Employment Law Digest February 2025 – Case Law update
“Off the record” discussions In Gallagher v McKinnon’s Auto and Tyres Ltd: The claimant was employed as a…
Introducing the Employment Rights Bill, the most substantial set of employment law changes in a generation.
You can also view our Employment Law Update, delivered by Jamie Gamble, Paul Scope and Heather Ramsey, here.
1.1. With the intention of giving greater job security to workers in the early months of their employment, the requirement to have 2 years’ continuous service before being eligible to bring an unfair dismissal claim will be abolished.
1.2. Instead, subject to an “initial period” (probationary period), an employee will have a right to bring a claim for unfair dismissal from day one.
1.3. The initial period is likely to be between 3 – 9 months but we are waiting for further Regulations before this is certain. There is no information yet as to how the initial period is going to work in practice but the intention is to make it easier for an employer to dismiss someone during this period if it is not working out.
1.4. This change is not going to be made until August 2026 at the earliest. We would recommend that you start to train managers on how to manage a probationary period effectively, so that it is second nature by the time the changes come in.
2.1. Although Labour’s manifesto talked about the right to work flexibly being a day one right, that has not translated into the Employment Rights Bill.
2.2. It still remains a day one right to request flexible working. What will change is the inclusion of reasonableness into the decision of employers to refuse a flexible working request. An employer will have to explain the grounds for any refusal and why that refusal is reasonable.
2.3. Draft regulations are expected with the right not coming into force until the middle of 2025 at the earliest.
3.1. A new duty on employers to take reasonable steps to prevent sexual harassment at work has already come into force from 26 October 2024. Employers who fail to take reasonable steps could be subject to a 25% uplift of the compensation award in a Tribunal.
3.2. The Employment Rights Bill extends this duty and requires employers to take all reasonable steps. Regulations will be published to specify what those steps might be – for example, publishing sexual harassment policies, training of staff to recognise and report sexual harassment, and risk assessments to help minimise any risk of sexual harassment.
3.3. The Employment Rights Bill will make employers liable for third party harassment of employees during the course of their employment and where the employers has failed to take all reasonable steps to prevent sexual harassment.
3.4. There is also the suggestion that this duty will be extended to other protected characteristics.
3.5. There is no date yet for when the Regulations are going to be published.
3.6. Employers should, if they haven’t already, take steps to ensure that they are compliant with the current duty to prevent sexual harassment.
3.7. To make life easier, we have a Prevention of Sexual Harassment toolkit which will give you everything you need to help you comply with the current legislation. Please click on this link to register for more information.
4.1. Disclosure of sexual harassment is already covered by the existing protection of disclosures showing breach of a legal obligation under whistleblowing legislation, and disclosures of this nature arguably already amount to a protected act under S.27 of the Equality Act 2010. However, the Employment Rights Bill explicitly includes that a disclosure that sexual harassment has occurred or is likely to occur is likely to qualify for protection under whistleblowing legislation.
5.1 This Act received Royal Assent on 18 September 2023 and gave workers the right to apply for a change to their terms and conditions of employment with the purpose of obtaining a more predictable working pattern. Note that this was not the right to a more predictable working pattern itself; just the right to request one. The government expressed concerns that this was not robust enough and did not give workers sufficient security in their employment.
5.2. This Act has already been scrapped as part of the Bill. Instead, the government will introduce the right for workers to have a contract which is reflective of their actual working pattern which reflects the government’s intention to give employees more certainty about their hours and times of employment.
6.1. The government’s manifesto promised to end “exploitative” zero hours contracts, but the Employment Rights Bill (“the Bill”) doesn’t go quite this far. There is no definition of what “exploitative” might be however the scope for an employer to offer a contract with no defined hours is more or less removed.
6.2. The measures in the Bill are complex and detailed and cover the right to guaranteed hours, the right to reasonable notice of shifts and shift changes.
6.3. We’ve summarised the key points in tabs 7 & 8 below. All are subject to further clarification and confirmation through Regulations.
7.1. This right will apply to workers who either:
7.1.1. Work under a zero hours contract or “arrangement” or
7.1.2. Work under a contract for a low number of minimum guaranteed hours but work more than those hours in the reference period (see below).
7.2. This will require an employer to offer a minimum hours contract, which will be based on the previous working patterns of the employee, known as the “reference period”. Employers will have to offer workers guaranteed hours, and the hours must reflect the pattern of days and times of working hours within the reference period. The reference period itself will be set by secondary legislation but may be as little as 12 weeks.
7.3. To qualify, a worker does not need to have been employed without a break through the reference period and can have more than one contract during the reference period.
7.4. If the worker accepts the guaranteed hours contract then it appears that the guaranteed hours will commence the next day. The worker has a ‘response period’ in which to reply to agree or otherwise, but this is not determined as yet.
7.5. Agency workers are often employed on zero hours contracts and at present the Bill does not apply to them.
7.6. Whilst employers will be required to offer the minimum hours contract, and to give workers information on their rights, workers will have a right to refuse and will have the opportunity to remain on zero hours if they prefer. It appears however that the employer will have to periodically re-offer the right, apparently at the end of each reference period. This obligation will be ongoing for so long as the worker remains on a qualifying contract.
7.7. There will be exceptions, for instance for a short-term need but in this case the employer would have to prove that the contract was “a proportionate means of achieving a legitimate aim”.
7.8. Employers are not able to use the opportunity to change any other terms of the contract, the Bill explicitly prevents this.
7.9. The government intends to consult on the measures, which will include its application to agency workers, and is to set out further details in regulations. Timescales are uncertain, and there are a good number of questions still outstanding, such as the definition of “low hours”, what the response times are, the exceptions to the rule and what the compensation would be at tribunal.
7.10. If all employees qualifying for a guaranteed minimum hours contract accept the offer, the employer could find themselves overstaffed at periods of low demand.
7.11. Failure to comply with the new requirements could result in the employee making a claim to the Employment Tribunal.
7.12. For our HR Protect clients, we recommend you contact your usual adviser for guidance on managing contracts where there are fluctuating work levels.
8.1. An employer will have to provide reasonable notice of shifts, including the time, day and number of hours to be worked.
8.1.2. Further to this, employers will have to pay workers if they cancel, move or curtail a shift with insufficient notice. What counts as ‘reasonable’, and ‘short notice’, will be consulted on ahead of being included in secondary legislation.
9.1. Currently an employer must have a written policy to demonstrate how tips are allocated to staff.
9.2. The Employment Rights Bill will bring in a requirement to consult with staff about the policy and then publish the results of that consultation. These provisions complement the provisions of the Tips Act 2023 which came into effect in October 2024, requiring employers to distribute tips fairly and transparently across the workforce.
9.3. There will be a requirement to review the policies and consult with staff every 3 years.
10.1.1. Bereavement leave at present is limited to parents of a deceased child, who are entitled to take two weeks of paid leave.
10.1.2. The Employment Rights Bill removes the requirement that only parents are eligible for bereavement leave. At present it is left rather vague as to what the relationship with the deceased person should be for an individual to qualify for this bereavement leave. Further regulations are to due be published in due course to help clarify this issue.
10.1.3. Furthermore, the Employment Rights Bill will also ensure that from day one, all employees will be eligible for bereavement leave and there is no minimum qualifying period.
10.2.1. Under current legislation, an employee must have been in their current place of employment for a minimum of one year before they may take any unpaid parental leave. Once eligible, an employee then is entitled to 18 weeks of unpaid leave in total. Whilst this cannot be taken all at once, with parental leave capped at 4 weeks per year, parents are free to utilise their allowance of leave at any time right up until their child’s 18th birthday.
10.2.2. The Employment Rights Bill will remove the qualifying period for parental leave. Parental leave will therefore be a right available to all from day one. The Employment Rights Bill will not amend either the length or cap of how this can be taken.
10.3.1. The law currently provides protection from dismissal by reason of redundancy for a period of six months following a return to work after maternity leave.
10.3.2. The Employment Rights Bill proposes to ban all forms of dismissal during pregnancy, maternity leave or during a six month period after returning from maternity leave apart from in specific circumstances. Details will be published in the regulations which are expected no earlier than mid 2025
10.3.3. It is also proposed that regulations will be introduced to cover other forms of statutory family leave such as adoption leave and shared parental leave.
10.4.1. The Employment Rights Bill will also strengthen the rights of new fathers. Under existing legislation, there is a minimum qualifying period before an employee is entitled to two weeks of paid paternity leave. An individual therefore must have been with their current employer for at least twenty-six weeks before they are permitted to take any paternity leave.
10.4.2. The Employment Rights Bill however abolishes the twenty-six week minimum period. Therefore, as will soon be the case with parental leave, employees will have a statutory right to paternity leave from the beginning of their employment.
10.5. We recommend that you review your policies. Whilst no timeframes have been confirmed yet, it will be important to stay ahead of the curve to ensure that you are prepared for when this legislation comes into force.
10.6. For our HR Protect clients, we will do the hard work for you. Just ask your usual adviser and they will provide you with an up to date policy.
11.1. The Employment Rights Bill abolishes the practice of “fire and rehire”. It will become an automatically unfair reason to dismiss an employee if the reason is:
11.1.1. the employer sought to vary the employee’s contract of employment and the employee did not agree to the variation; or
11.1.2. the employer dismisses the employee in order to employ someone else or to re-engage the employee under a varied contract of employment on substantially the same duties as before.
11.2. There will be exceptions, including where:
11.2.1. the proposed contractual variation removes or significantly reduces any financial difficulties of the employer; or
11.2.2. the employer could not reasonably have avoided the need to make the variation.
11.3. It is going to be extremely difficult for employers to force through any changes to terms and conditions where the employees will not agree to them. It is only going to be possible in extreme circumstances where the employer is at risk of collapse. It is unclear when these changes will come into force but it is unlikely to be before 2026.
11.4. As part of a wider consultation process which closed on 2 December 2024, the government requested views on permitting interim relief and lifting the cap on the protective award in fire and rehire cases.
12.1. Statutory sick pay will be payable from day one of sickness, rather than on and from day four as at present.
12.2. The Employment Rights Bill proposes amendments to the rate paid by an employer to remove the lower earnings limit, making statutory sick pay available to all workers. Instead there will be a prescribed percentage of the employee’s weekly earnings, or a minimum of £116.75, whichever is the lower. The prescribed percentage will be set by the Secretary of State following consultation.
13.1. The time limit to bring a claim to a tribunal will be extended from three to six months. This is a significant change and was announced as part of a series of amendments to the Employment Rights Bill on 26 November 2024.
14.1. The Government has announced that it will introduce a new requirement for employers with 250 or more employees to develop and publish an ‘action plan’ showing steps that they are taking in relation to their employees with regard to gender equality. This will include addressing the gender pay gap and supporting employees going through the menopause. This is likely to be an annual requirement for those employers.
14.2. In addition, matters related to menstrual problems will be included in the definition of “matters related to gender equality” and may require employers to produce an equality action plan.
14.3. The Government has also announced plans to develop menopause guidance for employers, although no further information is available as yet.
15.1. The collective redundancy consultation requirements are currently triggered when an employer is proposing more than 20 redundancies at one establishment within a 90 day period. If the affected employees were spread across a number of sites, it was only the number of employees at each individual site which would trigger the requirement to collectively consult.
15.2. The Employment Rights Bill proposes that the obligation to collectively consult will kick in when there are 20 or more proposed redundancies across a whole business, regardless of the number of employees affected at individual establishments. The consultation obligations on employers making redundancies across their business will therefore become much more onerous.
15.3. Consultation has taken place on increasing the maximum protective award and allowing employees to claim interim relief. The Government has also said that it will consult during 2025 on changing the minimum consultation period when an employer is proposing to dismiss as redundant 100 or more employees. The suggestion is changing the minimum period from 45 to 90 days. A significant increase.
16.1. Under the heading ‘Public Sector Outsourcing’ the Bill promises further rights for public sector workers who have been transferred under TUPE into the private sector.
16.2. The measures are intended to prevent the growing problem of a “two-tier workforce” where private and ex-public sector employees are on different terms and conditions. Regulations will be introduced with the suggestion that there may be a requirement to include provisions within outsourcing contracts that those transferring from the public sector into the private sector will be treated no less favourably.
17.1. Currently employers with over 250 employees must publish annual gender pay gap reports.
17.2. The Employment Rights Bill proposes that this requirement will be expanded to extend to name any providers or employers of contract workers. It is unlikely to be implemented before mid 2025.
17.3. At the present time, proposals to extend similar provisions to ethnicity pay gap reporting and disability pay gap reporting have not been included.
18.1. The Bill repeals legislation that the Labour government considers to be anti-Union and ineffective, including the majority of the Trade Union Act 2016 and the Minimum Service Levels (Strikes) Act 2023.
The Bill will strengthen the rights of union representatives in the workplace, for instance in increasing the allowance for paid facility time to undertake union related activities and for the employer to ensure that the representative has access to the necessary facilities.
The laws making ‘blacklisting’ illegal will be updated and protect a wider range of workers.
The law protecting workers from suffering detriment for taking industrial action will be strengthened. In addition, there will now be protection for employees from unfair dismissal when taking industrial action, regardless of the length of the strike.
There will be greater rights for unions to access workplaces for recruitment, organisation and collective bargaining purposes, although the details of this will be contained in secondary legislation following consultation.
Employers will have to provide their workers with information on their right to join a trade union both at the start of their employment and at intervals thereafter. The conditions for trade union recognition in the Trade Union and Labour Relations (Consolidation) Act 1992 will be amended to remove the 10 percent test and replace with a “required percentage test”, presumably of less than 10 percent, making it easier for workers to vote for a right to trade union recognition at their workplace. There will also be an ‘opt out’ rather than an ‘opt in’ to payment for membership of the union.
The government was lobbied hard by the unions to repeal this law, which had allowed certain employers to issue a “work notice” requiring certain workers to work on strike days. The Bill therefore repeals this legislation, which appears in any event to have been rarely used.
20.1. The new Fair Work Agency will be able to enforce rights as well as providing advice to employers on compliance with the law. According to the government, the current system relies largely on individuals taking personal responsibility for enforcing their rights, resulting in the failure of employers to be challenged on breaches.
20.2. The Fair Work Agency will be responsible for co-ordinating the enforcement of a wide range of employment rights, providing a central unified authority as a point of contact. It will also be given powers to challenge businesses that breach the law, and enforcement powers such as the issue of civil penalties and the ordering of employers to compensate their workers.
21.1. The Employment Rights Bill will also improve the rights of school support staff. As is the case with carers in the adult social care sector, currently there is no national body that represents school support staff. Therefore, they lack a dedicated voice and institutions to advance and raise relevant issues.
21.2. The Employment Rights Bill will reinstate the School Staff Negotiating Body, which was abolished in 2010. As support staff make up nearly half of the school workforce, the creation of this institution establishes greater representation to those working in the sector. In particular, it will enable them to more easily raise issues such as pay, terms and conditions and training.
21.3. Again, a lot of the detail will be subject to consultation and the power to create the necessary secondary legislation will be delegated to the Secretary of State.
22.1. The Employment Rights Bill will strengthen the rights of care workers who are employed in the adult social care sector. At present, no body exists to represent those working in this sector, which in tandem with low rates of unionisation has meant their bargaining power has always been weak.
22.2. The Employment Rights Bill however will establish the process to create an Adult Social Care Negotiating Body (ASCNB). It is intended that this body will serve to represent the interests of care workers and act as a mechanism to improve their pay and conditions. As this sector is currently beset with high staff turnover and low domestic recruitment, the changes proposed under the Employment Rights Bill will likely be welcomed by those within it.
22.3. One important point to note however is that the Employment Rights Bill will not automatically create the ASCNB. Instead it will only set out the process and the ASCNB will be established at a later date through secondary legislation.
23.1. Labour met their commitment to introduce legislation within the first 100 days. The Employment Rights Bill has now completed the House of Commons Committee stage. 200 amendments have been made and approved. There are still several stages for the Bill to pass through before it becomes law.
23.2. The Regulatory Policy Committee’s initial assessment of the Bill was that there are significant concerns on the rationale behind the measures, the identification of the options and the justification of the preferred way forward.
23.3. There has already been an amendment paper, totalling a sizeable 53 pages.
23.4. A significant number of the proposals are still subject to consultation and dependent on substantial changes to secondary legislation, with much of the detail to be worked out and implemented by the Secretary of State.
23.5. The intention is for the majority of the reforms to take effect in 2026, although some parts of the Bill will come into force in 2025, which will give businesses time to prepare.
23.6. We will be keeping track of updates as the Employment Rights Bill progresses through the various parliamentary stages and will keep you up to date on how the changes impact on you and your business and what you can do to get your business ready.
If you have any questions, please do not hesitate to contact us.
24.1.1. The proposals to make the minimum wage the same for all adults have not made it into the Bill.
24.1.2. There was no tightening of the ban on unpaid internships.
24.2.1. Introduced in April 2024, the one week statutory entitlement to carers leave has not been made a paid entitlement.
24.3.1. There was no inclusion of support to terminally ill employees by encouraging employers and trade unions to sign up to the Dying to Work Charter.
24.4.1. The proposed alteration to H&S guidance relating to extreme temperatures has not yet been addressed.
24.5.1. There is nothing as yet to provide a Youth Guarantee for training, work or apprenticeship opportunities for 18 to 21 year olds.
24.5.2. There are no proposed changes to the apprenticeship levy.
24.6.1. The Employment Rights Bill does not include the introduction of one status of worker. The government have stated that longer term their aim is to remove the distinction between employees and workers.
24.6.2. There is no right to a written contract for self-employed workers.
24.7.1. The Employment Rights Bill does not include the proposed collective grievance process.
24.7.2. There is no repeal of current regulation allowing agency workers to cover striking workers.
24.8.1. A new code of practice on the right to switch off, preventing 24/7 working from home, remains a proposed future reform.
24.9.1. The manifesto had included better and stronger regulation of Artificial Intelligence, which has not been included in the Employment Rights Bill.
24.9.2. Also not included is a requirement for consultation with workers prior to introducing surveillance technologies.
Introducing the Employment Rights Bill, the most substantial set of employment law changes in a generation.
You can also view our Employment Law Update, delivered by Jamie Gamble, Paul Scope and Heather Ramsey, here.
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