The Employment Rights Bill (ERB) is currently making its way through the legislative process and has now reached the Committee Stage in the House of Commons.
As the Bill progresses, it continues to attract criticism, most recently in the form of critical feedback from the Regulatory Policy Committee (RPC), which we summarise below.
A substantial Amendment Paper, spanning 53 pages, has also been tabled, outlining significant changes and clarifications to the proposed legislation.
Regulatory Policy Committee (RPC) Critical of Government Impact Assessments
The Regulatory Policy Committee (RPC) has formally raised concerns about the Government’s supporting Impact Assessments (IAs) on the Employment Rights Bill. These assessments are meant to justify the Bill’s proposals, but in an official critical opinion report, the RPC has given the IAs an overall “red rating” —the lowest possible score.
The Government initially produced a summary IA alongside 23 individual IAs, covering different measures within the Bill. Of these, the RPC has assessed eight IAs as ‘not fit for purpose’, including six within the “highest impact” category.
A number of the proposals have received a red rating for failing to adequately justify the intervention, explore options or provide a preferred way forward. These include the day 1 unfair dismissal rights; repeal of Trade Union Rights Act 2016; flexible working reforms; harassment by third parties; repealing the Strikes (Minimum Service Levels) Act 2023; introduction of a Fair Pay Agreement; and guaranteed hours for zero-hours contracts.
The RPC has recommended the Government undertake broader labour market and macro-economic analysis to assess the overall impact on employment, wages and output, including potential costs passed on to employees.
The government has yet to formally respond to the RPC’s criticisms.
Key Proposed Changes from the Government
As the Employment Rights Bill moves closer to becoming law, an extensive Amendment Paper has been tabled, setting out changes to the Bill:
Extension of Tribunal Claim Time Limits
The time limit for bringing tribunal claims will be extended from 3 months to 6 months. This represents a major shift, as it was not included in the original Bill.
‘Initial Period of Employment’ for Day 1 Unfair Dismissal Rights
The initial period of employment, which will determine when unfair dismissal protections apply, will now range between 3 and 9 months, to be set out in later Regulations.
Guaranteed Hours for Zero-Hours Contracts
Minor changes have been made to provisions around guaranteed hours, though they do not simplify or fundamentally alter the current complex structure.
Payments for Shift Cancellations
Tribunals will have discretion to decide whether an award for cancelled, moved or curtailed shifts should be made and determine the payment amount based on the seriousness of the situation.
Menstrual Health and Gender Equality
Menstrual problems and disorders will be added to the definition of “matters related to gender equality.” Employers may be required to include these issues in equality action plans under separate Regulations.
Trade Union Workplace Access
Clarification that the right of trade unions to access workplaces will not extend to workplaces that are also private dwellings.
Non-Disclosure Agreements (NDAs)
A proposed clause would render NDAs void if they prevent workers from disclosing harassment, including sexual harassment.
Substitution Clauses
Another clause seeks to prohibit the use of substitution clauses in employment, worker or dependent contractor contracts.
Need assistance?
As the final provisions of the Employment Rights Bill become clearer, employers are advised to start to review HR and employment policies to ensure compliance with any new requirements.
For advice on how to prepare your organisation for the changes ahead, contact us.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
