The largest set of changes to employment law comes in the form of the Employment Rights Bill, relating to which several consultations were carried out. Various responses have now been published by the Government. The report stage of the bill is scheduled for 11 and 12 March.

The consultations included:

• The application of zero hours contracts measures to agency workers
• the percentage rate for those earning below the current rate of Statutory Sick Pay
• Making Work Pay: Strengthening remedies against abuse of rules on collective redundancy and fire and rehire
• creating a modern framework for industrial relations

Amendments proposed to the Employment Rights Bill as well as amendments proposed in the responses to these consultations have been collated in an Amendment Paper, published by the Government in the first week of March.

Amendments to the Employment Rights Bill include:

Application of zero hours contracts measure to agency workers

Agency workers, as well as low- and zero-hours workers, will benefit from the right to guaranteed hours, e.g. a contract reflecting hours regularly worked, offered by the end hirer. Where work genuinely is only temporary, there will be an exception to providing permanent contracts.

Agency workers will be entitled to reasonable notice of shifts, with both the employment agency as well as the end hirer responsible. In some cases, short notice may be reasonable, although there may be the right for an agency worker to receive a compensation payment, paid by the employment agency, when shifts are changed at short notice. 

NEW: introduces provision for a collective agreement (e.g. agreement between employer and trade union to contract out of the rights to reasonable notice to shifts and / or guaranteed hours) to be allowed. There will also be a new potential claim which will apply if an employer tries to manipulate or avoid their obligations.

Percentage rate for low earners for SSP

Anyone earning below the Lower Earnings Limit per week (£123, increasing to £125) is not entitled currently to Statutory Sick Pay. The proposal is to remove the LEL requirement, with SSP then calculated as a percentage of average weekly earnings, rather than a flat rate of SSP. 

This consultation response was that the percentage rate is to be “80% of normal weekly earnings”. This will apply where the flat rate is higher than 80% of an employee’s normal weekly earnings. It is intended that this will be applied immediately with no wait for employees to be paid sick pay.

Collective redundancy / fire and re-hire

• Cap on protective awards in collective redundancy situations increased from 90 days to 180 days to encourage employer compliance. 
• If redundancies of 20 or more at one establishment within 90 days are proposed, the employer is obliged to follow collective consultation procedures.
• The wording “at one establishment” was initially proposed to be removed, which would then mean employers would have had to consider redundancies across the business as a whole. 
• “At one establishment” has been retained, however, in a situation where there are more than 20 redundancies made across more than one establishment, collective consultation may still apply, to be determined as yet unpublished secondary legislation.
• Interim relief payments were proposed but are not proceeding. Employees that bring claims for protective awards and/or unfair dismissal as a result of being fired and rehired will not qualify for interim relief. This was decided on the basis of the conclusion that it was not an effective deterrent and would place undue pressures on businesses and employment tribunals.
• Further guidance will be forthcoming for employers in relation to the consultation process for collective redundancies.

Modern framework for industrial relations

In summary, the consultation:

• lowers the admissibility requirements for the statutory trade union recognition ballot process;
  • notice period for industrial action extended to 10 days
  • industrial action mandate extended to 12 months
• Will introduce secondary legislation to ensure that union members and workers can access a union at work;
• introduce greater rights and protections for trade union reps to undertake their work, strengthen protections against detriment and protect union members from intimidation, harassment, threats, and blacklisting; and
• e-balloting and workplace balloting for trade union ballots will be rolled out.

Other additions

A Fair Work Agency is proposed, bringing together various existing state enforcement functions and, over time, will take on enforcement of a wider range of employment rights. The Fair Work Agency will be able, among other powers, to:

• Bring Employment Tribunal claims on behalf of workers, even if the worker themselves does not want to bring the claim personally.
• Offer legal assistance, with costs potentially recoverable from the employer if the claim succeeds
• pursue employers for unpaid holiday pay and sick pay, with the ability to impose additional financial penalties.

What isn’t included in the Amendment Paper?

There is no mention of the “right to switch off”, despite this being a key part of the initial plans.

Please contact Jessica Jones on jones@ortolan.com for more information.