The Employment Rights Bill

The Employment Rights Bill

Today sees the publication of the new Employment Rights Bill, soon to be The Employment Rights Act which is the most far reaching changes to employment law for a generation. The headline change is that the 2 year qualifying period for unfair dismissal will change to an employment right from day 1. However, the changes go much further than that.

The first thing to note is that the new regime will come in after a consultation period.  The law does not change today.

The new rights set out in the bill number 27 in total but the key changes proposed are as follows:

• Flexible working. This remains a right to request, not a right to do, but the employer will only be able to refuse on limited grounds. As always the devil is in the detail and employers will only be able to refuse if they can PROVE it is unreasonable to allow it.
• SSP will be applicable from day 1 of any absence, and not day 4. In reality most employers pay from day 1 anyway and so will not notice this change.
• Unpaid bereavement leave will be a right from day 1. Again we don’t think anyone will notice this.
• Unpaid parental leave will lose its one year qualifying period and become a day 1 right for all employees.
• Paternity leave will also become a day 1 right.

Zero Hours Contracts

Under the new proposals employers will need to offer guaranteed hours based on a reference period, expected to be the previous 12 week average of hours worked. The worker does not have to accept the offer, but the offer must still be made. In addition, employees will become entitled to reasonable notice of being required to work a shift and of shift changes as well as compensation if a shift is cancelled at short notice or ends early.

Some commentators have questioned whether its even worth using zero hours contracts anymore.  For some businesses, fixed term contracts or annualised hours contract may offer a workable alternative.

Day 1 unfair dismissal rights and probationary periods

This headline grabbing proposal is set to be a little more complex than first thought.

The headline is that all employees have the right to claim unfair dismissal from day 1, rather than after 2 years as is currently the case.

However, the proposal is watered down by the permitted use of an initial period of employment (essential contractual probationary periods). The maximum length of probationary period isn’t stated but reports suggest it is likely to be 6 months. It goes on to suggest that dismissal would be allowed provided that employers give notice by the last day of the probationary period, and that notice is no more than 3 months.

There will of course be much hand wringing and machinations from employer’s organisations about this change, but the reality will be, for a prepared employer who uses contracts properly, the bad employees should be capable of being identified within 6 months with a shortened notice period during the probationary period. For this author, who remembers the right to claim unfair dismissal being 1 year, and 6 months in the past, industry didn’t grind to a halt.

However, employers will need to be mindful of these changes and prepare properly, starting with a review of the standard contracts of employment used, and perhaps whether or not zero hours contracts are wise going forward.

While these changes on the whole will not be introduced immediately, there are significant changes occurring this month which are summarised HERE (Harassment protection) and HERE (new rules on treatment of tips).

If you need any help, or want to discuss measure that employers should be taking now, call the employment team at Sherbornes who will be happy to discuss your needs.