This blog was co-authored with Luke Bowery and Kate Redshaw

The new government promised an Employment Rights Bill within its first 100 days and so it has come to pass. Today the Employment Rights Bill has landed, with the government describing the reforms it contains as ‘the biggest upgrade to workers’ rights in a generation’. 

Publication of the Bill is the first major milestone on the road to making those reforms a reality. But don’t hold your breath – the legislative path is not a speedy one and before the reforms become law there will need to be public consultations on various of the proposals. Secondary legislation will also be needed to provide the underlying detail for a number of the changes. The government has indicated that the majority of reforms will take effect no earlier than 2026, with the unfair dismissal changes not expected until autumn 2026 at the earliest. That said, given the breadth of change, employers will want to start taking stock of the possible implications sooner rather than later. 

Alongside the Bill (which is over 150 pages long!), the government has published a ‘Next Steps to Make Work Pay’ document outlining the next steps in delivering the Plan to Make Work Pay which also includes information about future reforms that it intends to make outside of the Bill. The Bill and the Next Steps document can be found here: Employment Rights Bill and Next Steps to Make Work Pay.

Hot off the press, we pick out some of the headline points from the Bill as referenced in Next Steps: 

So, what made it into the Bill?

• Day one rights - several key employment law rights (including the right not to be unfairly dismissed and rights to sick pay and unpaid parental leave) will become ‘day one’ rights.
• A statutory probationary period – the government will consult on a new statutory probationary period to enable employers to assess the suitability of new hires with a ‘lighter-touch’ dismissal process for employers to follow to dismiss an employee, during that probationary period, who is ‘not right for the job’. The length of the probationary period will be the subject of consultation, but the government favours 9 months. The government also intends to consult on what a compensation regime for successful claims during a probation period might be, with consideration given to tribunals not being able to award the full compensatory damages currently available for unfair dismissal claims.
• Sick pay changes - entitlement to statutory sick pay will start on the first day of absence, rather than the fourth day. SSP will also be available to those who earn below the Lower Earnings Limit. 
• Maternity and pregnancy protections - protections for pregnant employees and new mothers will be strengthened with the government promising to make it unlawful to dismiss such employees within 6 months of their return to work, except for in specific circumstances.
• Paternity rights expanded – fathers and eligible partners will be entitled to statutory paternity leave from the start of employment, rather than having to wait until they have 26 weeks’ service. 
• Flexible working the default - a flexible working request may only be refused where it is ‘reasonable’ for the employer to refuse the application for one of the existing eight prescribed reasons. With the government’s stated aim being to ‘ensure more requests are agreed’ this will likely make it more difficult for employers to turn down requests than is currently the case. 
• Ending ‘exploitative’ zero hours contracts – workers on zero hours and, importantly, also those on ‘low hours’ contracts will have the right to move to a contract reflecting the hours that they regularly work, based on a 12-week reference period. Workers will have the option to remain on their existing contract if they prefer. There will be consultation as to what constitutes ‘low’ hours. Subsequent reference review periods will also be built in if additional hours become regular over time. Again, consultation has been promised as to how those periods will work. 
• Bereavement leave – a new right to bereavement leave will be introduced. 
• Removal of certain strike restrictions - repeal of minimum service levels legislation (introduced last year by the previous government) and industrial action ballot turnout requirements & extended minimum notice periods that were brought in under the Trade Union Act 2016. 
• New industrial relations reforms – in addition to repealing the above restrictions, the government has set out wide-ranging industrial relations plans including plans to simplify the statutory recognition process, introduce new rights of workplace access for trade union officials and new obligations for employers to inform workers of their right to join a union. 
• Ending fire and rehire -the Bill includes important new provisions addressing the practice of dismissing and re-engaging employees (often referred to as ‘fire and rehire’) and seeking to significantly restrict the circumstances in which such a dismissal would be fair. 
• Sexual harassment prevention – the Bill extends the new duty on employers to take reasonable steps to prevent sexual harassment of their workers to cover ‘all’ reasonable steps. It also introduces a new Equality Act claim enabling workers to bring a claim against their employer where they are harassed by a third party and the employer failed to take all reasonable steps to prevent the third-party harassment.  
• Gender pay and menopause action plans – large employers (those with 250 or more employees) will be required to create actions plans on how to address their gender pay gaps and how they will support employees through the menopause. 
• Redundancy consultation – whether collective consultation is required in a redundancy situation will be determined by reference to the number of people affected across the business as a whole rather than the number of people affected at each establishment as is currently the case. 
• A new enforcement body – the Fair Work Agency will be established to enforce certain employment law rights (including holiday pay and statutory sick pay). It will be created by bringing together several existing enforcement bodies. 
• Public sector contracts – the two-tier code for public sector contracts will be reintroduced and strengthened, with the aim of ensuring that outsourced workers are offered terms and conditions that are no less favourable to those transferred from the public sector. 

 And what’s been left out?

• No single status of worker (yet) - rather than put forward changes at this stage, the government intends to consult on its proposal to create a single status of worker which would see ‘employees’ reclassified as ‘workers’ and all workers awarded the full suite of employment rights. 
• No right to switch off - the Bill does not contain a ‘right to switch off’ which would have enabled employees to disconnect from work and limit any contact from their employer outside of working hours. The Next Steps document confirms this will be addressed through a Statutory Code of Practice and promises consultation with business and trade unions before introduction.
• No equality reforms (yet) - equality reforms (such as expanded equal pay protections and pay gap reporting obligations) are expected to be included in a draft Equality (Race and Disability) Bill that will be published separately later this autumn. 
• Changes to NMW bands - the age bands which restrict National Living Wage entitlement to those aged 21 and above are expected to be removed to ensure all adult workers are eligible for the NLW. The government says it will address this through non-legislative changes. Importantly, it has already asked the Low Pay Commission to take account of the cost of living when it recommends the rate of NLW for next year and has asked the Commission to recommend a National Minimum Wage rate for 18 to 20 year-olds that narrows the gap to the main NLW rate. 

One thing is for sure – it’s going to be a busy time for employers. People teams will play a key role in helping their organisations navigate this period of change. 

If you would like to discuss how these changes might impact your business, please contact do get in touch.