Génevie Kuiper-Isaacson, Senior Associate
Génevie Kuiper-Isaacson is a tri-qualified lawyer specialising in employment law. She started her career in South Africa, where she ran her own firm, before moving to a prominent commercial firm in London. She has extensive experience advising both employees and employers in relation to a wide range of matters, including unfair dismissal, sex discrimination, pregnancy/ maternity discrimination, disability discrimination, race discrimination, TUPE, whistleblowing, grievance and disciplinary process, settlement negotiations, redundancies, enforcement and defence of restrictive covenants and corporate advisory and training.
Last week (10 October 2024), the Labour government published its much-anticipated Employment Rights Bill. As expected, the bill introduces significant reforms to the employment law landscape in England, Wales and Scotland. Or rather, it signals the government’s intention to introduce significant reforms – the draft legislation outlined in the bill is not yet law, and most of the reforms will not take effect until 2026 at the earliest. Nonetheless, many of these changes will require big adjustments for employers, and all businesses should begin familiarising themselves with the bill right away. At 158 pages, it is not an easy read, so we have identified some of the key measures employers should be aware of.
1. The right to request flexible working
Chapter 7 of the bill introduces the default right to request flexible working for both employees and workers from ‘Day One’. Employers will be able to refuse requests on specified grounds but must explain in writing why the request is being refused, and the basis on which the decision is deemed to be reasonable. This measure will both increase the number of people who can apply for flexible working while raising the bar for employers to reject requests.
Under the existing legal framework governing flexible working requests, an employer can only refuse a request on the basis of the following ‘permitted business reasons’:
- Burden of additional costs.
- Detrimental effect on ability to meet customer demand.
- Inability to reorganise work among existing staff.
- Inability to recruit additional staff.
- Detrimental impact on quality.
- Detrimental impact on performance.
- Insufficiency of work during the periods you propose to work.
- Planned structural changes.
While the above permitted reasons will not change, any employer refusing an application under section 80F of the Employment Rights Act 1996 (ERA 1996) must—
(a) state the ground or grounds for refusing the application, and
(b) explain why the employer considers that it is reasonable to refuse the application on that ground or those grounds.
This change will present a higher bar to refusing a request and should have the effect of encouraging parties to enter meaningful consultation before any decision is made. However, the proposed changes still leave broad scope for employers to refuse a request, and it remains unclear just how significant a departure the new measure will represent in practice.
2. New entitlements to leave
- Paternity and parental leave – Chapter 11 of the bill proposes to remove the qualifying periods for unpaid parental leave and statutory paternity leave. The qualifying period for parental leave is currently 26 weeks of continued service, with the right to take leave granted to either parent and/or any person legally responsible for the child’s care. Under the proposed changes, parental leave and paternity will become a day one right, a move which will be welcomed by parents and carers, and which should make juggling family life a little easier. However, parental leave will remain classified as unpaid leave unless the employer provides an enhanced pay policy. The bill also enables fathers or partners to take paternity leave after shared parental leave. Currently, a father or partner can only take paternity leave before taking shared parental leave.
- Bereavement leave – Currently section 80EA of gives employed parents the right to leave only where the employee is a “bereaved parent”. The Bill proposes that the Act be changed to provide leave for a “bereaved person”, meaning an employee is a “bereaved person” if the employee satisfies conditions specified in the regulations as to relationship with a person who has died. An employee will also be entitled to at least one week’s leave. Where the employee is eligible for the leave as the result of the death of more than one person, the employee will be entitled to take leave in respect of each person. In such cases, employees will be entitled to bereavement leave pay, which will equate to their normal weekly wages (Section 88 of the ERA 1996 – subject to proposed amendments).
3. Guaranteed hours for workers/ employees
The bill amends Part 2A of the Employment Rights Act 1996 (zero hours workers) to specify that employers must offer guaranteed hours to both zero-hours workers (i.e., employees with no guaranteed hours) and workers with low guaranteed hours who regularly work more than these hours. An employer will have to make a guaranteed hours offer to a worker after the end of every period.
While these proposals will be subject to consultation, they reflect Labour’s pledge to end “exploitive” zero-hour contracts. A study published by LSE’s Centre for Economic Performance show that zero-hours roles attract 25% more job applicants than like-for-like fixed-hours roles. The authors of this study suggested that “Policymakers should therefore be cautious about imposing strict regulations on [zero-hours contracts].” This certainly merits closer attention, and we will be watching closely how the consultations unfold in this area.
4. Right to reasonable notice of a shift
Chapter 3- 27BI amends the laws surrounding “notice of a shift”, meaning the notice employers are required to provide as to how many hours are to be worked, at what time on which day.
Employers must give reasonable notice to workers of—
(a) the cancellation of the shift,
(b) any change requested or required by the employer to the days or times at which the shift is to start or end.
Interestingly, these duties do not apply in relation to shifts covered by agency workers (however, section 27BV of the bill notes that the Secretary of State “may by regulations make provision in relation to agency workers that corresponds to or is similar to the [above] provision”).
5. Further important changes
The bill also introduces several other changes (which we have written about previously here). These include:
- Statutory sick pay from day one. Currently, the first three qualifying days of sick leave (the “qualifying period”) are not covered by Statutory Sick Pay. The bill proposes to remove this three-day waiting period.
- Harassment by third parties. This is a big change and one that is welcomed. An employer will be liable for third-party harassment of employees and applicants if, in the course of their employment by the employer, the employer failed to take all reasonable steps to prevent the third party from harassing conduct.
- Unfair dismissal qualifying period. As stated here, the qualifying period for unfair dismissal will be removed (this does not apply if the effective date of termination is before the employee has started work).
- Fire and Re-hire. It will be automatically unfair to dismiss an employee for refusing a contract variation.There will be very limited exceptions, including the genuine need to avoid serious financial issues that may threaten the business as a going concern, or where the employer could not reasonably have avoided the need to make the variation. There will also be modified criteria to consider when determining if dismissal was fair or unfair.
As noted, many of the above changes will be subject to consultation and potential modification. It is also notable that a significant number of Labour’s original proposals have been omitted from the Bill – including, crucially, the proposed shift to a two-part framework of employment status. However, the Labour government has indicated that it will look to introduce further proposals, and it may be that we see even more fresh legislation proposed in the coming months. Regardless, on the recently published Employment Rights Bill, it is clear that the employment rights landscape will change significantly. Businesses must now do their best to keep informed of these changes. It is a good idea to conduct a policy audit at least once a year to evaluate if changes need to be made to hiring policies and employee handbooks.
If you would like to know more about the Employment Rights Bill or how the proposed changes in employment law may affect you, contact Génevie Kuiper-Isaacson for an informal conversation.