Employment law experts share their first thoughts about the Employment Rights Bill, which was published by the government 10 October.
“Be under no illusions, this Bill is serious business”
Luke Bowery is a partner in the UK law firm Burges Salmon
It was bold of the government to promise a bill on Employment Rights within the first 100 days it had been in power, not least because of the magnitude of its proposed changes.
Luke Bowery: “Employers will find it harder to refuse flexible working requests in the future than they do now”
Many assumed that the new set of worker rights would be implemented immediately, after all of the talk about ‘100 Days’. The new Bill is merely a first step – although a very significant one. Many details are still to be worked out, so reforms won’t take place until 2026. And important changes regarding unfair dismissal won’t be implemented until the autumn of 2026.
“The government faces a difficult task in striking a balance between delivering the ‘once-in-a-generation’ overhaul promised of workers’ rights and achieving its growth goals. After all, it is also committed to growth. Bill makes concessions to employers. While unfair dismissal becomes a right from day one, it will be easier for employers to dismiss an employee “not suitable” for the position during a probationary period. To help achieve this, a lighter-touch dismissal process is suggested as well as a possible nine-month probationary period.
The Bill does not include a right to turn off, which would have made contacting employees out of office hours difficult for employers. After consultation, this will be addressed through a Code of Practice that is likely to give employers more flexibility in implementation.
The government wants to make flexible working the default in order to retain workers for longer periods of time and increase retention rates. Although these intentions are commendable the stated goal of the government is to “ensure that more requests are accepted”, meaning that employers will find it harder to refuse requests.
Employers are concerned about the government’s plans to combine the status of “employee” with that of “worker”, and grant all workers full employment rights. The law surrounding employment status is complex. The government has acknowledged, however, that reform will take time to implement, and employers will be happy that it is not included in the new Bill.
“This Bill is serious business. It provides better rights for parents, sick people, new employees, flexible workers, workers who work zero hours, and many other groups. Employers should not be fooled.
How will the term ‘exploitative’be defined?
Martin Williams is the head of employment at Mayo Wynne Baxter
It’s important that employers remember the Employment Rights Bill has to go through a parliamentary process. This will require extensive consultation and secondary laws. It won’t happen in the exact form proposed or overnight.
It will be interesting to observe what the ‘ban on exploitative zero hours contracts’ means in practice, as it will depend upon how ‘exploitative” is defined.
“Bosses are going to be relieved”
Jo Mackie is a partner at Burlingtons and a leading employment lawyer.
“The Bill, as it is proposed, is good for the business, and at best, not so much for workers. The bosses will be relieved. It is enough to note that there was no ‘right of disconnect’. The odd sweetener has been offered to workers, like the right of flexible working. The only thing that has teeth is the change to zero-hour contracts. “The Bill fails to deliver the groundbreaking improvements in worker rights that Labour promised.”
‘Radical change’
Daniel Pollard is a partner at Charles Russell Speechlys
The most important change is the elimination of the unfair dismissal qualification service limit. A third of the current workforce has less than two years service, and therefore no protection against dismissal. Overnight, the change provides dismissal protection to a third of the workforce. “This is the most radical change in unfair dismissal laws since 1971.”
Will the courts be reform?
Paul Kelly is the head of employment at Blacks Solicitors
“One of our main concerns is that small businesses may have to deal with more red tape, which could have an unintended effect of discouraging employers from hiring new employees and even dismissing staff who have less than two years of service before the law comes into effect. The government has yet to address how it will reform employment tribunals in light of the expected increase in claims resulting from the increased rights. The system is already suffering from severe backlogs, and there are not enough judges. Whether it can cope with the increased claims will remain to be seen.”
Reporting of sexual harassment will be changed
Ivor Adair, Partner at Fox & Partners
Whistleblower protections will allow employers to reevaluate how they handle sexual harassment reporting and prevent it. New laws that raise the bar for the duty to prevent harassment to “all reasonable measures” could also help to reduce sexual harassment.
There is no certainty and no immediate outcome.
Jane Hallas is the head of team at WorkNest and a solicitor.
The Employment Rights Bill, the government’s new flagship bill, is over 158 pages long with 119 sections. It also contains 7 schedules. It will take some time for this to sink in, but it won’t happen right away. The bill is expected to receive Royal Assent by next summer. Many of the provisions are then subject to further consultation. “The so-called “day 1″ right to unfair dismissal won’t come into force until Autumn 2026. This will be subjected to a probationary phase, which will itself be subject to consultation.”
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