low hours contracts to:

• a guaranteed hours contract which reflects the worker’s normal hours, based on a reference period
• reasonable notice of a shift, if the worker is on a zero hours contract or works under a contract where the shift patterns are not known in advance and
• reasonable notice of changes to a shift or working time and proportionate compensation for shifts cancelled or curtailed at short notice.

Sexual harassment

Under a law which took effect on 26 October 2024, there is a duty on employers to take reasonable steps to prevent sexual harassment, in the course of workers’ employment.

However, under the Employment Rights Bill, the new duty will be extended further to require employers to take all reasonable steps, making the duty more onerous on employers.

Third party harassment

An employer will be liable if a third party (such as a customer) harasses a worker in the course of his/her employment and the employer had failed to take all reasonable steps to prevent that harassment.

This provision will apply to harassment on the grounds of any relevant protected characteristic (not just sexual harassment) including age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.

Fire and re-hire or Fire and replace

The provisions in the Bill place tight restrictions on when an employer can fire and rehire the same employee or fire one employee and replace him/her with another employee.

Dismissals will be automatically unfair where the reason (or main reason) for the dismissal is:

• that the employee did not agree to his/her employer’s requested variation of contract of employment or
• to enable the employer to employ another person or re-engage the employee under a varied contract of employment, to carry out substantially the same duties as the employee carried out, before his/her dismissal.

There will be a limited exception where the reason for the variation, is to address financial difficulties affecting the employer’s business.

Next steps

The Bill will need to progress through Parliament and there are likely to be changes to it during this process. Both employers and employees should look out for updates on the proposals over the next few years.

If you would like to discuss any employment matter, please contact Julia Woodhouse on 01926 831231 or [email protected]  

Julia is an Employment Solicitor based in Leamington Spa and advises clients across Leamington Spa, Warwick, Kenilworth, Coventry, Rugby, Nuneaton, Atherstone and further afield.

This article does not constitute legal advice.