Last week, Lee & Thompson employment partners James Baker, Danielle Lobel-Weiss and senior associate Martin Tynan, together with their team, delivered a seminar on the Employment Rights Bill to clients working in in-house HR, People or Legal roles with HR responsibilities.
They discussed the fundamental changes businesses across the creative sectors and beyond should be prepared for ahead of the legislation coming into force, including day-one unfair dismissal protection, new rights to guaranteed hours for workers on zero-hours contracts, huge limitations on the use of “fire and rehire” and expanding employer liability for harassment of employees perpetrated by a third party. Read our key takeaways below.
Key takeaways for employers
Unfair Dismissal and Initial Period of Employment: All employees will have unfair dismissal protection from the first day of employment. However, there will also be a new statutory “initial period of employment” for the first 3 to 9 months (exact time TBC) of employment where “light touch” dismissal processes will apply, save for redundancy cases.
Fire and Rehire: The ability to use dismissal and re-engagement when varying terms and conditions, aka “fire and rehire” will be significantly limited. Dismissal will be automatically unfair where the reason for the dismissal is an employee’s refusal to accept a “restricted variation” to their employment terms, unless the employer can justify the variation (e.g. mitigation of financial difficulties, and the need to make the change was unavoidable).
Collective Redundancies: The trigger for requiring collective consultation will be required where over 20 redundancies are proposed at one establishment or where a “new threshold test” is met.
Employment Tribunal Updates: The time limit to bring a claim in the employment tribunal will be doubled, from 3 to 6 months. The protective award for failure to consult in a collective redundancy situation will double, from 90 to 180 days.
Family Friendly Rights: Paternity leave and parental leave will be a day-one right. A new day-one right to unpaid leave for bereaved employees of at least 1 week, to be taken within 56 weeks of the death will be introduced. It is anticipated that a wider class of relationships will be covered and will likely include pregnancy loss before 24 weeks (including abortion and failed IVF transplantations). One provision not in the Bill but was introduced earlier this year: Neonatal care is a day-one right whereby anyone with the main responsibility of caring for the baby can qualify for a maximum of 12 weeks leave and pay (the latter being the lower of either £187.18 or 90% of their average weekly earnings).
Harassment: Employers currently have a duty to take “reasonable steps” to prevent sexual harassment – that will become a duty to take “all reasonable steps”. Employers will also be liable where employees suffer harassment from third parties in the course of their employment, unless the employer can show it took “all reasonable steps” to prevent it (N.B. this will apply to all types of harassment, not just sexual harassment). Disclosures that “sexual harassment has occurred, is occurring or is likely to occur” will be a specific qualifying disclosure under whistleblowing legislation.
Fair Work Agency: The formation of a new government agency, The Fair Work Agency (FWA), will combine existing enforcement functions. The FWA will have a broad range of powers including the ability to bring tribunal claims on behalf of employees, enforcing a failure to comply with obligations to keep adequate records of holiday pay and enforcing a failure to pay statutory payments to workers. All employers will be required to keep adequate records demonstrating compliance with holiday entitlement for 6 years. Statutory sick pay (SSP) will be payable from the first day of sickness and there will be no earnings threshold. Employees on zero-hour contracts will have the right to be offered guaranteed hours if they work regular hours over a defined period. Additional rights will also include the right to reasonable notice of a shift and compensation for shift changes and cancellations at short notice.
Timeline of Changes
Nothing will happen until April 2026. However, the key dates to note (which are subject to change) are:
Look out for our future updates and find out more about our expertise in employment law here.