The Employment Rights Bill aims to enact Labour's manifesto commitment to strengthen workers' rights and improve employment protections. Discussion of the Bill in the Committee Stage of Parliament has led to the formation of an Amendment Paper, which adds new proposed changes as set out below:
Extension of Tribunal Time Limits
The time limit for bringing tribunal claims is now proposed to double from three months to six months. This marks a significant change, and occurs in the context of Labour's objective of improving access to justice for workers.
The change is likely to benefit claimants in complex cases, who may require additional time to gather evidence or seek legal advice. As employees will have longer to act, this is expected to bring a significant increase in the number of tribunal claims. It remains to be seen whether tribunals will be able to cope with the increase, given the tribunal system is already stretched. It also means that employers will have a longer period of uncertainty over whether a difficult exit or grievance process will result in a claim.
Probationary periods
The "initial period of employment" for the purposes of unfair dismissal claims will be between three and nine months, to be determined after a period of consultation. While day-one protection from unfair dismissal was a main headline of the bill, there remains a degree of uncertainty regarding how the unfair dismissal right will be implemented. Full details of the probationary procedure are yet to emerge, but will likely be underpinned by a new ACAS Code of Practice.
Simplifying Tribunal Procedures and Compensation
Tribunals will have discretion to award compensation in a manner that is just and equitable, instead of being required to adhere to a strict, quantitative, approach. Tribunals will also be required to issue declarations when an employee's complaints are upheld, in the aim of providing greater transparency and formal acknowledgment of grievances.
From an employer's perspective, this amendment may lead to difficulty in valuing potential claims, as well as assessing the cost of mounting a defence.
Shift Cancellations and Short-Notice Changes
Protections from short-notice cancellations or adjustments are strengthened for workers. Notice of a shift must include the shift's start and end time. Workers whose shifts are curtailed, moved or cancelled will also receive payment equivalent to the hours they would have worked had their shift not been altered.
This aims to provide clarity on working hours and reduce uncertainty for workers who are faced with abrupt scheduling changes, but will bring further burden to those industries that rely on variable shift work, including hospitality.
Information Rights and Worker Awareness
Employers will need to take reasonable steps to ensure that workers who might qualify for guaranteed hours are made aware of their entitlements within two weeks of their employment. This new duty on employers will continue for the duration of employment, and is introduced in the aim of improving workers' access to information.
Protection of Workers in Outsourcing Arrangements
Workers being transferred under outsourcing arrangements will not be treated any less favourably than they were before the outsourcing event. This includes a duty on contracting entities to take reasonable steps to include protections in outsourcing contracts. In addition, the amendments will implement a code of practice to provide guidance for contracting entities within outsourcing scenarios.
Guaranteed Hours and Worker Contracts
Provisions relating to Guaranteed Hours Contracts are amended to include a definition of a qualifying worker who works on multiple contracts. Employers will be required to notify qualifying workers when a guaranteed hours offer is withdrawn, and the amendments outline detailed timelines for such notifications.
The amendments aim to provide greater transparency to workers with overlapping contracts, and ensure such workers are kept informed of their employment terms.
Gender Equality and Menstrual Health
Menstrual problems and disorders are added to the list of matters that an employer must consider when producing equality action plans, enforcing a requirement to address health issues that disproportionately affect women.
Employers previously had no legal duty to explain how they will support women experiencing menopause. Under the new law, businesses with more than 250 employees will be required to publish annual equality action plans to address gender pay gaps and support menopausal women.
Advice to Employers
Each change introduced in the Amendment Paper is largely in favour of workers, and is likely to increase the administrative burden placed on employers. While further details on the new statutory probationary period are awaited, employers should take every opportunity to review and develop effective performance management procedures to prepare for the new law.
Employers are also encouraged to develop a more rigorous approach to recruitment, ensuring robust processes are in place to minimise risk from the outset, as it will prove costly to hire the wrong person for a job vacancy. Employers may be able to use the increase tribunal claim timeframe to settle disputes with employees and lower the cost of potential litigation.
As part of any equality and diversity training, employers should consider providing further training to all staff members to raise awareness of menopause and gender equality issues. Employers should also review existing grievance and disciplinary procedures, in order to ensure that problems with employees are dealt with effectively.
Conclusions
The Employment Rights Bill attempts to position itself as a progressive framework for the future of work, with the promise of greater clarity, stability and access to justice for workers. While a majority of the amendments have been made with the aim of improving the situation for workers, the Amendment Paper also provides some welcome clarification for employers. Implementation of the Bill will require careful monitoring, in order to ensure a fair balance is struck between the rights of workers and the duty on employers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
