Election Reforms

One of the most significant and perhaps most controversial of the Labour Government’s promises to reform employment law has been the removal of the 2 year qualifying period for bringing unfair dismissal claims. Protection from being unfairly dismissed is going to be a day one right.

Labour’s manifesto and the notes accompanying the King’s Speech made reference to this right being subject to the operation of a probationary period.

Now the Financial Times has reported that a number of Whitehall figures have told them that there will be a probationary period of six months during which employees can be dismissed more easily. Probationary periods should have “fair and transparent rules and processes”.  The Government have not made an official announcement as yet nor have they provided any comment.

If what the Financial Times has reported is correct, this marks a compromise between providing businesses flexibility to terminate new hires and granting more rights and certainty for workers.

A six month probationary period aligns with what we see in most current contracts of employment. The introduction of a six month probationary period in itself is therefore not unusual. What we do not know yet is how the probationary period is going to be introduced into legislation. Will it become an additional fair reason for dismissal (in addition to conduct, capability, redundancy, contradiction of a duty or restriction or some other substantial reason)? Will it become something that an Employment Tribunal will take into account when considering the fairness of a dismissal in same way that they take into account the size and administrative resources of the employer? Will there be an ACAS Code of Practice to govern how probationary periods should be applied and managed (presumably yes to this one)? We will have to wait and see.

In early October, we are expecting to know more about this right, together with the other package of employment rights announced in the Kings Speech. We will be providing more updates as and when they happen.

The Government has confirmed that the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into force on 26 October 2024. The Act, which progressed through Parliament and received Royal Assent during the Conservative Government, will introduce a duty for employers to take positive steps to prevent sexual harassment in the workplace.

The Act will require employers to take ‘reasonable steps’ to prevent sexual harassment. Such steps could include having a clear and up-to-date policy on sexual harassment, providing mandatory training for all staff, having appropriate reporting methods in place, ensuring that that there is a thorough and independent investigation into any allegations of sexual harassment, and having workplace champions to provide support to those who experience or witness sexual harassment.

In its manifesto Labour pledged to amend the duty for employers to take ‘all reasonable steps’ to stop sexual harassment before it starts, which will be more onerous for employers. The impact of this could be that if an employee brings a claim for sexual harassment, and the employer was found to have taken reasonable steps (but not all reasonable steps) the employee’s claim could be successful. This change will not take place prior to the commencement of the Act, but may be introduced in the future as part of the Government’s plans to make a suite of changes to employment law.

Employers will need to take steps ahead of the commencement date to ensure that they do not fall foul of this duty. Our Employment team will shortly be publishing a toolkit (and hosting a webinar) to assist employers with their new duty to prevent sexual harassment, so stay tuned for further updates.

The Department for Business and Trade has confirmed that the Government will not bring into force the Workers (Predictable Terms and Conditions) Act 2023. The Bill, which received Royal Assent in September 2023, was expected to come into force this month and would have provided workers with the right to request a predictable working pattern.

Instead, a spokesperson for the Department has said: “We will introduce a new right to a contract that reflects the number of hours regularly worked as part of our significant and ambitious agenda to ensure workplace rights are fit for a modern economy, empower working people and deliver economic growth.”

It seems that on this decision is in line with Labour’s plans to end one-sided flexibility and provide workers with more accurate contracts which are reflective of their actual working pattern. Instead of having various pieces of legislation, it follows that the Government would rather the issue be dealt with in one sweep and thus it will likely form part of the upcoming Employment Rights Bill. It is expected that the forthcoming legislation will confer stronger rights than the scrapped Act will have introduced.

• Labour plan to ban ‘exploitative’ zero-hours contracts.
• They will introduce a right for workers to have a contract that reflects the number of hours they regularly work, based on a 12-week reference period. They also propose giving workers a right to reasonable notice of any change in shifts or working time, meaning that compensation will be paid if a shift is cancelled which will be proportionate to the notice given.
• Labour claim it will not stop employees earning overtime and employers will still be able to  hire on fixed-term contracts including seasonal work.
• For surges during seasonal periods, for example Christmas, employers could manage staffing either by offering overtime to regular employees or hiring temps.

What are the proposed changes to employee pay?

• Labour propose making minimum wage the same for all adults, removing the 18-20 age bracket.
• There would be more improvement by considering the increased cost of living.
• Commitment to the new Tips Acts which is coming into force this October, ensuring hospitality sector worker all get an even share of gratuity. This will affect the retail, leisure and hospitality sectors predominantly.
• Ban on unpaid internships, save for where it is part of an education or training course.

Will there be any change to the new family rights?

• Bereavement Leave- this would become a statutory entitlement for all workers.
• Would look at making the new one week carer’s leave entitlement, which came into force in April 2024, a paid entitlement for employees.
• Parental leave would become a day one right.
• In line with the new extended protection against redundancy for pregnant employees and those on maternity, Labour would ban the dismissal of those returning from maternity leave for 6 months. This would be except for specific circumstances.

Are there any proposed changes to protect whistle-blowers?

• Employees who report sexual harassment will be automatically counted as whistle blowers.

• The introduction of restrictions on the practice of ‘fire and re-hire’. Such practice would only be permitted as part of a business structure.
• Unfair dismissal to be a day one right.
• Further rights for workers which have been transferred under TUPE.
• Introduction of a requirement to collectively consult were redundancies have reached a threshold across the whole business. It would no longer look at numbers within an individual workplace.

• Making flexible working a day-one right, other than in situations where there is a good reason for the employer to refuse.
• Introducing a right to switch off, or “disconnect” to ensure that working from home does not mean a home becomes a 24/7 office.

• The introduction of one status of worker. The current system is expected to be abolished, but there is no clarity as to how the differing rights would apply.
• Further security for self employed workers, with the introduction of a right to a written contract.

• For employers with over 250 employees, Labour intends to make ethnicity pay gap reporting compulsory. Labour also intend to extend this obligation to the pay reporting of employees with disabilities.
• Labour also pledge to tackle the gender pay gap by including in the reporting duties data pertaining to outsourced workers to ensure, in their words, “that outsourcing of services can no longer be used by employers to avoid paying equal pay”

• The protections against employees claiming sexual harassment are to be extended placing a duty on employers to take all reasonable steps to stop sexual harassment, including the actions of third parties and/or customers.
• Those claiming sexual harassment will receive whistle-blower protection in that in event of dismissal they will be able to apply to protect their salary through interim relief.

• The introduction of a Fair Pay Agreement in the adult social care sector.
• Providing union representatives with stronger protection in relation to threats, harassment and intimidation, as well as against dismissal
• Requirement of employers to notify employees regularly of their right to join a trade union.
• Repealing the Strikes (Minimum Service Levels) Act 2023 and the Trade Union Act 2016
• The ability for trade unions to access workplaces on appropriate notice, which also includes digital access
• The introduction of a collective grievance process, although there are no details on how this would work in practice
• Confirming the position in relation to agency workers not being able to cover striking workers, by repealing the current regulations.

• Require employers with more than 250 employees to establish Menopause Action Plans in relation to how individuals experiencing the menopause will be supported.
• The lower earnings limit will be removed in order to make statutory sick pay available to all workers, as well as removing the waiting period so that sick pay is available on day one as opposed to day four.
• Provide more support to terminally ill employers by encouraging employers and trade unions to sign up to the Dying To Work Charter.
• Modernise health and safety guidance which relates to extreme temperatures.

• Youth Guarantee providing training opportunities, work or an apprenticeship for those aged 18-21.
• Changes to the apprenticeship levy through the introduction of a “growth and skills levy”. Employers will be able to use the money to train apprentices.

• Extend the time limit within which to bring a claim to the tribunal from three to six months.
• Introducing a single state enforcement body to enforce workers’ rights to help with the backlog currently facing the tribunal system.

• Better and stronger regulation of Artificial Intelligence.
• Consultation with workers prior to the introduction of any surveillance technologies.

Is 100 days too ambitious?

Labour pledge to introduce legislation within the first 100 days of entering government, which would mean by 12 October 2024.

There is the well-established policy of only implementing employment law changes in October and April rather than spread across the year and so if Labour do keep to this precedent it will likely mean we won’t see changes until next Spring. Additionally, many changes may require codes of practice or substantial secondary legislation before being enacted and this means many more months of drafting and consultation.