What changes should HR prepare for from the Employment Rights Bill

In this podcast

The Labour Government published its highly anticipated Employment Rights Bill on 10 October 2024. In this edition of the podcast, Brightmine employment law experts Zeba Sayed and Stephen Simpson analyse the key proposals in the Bill and offer advice on how HR can begin to prepare for the changes.

Introduction

Robert Shore: Hello, and welcome to the Brightmine podcast, formerly known as the XpertHR podcast. This is an unusual edition of the podcast, in that we are going to revisit the audio track of a webinar that we recorded on 24 October 2024. This was about the Employment Rights Bill published by the Government on 10 October 2024, and in this my colleagues at Brightmine, Stephen Simpson and Zeba Sayed, run through the various proposals there and also some of the things that weren’t in the bill that may have been flagged up beforehand. And the point at which we’re going to pick up the webinar is with Stephen outlining the timeline for the various strands within it.

Employment Rights Bill timeline

Stephen Simpson: By way of reassurance to anyone who’s concerned about all these proposals coming out in one go, we’d like to start with a look at potential timelines for the changes that we’re going to be talking about today. The first thing to stress is that nothing in the bill is yet law, and the bill will take a significant amount of time to go through Parliament, with most of the changes needing secondary legislation. So that’s supporting regulations or orders that will flesh out the details. I would actually be surprised if the bill took any less than six months to make it to Royal Assent, which is when it’s finalised in Parliament, and it could actually be nine to 12 months, and even then it will need much secondary legislation.

It’s a long time ago now, of course, and they’re not an exact match, but the last time a Labour Government put through an employment-related bill of this size was the Equality Act way back in 2009/2010. I had a look back, and that took one whole year from its introduction into Parliament until Royal Assent. Then there are the public consultations that are needed on many of the details, and in fact we’ll come back to them later, but the first four consultations that will run until December opened a few days ago on 21 October. So that’s why the Government has specifically said that most of the reforms won’t take effect until 2026 at the earliest.

And realising that reforms to unfair dismissal are causing among the biggest concern for employers, the Government does say that the unfair dismissal changes, which Robert has already mentioned actually, won’t take effect until at least autumn 2026. So whatever we throw at you in the next hour, remember there’s still plenty of time to get to grips with the changes.

Removal of the two-year service requirement and the statutory probation period

Zeba Sayed: So, I’m going to jump straight on today with the removal of the two-year service requirement for a protection from unfair dismissal. This one in particular has had a huge amount of press coverage, and in our last poll it was also an area that our listeners seemed to be really concerned about. The detail around this new right can be found in Schedule 2 of the bill, and the bill essentially removes the two-year qualifying period for claiming ordinary unfair dismissal. So what this means in practice is that employees will have the right not to be unfairly dismissed from the first day that they start their employment. When I stay ‘start their employment’, that’s really important because it doesn’t cover somebody who has been offered a job but not yet started work.

Alongside the removal of the two-year qualifying period, the bill also introduces a new statutory probation period. Technically speaking, the bill actually refers to this as the ‘initial period of employment’ but it’s referred to as the ‘statutory probationary period’ in Next Steps. Just to be clear, probationary periods are not currently defined in law.

So what the bill does is introduce a new statutory probationary period and then goes on to explain that any dismissal during this period will be subject to a modified dismissal procedure. And by all accounts, this modified dismissal procedure looks set to be far more relaxed.

Now, this modified procedure, according to the bill, can only be used if the termination date falls within the initial statutory probationary period or within three months after that date if notice of termination was given within the initial period, and the reason for dismissal relates to conduct, capability, illegality or some other substantial reason. Which essentially means that the modified dismissal procedure can’t be used in a redundancy situation. So if you wanted to make somebody redundant in a statutory probationary period, you would have to follow the usual process, which would include the requirement to warn and consult, go through a fair selection process, and consider alternatives to redundancy.

Now, some commentators are asserting that this new statutory probationary period and more relaxed procedure for dismissing is essentially bringing a new service requirement in through the back door. I think for this one, we are going to have to wait for the detail because there is still a great deal that we don’t know. For instance, we don’t know what length the statutory probationary period will be. Having said that, in the Next Steps policy paper the Government says that its preference is for a nine-month probationary period, but we’ll have to wait to see what the regulations say.

We don’t know the full scope of the lighter-touch or modified dismissal procedure. Again, in Next Steps the Government suggests that a lighter-touch process could be as simple as the employer holding a meeting with the employee to explain their concerns, at which the employee could be accompanied by a trade union representative or a colleague. So overall, not that onerous.

Then there’s the matter of how this all ties in with the ACAS code of practice on disciplinary and grievance procedures. So the code is obviously going to need to be amended if these proposals are taken forward.

And then moving onto short-term contracts, we don’t know the precise detail around this. But the bill does say that regulations may be made to treat two or more periods of continuous employment as one.

What we do know from Next Steps – so the Government’s Next Steps policy paper – is that the Government will be consulting on the length of the initial statutory probationary period, how this all interacts with the ACAS code of practice, and what the compensation regime for successful claims during the probationary period will be.

And as already mentioned by Robert and Stephen, any change in this area will not happen earlier than autumn 2026. So really, there’s not a great amount of pressure to do anything right now because we are still two years away from any change. However, the proposal is significant and it does have several practical implications. It will require a shift in gear with regards to how managers manage how they induct and how they train new recruits, and also how they deal with employees who are not performing in their probationary period.

So what can you do now to make the most of the breathing space that you have? Firstly, you could undertake an audit of your recruitment processes. These reforms are likely to result in more grievances, more tribunal claims, and in turn more costs. So perhaps start thinking about how you can exercise more caution in your recruitment process to select the most suitable candidate for your organisation.

And then if we turn to the probationary period, managers will really need to be more intentional about them. So think about the current structure of those probationary periods. Are managers proactive in reviewing performance or addressing any other concerns that arise during that period? If not, you could start thinking about implementing more robust measures to do so.

And in line with this, think about the current onboarding process. Is this thorough enough? Do employees understand their role and what’s expected of them? Do you need to invest more in training and development to help employees reach their full potential?

And it’s also worth having a look at your current probationary period clauses. In future these will need to be more robust and be more prescriptive. Difficult to do this now, as we don’t have enough detail. But these are things that employers can start thinking about now.

And finally, look out for any consultation and also further regulations, which should provide the clarity that is needed in this area.

Fire and rehire changes

Stephen Simpson: So, next we have the significant change in dismissal on reengagement laws, often referred to as ‘fire and rehire’. That’s the practice of an employer dismissing employees and offering to reengage them on new terms.

The previous Conservative Government did introduce a statutory code of practice on dismissal and re-engagement which took effect on 18 July this year. However, the current Government clearly sees that code as inadequate. Currently, where the code is relevant, an employment tribunal may amend an employee’s compensation by up to 25% if the code is breached.

So the fire and rehire provisions in the Employment Rights Bill go much, much further, making it automatically unfair to dismiss someone if the principal reason is that they refuse to agree to a variation of contract or if the employer’s principal aim is to recruit someone else under new terms to do the same job or to rehire the same employee on new terms.

There is a narrow exception where the employer will be able to engage in the practice of fire and rehire if it can show that the business is in current financial difficulties or imminently will be in financial difficulties. Even then, the employer needs to act fairly, in particular when it comes to consultation.

I mentioned earlier that four Government consultations have been launched, one of which does relate to fire and rehire. So to potentially add to the disincentive for employers to use fire and rehire, the Government is consulting on the possibility of allowing claimants to seek what’s called ‘interim relief’ in unfair dismissals related to fire and rehire. So that essentially means that the tribunal could require an employer to continue to pay a claimant whom the tribunal has deemed is likely to win their unfair dismissal claim based on fire and rehire, pending the case being heard. So that consultation opened on 21 October and closes on 2 December.

In terms of practical implications, employers that have used fire and rehire in the past really need to rethink their position on its use, given the major disincentives that the bill brings. Some variation of contract policies or redundancy policies may make reference to this use as a last-resort alternative to redundancy. Also I’d say check clauses in contracts of employment too for any clauses that allow your organisation to make unilateral changes to contracts which avoids the need for fire and rehire in the first place.

Just a word of warning there. Although employers that rely on that type of clause still need to make sure that they aren’t breaching the implied term of trust and confidence if they do invoke that type of clause.

Redundancy consultation reforms

Zeba Sayed: So, moving onto the redundancy consultation reforms, the detail on this can be found in Clause 23 of the bill, and the bill proposes to expand the requirement to collectively consult. So at the moment, the duty to collectively consult arises when an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a 90-day period. And one establishment in this context means the specific site or the workplace where the employee carries out their duties.

Now, the bill proposes to remove the words ‘one establishment’ from the act, which in practical terms means that collective consultation will be triggered where 20 or more redundancies are proposed across the whole business. What we don’t know is if the Government intends to provide any other guidance on this. I think it probably will, but we will have to wait and see.

On a separate note, on 21 October the Government launched a consultation on the protective award. So this is compensation which is awarded by a tribunal to an employee when an employer fails to collectively consult with them. There is currently a 90-day cap on the protective award. So the Government are consulting on two options, a) increasing the award from 90 days to 180 days, or 2) removing the cap entirely. Now, this consultation closes on 2 December.

In terms of the practical implications, collective consultation is likely to be triggered in more situations where businesses have multiple sites and note, this could relate to redundancies which are completely unrelated. So if you do have multiple sites, you can start planning ahead now by assessing your current practices. Look at whether your internal communications between different sites need to be strengthened, and also audit the way that you review the triggers for collective consultation. And finally, stay informed about the current consultation and obviously other updates in this space.

Trade unions

Robert Shore: So, proposed here are two things. First, the right for trade unions to have access to workplaces in a regulated and responsible manner, on appropriate notice, to meet, represent, recruit or organise workers, and to facilitate collective bargaining. The situation at the moment is that trade unions do not have a general right to access workplaces for recruitment and organisation of members. They can only come onto premises of an organisation in particular circumstances, in the case the employer gives its agreement, so it’s part of a collective agreement where the union is already recognised, or if access is ordered by the Central Arbitration Committee ahead of a statutory recognition ballot.

So the bill would transform current arrangements and give trade union officials a wider access, right to access workplaces for recruitment, organising and collective bargaining purposes, though not to organise industrial action, subject to following a prescriptive statutory process.

And second is a requirement for employers to give workers a written statement that they have the right to join a trade union at the same time as they’re provided with a written statement of their general terms and conditions. So at the moment, employers must give workers a written statement of employment particulars when they begin work. Among other things, this must include whether there is a collective agreement which affects their terms and conditions of employment. But the bill would expand the list of required particulars that the employers would give to employees, to include this explicit statement.

What remains unclear at this stage? Well, in regard to the wider right to access workplaces for recruitment, organising and collective bargaining purposes, this must happen according to a prescriptive statutory process, and we don’t really know what this process looks like yet. Once the bill is passed, the Government will be required to publish secondary legislation setting out in detail the process for requesting access, the grounds on which the Central Arbitration Committee can refuse access requests, and any default arrangements the committee may impose.

There’s also the question of digital rights of access. The bill says that access in this case will mean only physical entry to the employer’s premises. That’s the extent of the access being proposed in the bill. So is that the end of the question of digital access?

As for the statement about the right to join a union, the specific form such a statement needs to take, and when and how employers will be required to provide it also remain currently undefined, and will be set out in future secondary legislation.

So, practical implications. The Government is clearly committed to a package of wide-ranging reforms to trade union and collective employment rights. So next steps for HR might depend in the first place on how much engagement employers have had with trade unions in the past. Certainly employers need to formulate industrial relations strategies, and non-unionised businesses might in the first place consider rolling out training for managers and HR teams to help them deal with unions and manage challenging or simply unfamiliar situations. So upskilling is probably a good idea in this area.

Increased protections for pregnant employees and those returning from family leave

Stephen Simpson: And next we have the outline within the bill for increased protection against dismissal for pregnant employees and those who are on or returning from family leave.

Employees who have informed their employer that they are pregnant, as well as those who are on or have recently returned from maternity leave or adoption leave or certain periods of shared parental leave, currently have the right to be offered any suitable vacancy in a redundancy situation. The scope of protection is being extended to other types of dismissal. However, all the bill really does in its current form is to give the Government the powers to make regulations about dismissal other than by reason of redundancy during pregnancy and after various other types of family leave. It should be noted that the power already exists in existing legislation for the Government to make regulations about dismissal other than by reason of redundancy during a period of the various types of family leave.

So, we don’t currently have a lot to go on with this particular proposal, although we expect that employers will have to review and potentially update any procedures that could end up with dismissal. So it’s definitely a case of wait and see with this one.

Robert Shore: This one, that is statutory paternity leave and ordinary paternity leave to be day-one employment rights, looks nice and straightforward. Currently, of course, there are qualifying periods before employees become eligible for these kinds of leave. With paternity leave at the moment a key eligibility requirement is that the employee must have at least 26 weeks’ continuous employment at the end of the 15th week before the expected week of childbirth. Likewise, an employee can take only ordinary parental leave after they’ve accrued at least one year’s continuous service with the employer. So that’s by the time they take the leave.

The Employment Rights Bill then is proposing to remove the qualifying periods for both paternity leave and ordinary parental leave, making them day-one rights. It is also designed to remove the restriction on employees taking paternity leave after they have taken shared parental leave, as currently employees lose any entitlement to paternity leave and pay if they take shared parental leave and pay before exhausting their paternity leave entitlements. The bill then proposes that they’ll now be able to take paternity leave and pay even after they have taken shared parental leave and pay.

So what don’t we know? We don’t know when it’ll pass into law. There is another broader question. These changes do look quite straightforward, even though we don’t know when they might become law. But something more wide-ranging is also promised. The Government has said that the current parental leave system does not support working parents, of course. And these measures are really the only ones in the bill that begin to address that issue. But the Government has confirmed that it plans to conduct a review of the parental leave system as a whole, not to mention the benefits of introducing paid carer’s leave.

So, the introduction of these day-one rights are likely to be just the beginning of a wider shift in thinking and practice.

So what can be done immediately? Well, immediately is perhaps not quite the right word. HR departments in the future will obviously just review their paternity and parental leave policies.

Statutory sick pay

Stephen Simpson: Next we have two key changes to statutory sick pay. The first change relates to the eligibility requirement to receive SSP. An individual’s average weekly earnings must be at least the lower earnings limit, currently £123, for the eight weeks before they went off sick. So that eligibility requirement is being removed.

The second change relates to the three-day waiting period for statutory sick pay. Currently SSP is not paid for the first three waiting days in a period of incapacity for work. So the bill removes that three-day waiting period.

So, the removal of the lower earnings limit means that provision needs to be made for how much SSP someone earning below the flat rate of SSP should get. For example, clearly someone who earns £75 per week, say, should not be able to receive £116.75 per week in SSP, which is the current flat rate. So individuals earning below the flat rate will receive a percentage of their average earnings.

What that percentage will be is one of the unknowns with this proposal. A few days ago, on 21 October, the Government launched a consultation to consider this issue. The consultation provides illustrative examples broadly setting out the cost for employers and potential impact on low earners if the percentage is set at 60%, if it’s set at 70% or if it’s set at 80%, and that consultation remains open until 4 December.

In practical terms, the Government estimates that this change will make at least 1 million more people eligible for SSP. The proposal will require changes to employers’ sickness absence policies and procedures, although employers that would like to get ahead of the legislation could begin thinking now about whether it’s a good time to introduce an enhanced sick pay scheme.

Overall, while these changes are essentially procedural in their nature, it remains to be seen what impact they will actually have. For example, in our Employment Rights Bill pulse survey, a few respondents raised concerns that these changes will make it easier for employees to take sick pay, potentially increasing sickness absence rates. So it’s going to be fascinating to see if those fears come to pass.

Zero-hours contracts changes

Zeba Sayed: So, I am going to move on and talk about the proposal around zero-hours contracts, which has created a great deal of buzz in the media. The detail is in some very long and convoluted provisions that cover the first 24 pages of the bill. It’s pretty hefty stuff.

So firstly, just to be clear, zero-hours contracts are not being banned despite the hype. So the first bit of the bill talks about guaranteed hours. And essentially, it proposes that an employer must offer zero-hours workers and low-hours workers guaranteed hours at the end of every reference period. The offer must reflect the number of hours worked by the worker during the reference period. The offer can take the form of a variation to existing terms or it can be a new contract, but it can’t be a fixed-term contract unless it’s reasonable. A worker has the option to accept or reject an offer of guaranteed hours.

And then the bill contains some really complex provisions around when an offer is deemed to be withdrawn. Moving on, a worker can make a complaint to the tribunal on specific grounds, but any compensation that’s awarded to a worker will be subject to a maximum amount. The bill also places a duty on a worker to mitigate their loss.

Now if that’s not enough, there are separate rights in the bill for zero-hours workers and workers that don’t have a fixed working pattern, and this includes the right to reasonable notice of a shift, as well as the right to reasonable notice of a change or cancellation to a shift, and the right to be paid for a shift that’s been cancelled, moved or cut short.

Now, despite the 24 pages of provisions, there is a lot that we don’t know, and a substantial amount that will be developed through regulations.

So, we don’t know what constitutes a low-hours worker. This is yet to be defined. We don’t know how the reference period works. So when we talk about the reference period, that’s the timeframe that an employer will need to look at to assess the actual hours that the worker regularly works to then calculate the offer of guaranteed hours. In Next Steps, the Government suggests that this could be a 12-week period but we’ll have to wait to see what the regulations say.

Moving on, the bill talks about an initial reference period, and then it talks about a subsequent reference period but it doesn’t specify how and when the reference period resets. And what’s more, the bill doesn’t explain how an employer should calculate the number of guaranteed hours and the precise conditions around the number of hours that need to be worked and how regular these need to be for the right to be triggered.

Additionally, the bill doesn’t explain what constitutes a valid offer of guaranteed hours. Should it match the same number of hours or the same working pattern by the worker during the reference period?

And I mentioned a few minutes ago that a fixed-term contract can’t be offered as part of a guaranteed hours offer unless it’s reasonable but the bill doesn’t define ‘reasonable’ in this context. Nor actually does it define what constitutes ‘reasonable notice’ of a shift or the maximum amount of compensation that could be awarded in these types of cases. So there’s a huge amount there that’s unresolved.

And finally, you should be aware that all these rights could be extended to agency workers. So the consultation relating to the application of these particular measures to agency workers opened on 21 October and it closes on 2 December. So if your organisation has strong views on this, now is really the time to get involved and make your voice heard.

In summary, all we really have at the moment is a framework. So in terms of practical implications, we know that these reforms are likely to result in higher admin costs, higher payroll costs, as you may have to offer guaranteed hours in cases where there’s no business need for it. There’ll be less flexibility for employers. It’s likely to be more difficult for employers to adjust the workforce up and down to meet seasonal demands.

But to get a head start you could start identifying individuals who may be entitled to stronger rights to begin that process of assessing the impact of the change, and whether this zero-hours contract model remains viable for you as an organisation.

Then of course, communicate with staff. There’s lot of media frenzy, and actually Government frenzy, surrounding the banning of zerohours contracts, which is a bit misleading. So some workers may inadvertently believe that they’re entitled to rights that have not yet been implemented.

So to mitigate any of those misconceptions I’d say keep your workers well informed about the progress of the law. And to finish off, just keep up to date. The Government have promised consultations on how the review periods will work and what constitutes low-hours work. So look out for those. And as I said before, engage in the consultation if you have an opinion about it.

New statutory right to bereavement

Robert Shore: A new statutory right to bereavement leave is proposed. Currently employees have a statutory right to bereavement leave only in the form of parental bereavement leave. This covers parents whose child dies before the age of 18 or who suffer a stillbirth after 24 weeks of pregnancy. It entitles them to two weeks’ parental bereavement leave.

There is also, of course, the right to unpaid reasonable time off for family and dependants in an emergency. Of course, some employers already provide bereavement or compassionate leave that goes beyond the statutory entitlement.

But what is the proposed change then? The bill will introduce a new statutory right to bereavement leave, allowing employees to take leave from work to grieve the loss of loved ones. In other words, the statutory entitlement to bereavement leave will no longer be limited to parents who lose a child, and this will be a day-one right.

What don’t we know? Well, quite a lot. Bereavement leave is going to be extended beyond the death of a child, but the necessary relationship with the deceased to qualify for the leave is undefined. It’s quite likely to mirror that used in time off for dependants. This is in the Employment Rights Act, where employees are entitled to take a reasonable amount of time off for dependants, meaning spouse, civil partner, child, parent or person who lives in the same household, but we will have to wait and see.

Regulations are also required to confirm the length of the leave and the period in which it will need to be taken. What can be done now? Well, it depends a little on what your organisation already offers by way of compassionate leave policy. One thing to begin considering is how the new bereavement leave might interact with your current compassionate leave arrangements.

Expansion of pay gap reporting reqiurements

Stephen Simpson: Next, we have changes to the gender pay gap reporting regime. Currently, employers with 250 or more employees have an annual obligation to publish their gender pay gap figures. What they don’t currently have to do is to publish any supporting narrative alongside their gender pay gap figures. However, we know that some employers do choose to set out any actions that they are taking to address their gender pay gap.

An important change for large employers, i.e., those with 250+ employees, that is being introduced via the bill is that employers will be required to set out action plans showing how they firstly are addressing the gender pay gap, and secondly how they are supporting employees going through the menopause.

One additional change that the Government has snuck in is a requirement to report on providers of contract workers in their gender pay gap report. However, it’s worth stressing that those workers’ pay data does not have to be provided; just the names of the providers.

With this proposal, really there’s still a lot to be fleshed out. For example, we don’t know yet how prescriptive any forthcoming secondary legislation will be about what the actions have to include, plus the form and manner in which the action plans have to be presented is also unclear. We are expecting it to be essentially an add-on to the employer’s annual gender pay gap report, but that is to be confirmed.

So in terms of practical implications, this change will increase the administrative burden on employers that are already required to report on their gender pay gap. Other employers may already be taking these steps, so for some it may be a case of bringing together what they already do into an action plan. Employers could think now about including an action plan in their gender pay gap report from April 2025. There’s no reason why they can’t experiment in 2025, even though I don’t think this reporting requirement is likely to kick in until April 2027 at the earliest, with, say, a potential first relevant snapshot date in April 2026.

It’s a similar story with menopause support. Start thinking now about what menopause support your organisation already provides, or if it’s not an area you currently provide support on, think now about introducing menopause support.

Increased protections against sexual harassment

Zeba Sayed: So, moving on. The bill proposes a number of amendments to strengthen the laws on harassment, and these are set out in Clauses 15-18 of the bill. By way of background, from 26 October – so in two days’ time – there will be a requirement on employers to take reasonable steps to prevent sexual harassment of their workers in the course of their employment.

So the bill proposes to extend this duty so that employers must take all reasonable steps, not just reasonable steps, to prevent sexual harassment from occurring in the workplace.

The bill also includes additional provisions around third-party harassment. In summary, it says an employer must not permit a third party – so, for example, a customer or a client – to harass an employee. It goes on to say that an employer will be liable for thirdparty harassment of an employee if it occurs during employment and the employer failed to take all reasonable steps to prevent it.

Now, this isn’t just limited to sexual harassment but it extends to harassment on other grounds, such as age, disability, race, religion, sex etc. So that’s a significant shift.

Moving on, the bill gives the Government the power to introduce new regulations outlining what amounts to reasonable steps to prevent harassment. These steps may include things like conducting assessments, publishing plans or policies, steps relating to the reporting of harassment, and the handling of complaints.

And finally, the bill also proposes amendments to the whistleblowing provisions so that anyone reporting sexual harassment will be afforded whistleblowing protection.

In terms of what we don’t know, well the bill doesn’t provide any detail around what constitutes all reasonable steps. It doesn’t explain how thorough an employer must be to fulfil this obligation or the practical difference between the duty to take reasonable steps against the duty to take all reasonable steps. So we may have to wait for all of this to be fleshed out in case law.

Additionally, the bill doesn’t provide any guidance around what specific actions an employer should take to prevent third-party harassment and what measures are likely to be deemed reasonable. We do hope to see all of this in regulations, but of course until they’re published it’s unclear how detailed they will be or what exactly they will require. I imagine that they will echo to some degree what’s already in the EHRC’s technical guidance around harassment, but we will have to essentially wait for the fine print.

And in terms of consultation, there’s no mention of this specifically relating to these proposals, but I think that there will be some form of consultation going forward.

Moving onto the practical implications, the duty to take all reasonable steps appears on the face of it to be more stringent and of a higher standard than the current obligation, but it is really difficult to say with certainty whether the addition of the word ‘all’ will make any difference in practice.

Employers who have implemented reasonable steps to comply with the preventative duty that comes into force in two days’ time should in theory be well prepared when the duty is expanded. So for now, I would say continue to follow the non-statutory guidance issued by the EHRC.

Moving on, the proposal around third-party harassment is really quite significant because it gives an employee the right to pursue a standalone claim for third-party harassment against an employer. Now, employees don’t currently have that right, so employers will need to ensure that they are more proactive in assessing, managing and preventing the risk of harassment from third parties, and they should really start looking at this in their risk assessments now.

And finally, with regards to the amendments to the whistleblowing provisions, I think this is unlikely to change a great deal practically, as employees who report complaints of sexual harassment are already protected. But going forward, I think employers should be doing all that they can to commit to creating a safer workforce. And then look out for the regulations and any consultation in this area.

Changes to the right to request flexible working

Stephen Simpson: And last but definitely not least, we have some very important changes to the right to request flexible working. Employers are currently able to turn down requests if their reason falls within the wide list of acceptable business reasons. The changes in the bill are aimed at shifting the emphasis so that, while those wide business reasons will remain in place, employers will have the additional burden of having to show that any refusal is reasonable.

In addition, there will be a specific requirement for the employer to write to the employee if they refuse a flexible working request, setting out the reason or reasons for refusing the request and explaining why they consider the decision to be reasonable.

So this one inevitably means that we need an updated ACAS code of practice on handling flexible working requests. One thing that I think will be fundamental for employers is they’re given a clear steer around what counts as reasonable when refusing requests.

In practical terms, the Government is clearly seeking to instill in employers a positive approach to flexible working, and a change of emphasis to make flexible working the default where possible. I’m afraid it does mean that employers will have to look at their approach to flexible working again, having had to do so for changes under the previous Government last April.

Of course, employers could get ahead by reviewing their approach now to ensure that they are already taking a positive stance where possible.

Just a quick trailer for Brightmine’s forthcoming flexible working survey, where we have surveyed around 400 employers to get a sense of the state of play when it comes to flexible working in the UK. So we’re due to publish the results of that survey in November, so look out for that.

Other proposed measures

Zeba Sayed: So, this has been a whistlestop tour of 12 proposals that we think will affect most organisations listening today, and ones that have been in the headlines. But there are other measures that Labour proposes to take in the bill that we haven’t covered today.

So for example, further reforms to trade union legislation and the establishment of a Fair Work Agency.

In addition, there are longer-term commitments that the Government is planning, which they set out in Next Steps. So for example, a new Equality (Race and Disability) Bill, a full review of the parental leave system which Robert mentioned earlier, consultation on a single worker status, and full reviews on things like paid carer’s leave. That’s just a few examples. But once you’ve gone through it, I think you will see that it’s a pretty bold undertaking and it will require a huge amount of work from the Government to see these commitments through, and a huge amount of work from employers to ensure compliance.

Robert Shore: Right. We’ll leave the webinar at this point. We’re about to take questions but we’ve already published a separate podcast in which we take questions on the Employment Rights Bill. It’s the most recent one in this series. You might want to listen to that if you haven’t already.

Of course, we have lots of supporting materials on the Employment Rights Bill on the Brightmine website, and I’ve put links to some of those in the show notes. And beyond that, of course you’ll want to continue to follow what we do on the website as the Employment Rights Bill makes its progress through Parliament. There’s quite a story to unfold there. Until next time.

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