Employment Rights Bill Sent Back To The Commons Yet Again; ACAS Early Conciliation Period Extended; Digital Collective Redundancy Notification

Yesterday afternoon the House of Lords debated the Employment Rights Bill once again and, once again, five Government motions were defeated with the Lords insisting on their 28 October amendments: introducing an opt out regime for the zero hours provisions, a six month unfair dismissal qualifying period (this time referencing the Tony Blair Institute's 6 November paper supporting this), and a definition of seasonal work, and objecting to changes in union fund opt-in arrangements and the industrial action ballot threshold. (The only Government position agreed was the amendment requiring guidance to be published about the employment of children on heritage railways.) The Bill will now return to the Commons; the continuing delay in enactment decreases the chances of the Government being able to stick to its 'roadmap' for implementation.

Employers should also note two other legislative changes coming into force much sooner, on 1 December:

• Recent increases in the volume of tribunal claims have put ACAS's early conciliation service for tribunal claims under "significant pressure", with reports of conciliators only being allocated if the parties confirm they are close to a potential settlement, or only right at the end of the six week conciliation period if at all. On 3 November the Government published regulations doubling the period for early conciliation to 12 weeks, with effect from 1 December 2025, in order to ease that pressure and better facilitate resolution of disputes. The Government has stated it will review the change to the time period in October 2026. The early conciliation period pauses the time period for bringing a tribunal claim (at least until an early conciliation certificate is issued), so in addition to theoretically increasing the prospects for settlement, it also means that there could be a longer delay before employers become aware of a potential dispute. This (along with the proposed doubling of the time period to bring most tribunal claims to six months, proposed in the Employment Rights Bill) makes it all the more important for employers to ensure they create and preserve a good paper trail for decisions and, where a dispute appears likely, consider taking witness evidence earlier rather than later.
• From 1 December the HR1 form which employers are required to use to notify the Secretary of State when they are proposing collective redundancies (ie, 20 or more redundancies 'at one establishment' within a period of 90 days) can only be submitted online in digital form (here) and not via email. In addition to a few minor changes of detail, employers should note that the form must be completed and submitted in one sitting and a copy of the completed form is not automatically provided (only receipt of the form is acknowledged), so employers should manually save or print the summary page before final submission (for their records, and to comply with the requirement to give a copy to the relevant employee/union representatives). Guidance available here sets out the changes; note that although this states that the form will not accept consultation start dates in the future, there is an option to state that consultation has not yet started.

Other changes on the horizon:

• the Government is consulting until 10 December 2025 on extending the right-to-work-check regime to cover non-employee workers, self-employed contractors and online job matching platforms through the Border Security, Asylum and Immigration Bill (still progressing through Parliament). It is seeking views to inform updates to guidance and statutory codes of practice, but does not indicate the proposed timeline for this change.
• On 1 October section 17 of the Victims and Prisoners Act 2024 ("VPA") came into force, rendering void non-disclosure agreements to the extent that they prevent a victim of crime making an allegation or disclosure about criminal conduct to a specified list of persons for specified purposes, and requiring minor changes to employers' template settlement agreements as discussed in our blog post here. The Government has now published plans (via an amendment to the Victims and Court Bill) to amend the VPA so that this type of non-disclosure agreement will be unenforceable regardless of the reason for the disclosure or to whom it is made, unless the agreement is an "excepted agreement" to be defined in secondary legislation (on which consultation is expected). The concept of "excepted agreement" is also used in the Employment Rights Bill provisions concerning disclosure of harassment and discrimination allegations and it is likely that these changes are intended to dovetail and coincide with those in the ER Bill, although there is as yet no target timing for these. In the meantime, the Government has also published draft regulations to add to the list of persons to whom disclosures can be made under the existing version of s17 VPA. Those responsible for template settlement agreements will need to keep a close eye on developments.

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