On your radar

Published: 14 November 2024 | Brightmine Editorial Team

This is your overview of employment law developments that are in the pipeline, where you can learn what’s happening, what might be happening and what isn’t happening, as well as how you can start preparing for upcoming changes. Throughout, we aim to bust myths around upcoming changes.

What’s happening

National insurance and minimum wage increases

Employers’ national insurance contributions will increase by 1.2%, to 15%, from April 2025. The threshold at which employers begin to pay national insurance on an employee’s salary will be lowered from £9,100 to £5,000.

The national living wage — the minimum legal wage for over-21s — will increase at the same time by 6.6%, to £12.21 per hour.

New sexual harassment duty for employers

From 26 October, employers of any size in England, Wales and Scotland have a specific duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment. We set out here what HR professionals should be doing to ensure that their organisation is compliant with the new duty. Brightmine (formerly XpertHR) has further supporting materials in the form of a new leading practice guide and podcast.

The Government’s new Employment Rights Bill promises further reforms to the harassment laws but these are unlikely to come into effect before 2026.

New right to neonatal care leave and pay

The Neonatal Care (Leave and Pay) Act 2023 will provide parents with a day one right to take a period of neonatal leave (and pay subject to 26 weeks’ service) if their baby needs neonatal care. The Act was passed under the previous Government and much of the detail relating to the right is still awaited in the form of secondary legislation. The previous Government indicated that the right is likely to come into force in April 2025.

Employment Rights Bill — what we know, what HR can do now

The Government published its Employment Rights Bill on 10 October. Below we look at its wide-ranging proposals, described as “the greatest shift in employment legislation in decades”.

We also look at the much-anticipated measures that are not included in the Bill.

The changes are unlikely to start coming into effect before 2026, so HR departments will have time to prepare. Brightmine will be providing updates and guidance throughout the legislative process.

The majority of the provisions in the Employment Rights Bill apply to England, Wales and Scotland. In Northern Ireland, the Government is consulting on The ‘Good Jobs’ Employment Rights Bill, which contains proposals introducing and reforming various employment rights.

Additional harassment changes

Changes to harassment law took effect on 26 October 2024. The Employment Rights Bill now proposes to go further, introducing enhanced protection against third-party harassment and requiring employers to take all reasonable steps to prevent sexual harassment of employees in the course of their employment.

For more detail, take a free trial to see our Employment law guide on harassment. Employers can start preparing now with our Leading practice guide series on building a harassment-free environment.

Unfair dismissal protection extended to all employees from day one in a job

The Employment Rights Bill proposes to remove the qualifying period for unfair dismissal, so that all employees from their first day in a job can bring an unfair dismissal claim.

In Next Steps to Make Work Pay, the Government has said that it will allow employers to operate a probationary period which will give them an initial period during which there will be a lighter-touch process for employers to follow to dismiss an employee who is not right for the job.

For more detail about the change, see our Employment law guide on Unfair dismissal.

Further reforms to flexible working

While in Next Steps to Make Work Pay the Government says that it will make flexible working the default, the actual changes in the Employment Rights Bill provide that employers can still refuse a request for flexible working on the existing grounds, but the refusal will need to be reasonable, and they will need to explain why the refusal is reasonable. Regulations are expected on what steps an employer needs to take to consult with an employee about their request.

For more detail, see our Employment law guide on the Right to request flexible working for more detail.

Fire and rehire dismissals will be automatically unfair

The Employment Rights Bill will make it automatically unfair to dismiss an employee if the principal reason for dismissal is either that the employee refused a contract variation, or to enable the employer to recruit another person or rehire the employee under new terms but with substantially the same duties (although there is a limited exception around financial difficulties).

The Government has launched a consultation around interim relief for employees who bring an unfair dismissal claim under this right.

For more detail, see our Employment law guide on Variation of contracts.

Statutory paternity leave and ordinary parental leave to become day-one employment rights

The Employment Rights Bill will remove the qualifying periods for both paternity and unpaid ordinary parental leave. It will also remove the restriction on employees taking paternity leave and pay after they have taken shared parental leave and pay.

For more detail, see our Employment law guide on Family-friendly rights.

Wider statutory right to bereavement leave

The Employment Rights Bill will extend bereavement leave beyond the death of a child to provide employees with time off to grieve the loss of loved ones. For the moment, the necessary relationship with the deceased to qualify for the leave is undefined but it is likely to mirror that used in time off for dependants.

For more detail, take a free trial to see our Employment law guide on Family-friendly rights. Find out about bereavement leave arrangements in other organisations in our Bereavement leave research 2024.

New trade union rights and reform of industrial action legislation

The Employment Rights Bill will give trade union officials a wider right to access workplaces for recruitment, organising and collective bargaining purposes, though not to organise industrial action. It will also require employers to give workers a written statement that they have the right to join a trade union.

In relation to industrial action, the Bill will repeal the minimum service level provisions and most of the changes to industrial action ballots that were introduced under the previous Government.

For more detail, see our Employment law guide on Trade unions and industrial action.

Requirement to publish gender pay gap and menopause action plan

The Employment Rights Bill proposes a requirement for employers with 250+ employees to publish action plans as part of their annual gender pay gap reports indicating: (a) how they are addressing the pay gap and (b) how they are supporting employees going through the menopause.

New entitlements for zero and low hours workers

The Employment Rights Bill proposes fresh rights for workers in the gig economy. The Bill makes provision for zero and low hours workers to be given the right to a guaranteed number of hours if they work regular hours over a defined period. It will also result in a new right to reasonable notice of a shift, and reasonable notice of cancellation of, or change to, a shift, as well as a right to payment for cancelled, moved or curtailed shifts.

There will be less flexibility for employers, as it will be more difficult for employers to adjust the workforce up/down to meet seasonal demands. To get a head start, HR leaders could start identifying individuals who may be entitled to stronger rights to begin the process of assessing the impact of the change and whether the zero-hours contract model remains viable for you as an organisation.

For more detail, see our Employment law guide on Types of contract.

Statutory sick pay (SSP) changes

The Employment Rights Bill introduces important entitlement and procedural changes to SSP. The Bill removes the requirement for earnings to be at the lower earnings limit for eight weeks prior to going off sick, and abolishes the three-day “waiting period” at the beginning of a period of incapacity.

The Government consultation on the percentage replacement rate for those earning below the current SSP rate runs until 4 December 2024.

For more detail, see our Employment law guide on Sick pay.

Redundancy consultation reforms

At the moment, the duty to collectively consult arises where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days. The Employment Rights Bill proposes to remove the words “one establishment” from current legislation, which in practical terms means that collective consultation will be triggered where 20 or more redundancies are proposed across the whole business.

For more detail, see our Employment law guide on Collective redundancy consultation.

Extra protection against dismissal for pregnant employees

The Employment Rights Bill will prohibit employers from dismissing an employee during pregnancy, while on maternity leave, and during the six months after their return to work period, except in specific circumstances. This additional protection also applies to employees during, and on return from, adoption leave and shared parental leave.

What might be happening

What was left out of the Employment Rights Bill?

Below, we explain what has happened to some of the other measures trailed by the Government that have not been included in the Employment Rights Bill.

What isn’t happening

The banning of zero hours contracts

Though much trailed in the media, this policy is not part of the Employment Rights Bill. However, the Government has set out proposals to increase the regulation of the gig economy.

The four-day, 32-hour working week

“Four-day week” is an ambiguous term that is currently being used to mean two quite different things. We understand that the Government is not planning to implement the proposals by the campaign to give workers 100% of their current pay in return for working a four-day, 32-hour week, although recent developments in relation to South Cambridgeshire District Council suggest it is not actively opposed to the policy either.

However, employees remain entitled to request to work compressed hours — that is, working their contracted number of hours but across a reduced number of days — under the current right to request flexible working and its extended form in the Employment Rights Bill.

For more information, listen to our four-day week podcast.

And finally, a media myth

Many media reports around employment rights seem fairly alarming at face value. Take the example of recent headlines suggesting that not saying hello to a colleague could break employment laws. However, as ever, context and background are key to understanding how employment tribunal decisions are reached. In this particular case, (Hanson v Interaction Recruitment Specialists Ltd) the fact that the manager was found by the tribunal to have deliberately ignored Ms Hanson, who said hello to him three times without response, was only one example of the manager’s conduct. The tribunal accepted that not saying hello might not be enough to amount to a fundamental breach of conduct, but taken with other examples of deliberately undermining behaviour by the manager, the tribunal found that Ms Hanson had been unfairly dismissed.