Here we are again with yet more ‘fun and games’ with the Employment Rights Bill.  

We now have the House of Lords amendments published on 7 July 2025. The published list outlines all the amendments, although we are only expecting the Government's amendments to make it into the Bill (those are the ones tabled by Baroness Jones). 

 We will know for sure after the House of Lords report stages, which are now 21 and 23 July 2025.  These dates are a further indication that the Bill will not receive Royal Assent prior to the summer break.

What are the key amendments?

Confidentiality clauses regards disclosure of harassment and discrimination will be void 

This amendment has certainly received the most coverage and the Government's specific announcement on this provision can be read here. Any non-disclosure agreements to stop employees from talking about harassment and discrimination in the workplace will be void.  

The only exception to this will be an ‘excepted agreement’, but what this will look like will be included in regulations.  This ban will include confidentiality clauses in settlement agreements in respect of disclosures or allegations of discrimination or harassment. Claims under the Equality Act 2010 for discrimination and harassment can still be settled under a relevant settlement agreement; however, in any confidentiality clause within that agreement, confidentiality relating to harassment and/or discrimination will need to be excluded (as is the case with whistleblowing).  

Changes to fire and rehire provisions

The accepted premise of the Bill's provisions on fire and rehire was that it would be automatically unfair to dismiss an employee for refusing to agree to a variation of their employment contract.  What that variation was did not matter. The Government is changing this premise.  A variation will now only trigger an automatic unfair dismissal claim if the variation is a restricted variation.

Essentially, a restricted variation is one which relates to pay, hours and holiday (and any other gaps which may be added in regulations).   Any variation clause within the contract which gives the employer the contractual right to make a restricted variation will only be permitted with the employee's agreement.  

Does that mean that a variation which is not restricted carries no risk of unfair dismissal? The amended Bill expressly notes that a Tribunal would need to consider the reason for the variation, whether sufficient consultation had been carried out, etc., when considering the fairness of a dismissal following an employee's refusal to agree to varied terms. Commentators have noted that these are issues that a tribunal should already take into account, so it's tricky at this stage to see the purpose of this section.  

Having given employers some more room for manoeuvre, the Bill will introduce an additional right which was missed from the first drafting of the fire and rehire provisions.  In the first drafting, employers could still dismiss employees and replace them with agency workers (as they did in the P&O debacle several years ago) without risking automatic unfair dismissal claims.  

This amendment introduces a new right; a dismissal of an employee where the principle reason for replacing them with individuals who are not employees will be automatically unfair. This is provided that the new individual is carrying out substantially the same activities as the employee and the ‘financial difficulty’ exemption does not apply.  

This is a key provision and one which employers will need to consider. Replacing an employee with a self-employed contractor for whatever reason could be potentially automatically unfair if that contractor is carrying out the same role with similar hours. Any gains in having an off-payroll worker may be lost given the risk of such a claim.  

Finally, the Government has addressed the mismatch between the ‘financial difficulties’ exemption and public sector organisations. To recap, if an employer can demonstrate that financial difficulties have resulted in a variation of terms such that, without the variation, the organisation would no longer exist, then any subsequent dismissal is not automatically unfair.

This effectively excludes public sector bodies, as whilst they may encounter financial difficulties, they do not shut down. To address this, the Government has introduced two new tests for public sector bodies and public authorities.  For public sector bodies, the exception will apply if the employer faces financial difficulties which would affect 'the financial sustainability of carrying out the employer's statutory functions'. For local authorities, the exception will apply if financial difficulties have resulted in a “relevant intervention direction” relating to the financial management or governance of the authority.  

Guaranteed Hours Offer and Agency workers - even more complex!

We didn't think these provisions could be any more complex, but changes to agency workers and the GHO make it even more so!  First, any GHO made an agency worker must meet one of the four Conditions outlined in Schedule 1 of the Bill.  This essentially protects the agency workers' pay and conditions, so accepting a GHO does not leave them worse off.  Second, it appears that when a GHO is accepted by an agency worker, then that worker becomes a worker employed by the end user/the hirer.  Note that they become a worker and not an employee.  

Bereavement Leave for miscarriages 

The bereavement leave introduced by the ERB will be extended to parents who suffer a miscarriage before 24 weeks.  We expect this to be a period of a week and it will be unpaid leave. 

What now?

The team here at Anthony Collins is going to dive deeper into these provisions, update our hub (subscribe if you have not already here) and provide further blogs with practical advice and updated information when published.  

Importantly, these amendments do not impact the implementation roadmap (see here), so we are not expecting shock announcements of speedy commencement dates to the changes noted above.  

For any further information or advice on how these amendments will affect your organisation, please do contact any member of the team.