The Employment Rights Bill (ERB) is like the lumpy custard we used to have at my primary school; nothing at all would come out of the jug and then suddenly - whoosh - great big dollops in my bowl that I didn't want and couldn't cope with! And so it is with the ERB. We heard nothing for several weeks, and then all of a sudden, we had four consultation response papers published all at once and details of amendments were announced with little warning.  

Key headlines

• The Government intends to extend the measures to outlaw exploitative zero-hour contracts (the right to a guaranteed hours offer, etc.) for agency workers.
• Employees on less than the lower earnings limit (currently £123 per week) will be entitled to SSP at 80% of their earnings.
• The protective award for failure to consult where 20+ redundancies are made will double from a max of 90 days to 180 days.
• Further measures amending the current recognition process for unions will also be added to the Bill.  
• These changes will be added as amendments to the Bill in its final stages in the House of Commons next week.

Agency workers 

The Government is concerned that employers will bypass the new burdensome requirement to make a guaranteed hour offer (for those on zero-hours contracts and low guaranteed hour contracts) by using agency workers. To close that loophole, its amendment will extend the right to a guaranteed hours offer to agency workers, provided they meet the necessary criteria for zero-hour/low guaranteed hours employees (still to be confirmed by Government). Given the three-party relationship between employee, agency and hirer, this creates something of a practical nightmare in terms of spreading the responsibilities.  

Here's what we know:

• the hirer will be responsible for making a guaranteed hour offer should that obligation be triggered; 
• both parties will be responsible for providing reasonable notice of shift changes and regulations will set out what is reasonable; but
• the responsibility to recompense the employee for cancelled or curtailed shifts will lie with the agency, but there will be room for some recoupment of costs from the hirer.  

It's certainly not the clearest arrangement and could be more administratively burdensome than the guaranteed hour offer regime itself. As some sort of comfort, the consultation response did acknowledge the concerns of employers as to whether they would be able to offer temporary contracts where there was a genuine need and/or seasonal contracts. The Government has promised further consultation on that and regulations to specify the definition of temporary need.  

Practical steps

• Ensure that you are aware of the extent of your reliance (if at all) on agency workers - will the complexities of this change outweigh the benefit of agency workers? 
• Does your contract with the agency have provisions regarding the recoupment of costs for cancelled shifts? It's worth noting as the ERB may affect this.
• Continue to monitor reliance on zero hour workers/low guaranteed hour workers and whether it's worth moving towards more permanent arrangements where possible.
• Take comfort in the fact that there are still consultations and draft regulations to be completed and so it's unlikely any change is going to happen quickly.

Statutory sick pay 

We already know that the three-day waiting period for SSP will be removed. The Government has now confirmed, following their consultation, that the ERB will be amended so that employees who are paid less than the lower earnings limit (currently £123 per week) will be entitled to 80% of their normal weekly earnings should they be sick and absent from work. There will not be, however, any further extension of the right to SSP; calls for extending it to self-employed individuals and workers were rejected. 

Practical steps

• The removal of the three-day waiting period will have an impact on costs and it's key to address this in budgetary discussions - unfortunately, at the moment, as with most of the ERB, we don't have a time frame for this change.
• Assess the extent of employees within your organisation who are paid less than the LEL - are there enough for this change to have an impact? If so, this should be taken into budgetary considerations.  

Collective consultation 

The Government has made it clear that they intend to ensure that where redundancies are planned, employers follow the necessary collective consultation process and give the opportunity, they hope, for jobs to be saved. To do this, they are tabling an amendment so that the protected award for failing to comply with their obligations (when making 20 more employees redundant) is doubled. The cap will be 180 days. This, it is hoped, will act as a deterrent to ‘unscrupulous employers’ in a way that the previous 90 day cap has not. The Government also promises an updated code of practice on dismissal and re-engagement and further guidance for employers on the consultation process. It's worth remembering here that the ERB already includes a provision whereby the one establishment provision will be removed so that all redundancies across an organisation are taken into account when calculating the number of redundancies for collective consultation.  

Practical steps

• If workforce changes are needed and redundancies likely, it may be wise to start the process sooner rather than later, following the current code of practice and legislation, to avoid more draconian measures once the ERB is in force.  
• Be mindful in collective redundancy situations where the statutory code on dismissal and re-engagement (published July 2024) applies because, as of January 2025, tribunals have the power to uplift compensation for an employer's failure to comply with that code.  

Trade union changes 

In the introduction to the proposed changes, the Government note their aim to update the legislative framework to align it with modern day working practices and remove unnecessary restrictions on trade union activities. 

The proposed amendments will: 

• change the process and transparency around trade union recognition; 
• streamline the recognition process; 
• strengthen protections against unfair practices; 
• extend access provisions to cover digital access; 
• abolish the ten-year requirement for unions to ballot their members on the maintenance of the political fund; 
• simplify current information requirements on industrial action ballots; and 
• extend the expiry of the mandate for industrial action from six to twelve months.   

Practical steps

• At 55 pages, this consultation response is the longest of the four and we cannot give it justice in this short blog. If union recognition is a matter of interest to you and your organisation, we would recommend to diarise a visit to the industrial action and ballot section of our ERB hub, as this will be updated to reflect the wording of the amendment the Government is adding to the ERB and note the link to the consultation response on the key documents section.
• Contact me for further specific advice. This area is complex and requires case-specific guidance.  

What happens next?

These amendments will be presented to Parliament next week when the ERB enters its final stages in the House of Commons. Given the Government's majority, we expect all these amendments to be accepted as part of the Bill and so to go through for the next stage of debate in the House of Lords.  

In terms of timings, we still have no road map ahead, although the Government has made it clear it does not want to rush through any changes. We are still awaiting more consultations and draft secondary legislation, as the ERB itself remains, despite its 200+ pages, a document with scant detail.    

For any further information or specific advice, please contact me and visit our ERB Hub as we are updating it with necessary documentation and amendment information.