At HR Services Scotland, we pride ourselves on our provision of HR advice and assistance to clients. To this end, we have put together this document to inform our clients of the main points of the proposed Employment Rights Bill which is currently working its way through Parliament.
The purpose of providing this summary is to give our clients an opportunity to take advice from us and make any changes to process/procedure in advance of the legislative change.
The information set out in this summary is provisional and will remain so until such time as the Bill is completes the Parliamentary procedure and comes into effect. At that point, we will notify our clients of the date when the changes will take place (overseen by the new Fair Work Agency (FWA)).
Increased Protection against Unfair Dismissal
Current Position:
At present, the qualifying period for protection from unfair dismissal (excluding claims of discriminatory conduct under the Equality Act 2010) is two years.
Proposed Changes under the Employment Rights Bill:
The Employment Rights Bill proposes to remove the two-year qualifying period, making protection from unfair dismissal a “day-one” entitlement for all employees in the UK.
This change is of huge significance to employers in terms of managing risk.
The proposal is that employers will require “sufficient reason” to dismiss any employee.
This change is likely to be supported by a statutory probationary period, during which a dismissal related to any of the reasons below is unlikely to be treated as unfair, provided that the correct procedure has been followed (and even if the dismissal could be considered unfair if the employee had longer service):
- Capability
- Conduct
- Contravention of Law
- Any other reason that is ‘substantial’
As yet no details regarding the steps that employers should take as part of a compliant dismissal procedure have been issued. This information is expected to be set out in the final legislation.
The length of the new statutory probation period has not yet been specified, but is widely expected to be nine months
‘Fire and Rehire’ under the New Legislation
Current Position:
“Fire and rehire” refers to a practice where an employer dismisses an employee, and then offers to rehire them on different terms, often with less favourable conditions such as lower pay or reduced benefits. This is typically done to bypass the need for individual negotiations and ensure the new terms are accepted by employees.
Proposed Changes under the Employment Rights Bill:
Under the new Bill, automatic unfair dismissal will include the following reasons:
- Dismissal due to the employee not agreeing to variations to their contract;
- Dismissal in order to hire a new employee, or re-hire the existing employee under a new contract, for the same job and duties for which the employee was originally employed.
The only potential exceptions to these reasons qualifying as automatic unfair dismissal would be if the employer can prove that the variation of contract was necessary in order that the following could be mitigated:
- Financial difficulties that would result in imminent dismissals;
- Financial difficulties that would affect the ability of the business to proceed as normal;
- Financial difficulties that would affect the ability of the business to proceed with its main activity.
Changes to Zero-Hours Contracts
Current Position:
The use of zero-hours contracts, which do not provide for a specific number of working hours per week or for a minimum number of hours per week, has been widely criticised as targeting unskilled and, typically, lower paid staff.
Proposed Changes under the Employment Rights Bill:
The proposal is that employers will be required to provide contracts with minimum guaranteed hours. Workers must receive reasonable notice of shifts. Compensation will be mandated for cancelled shifts or those changed at short notice.
This is aimed at ending unfair scheduling practices and ensuring workers, particularly in retail, hospitality, and care sectors, have a greater degree of certainty as to regular salary.
Building on existing rights, the Bill enhances provisions for requesting predictable working patterns:
- Workers with at least 4 weeks’ service can apply;
- Employers are obligated to consider such requests fairly;
- Rejections must be based on reasonable business grounds.
- This is intended to promote job stability and is especially beneficial for gig workers, carers, and parents.
- Agency workers will be included in these new rights, although exceptions are expected to be made regarding seasonal work, and other work where temporary hours are genuinely needed.
In the case of agency workers, it will be the shared responsibility of the employer and the agency to provide these rights; legislation is expected to specify how agency workers are to be notified of shifts and shift changes. The agency is expected to be solely responsible for payment in the event of cancelled or shortened shifts, although the agency may be able to recover at least part of those costs from the employer.
Flexible Working Requests Approval Requirements
Current Position:
At present, all employees have the ‘day-one right’ to request flexible working, but employers can reject any such request by providing an explanation containing one or more of a number of “business reasons” and by following the regulatory procedure.
Proposed Changes under the Employment Rights Bill:
Once the new Bill comes into force, employers will be required to approve such requests unless they can demonstrate “disproportionate” business hardship. This change of legislation is intended to place an additional burden of proof on the employer and make it harder to refuse such requests.
Other ‘Day-One’ Updates
Paternity Leave
Current Position:
As it stands, an employee requires a minimum of 26 weeks’ continuous employment by the end of any day in the qualifying (15th week before the expected week of childbirth) week.
Proposed Changes under the Employment Rights Bill:
- Paternity Leave will be changing to a ‘day-one’ entitlement, and the restriction on taking Paternity Leave after Shared Parental Leave is due to be removed.
- Future legislation will address the matter of pay during Paternity Leave.
Unpaid Parental Leave and Parental Bereavement Leave
Current Position:
As it stands, an employee requires a minimum of one years’ continuous service to be eligible for Unpaid Parental Leave.
Proposed Changes under the Employment Rights Bill:
Unpaid Parental Leave and Parental Bereavement Leave will become ‘day-one’ entitlements.
Bereavement Leave
Current Position:
Bereavement Leave is presently available only for the bereavement of a child.
Proposed Changes under the Employment Rights Bill:
Bereavement Leave will become a ‘day-one’ right for a minimum of one weeks’ leave and will be extended to the loss of close family members.
Statutory Sick Pay (SSP) Adjustments
Current Position:
Currently, Statutory Sick Pay (SSP) is not payable for the first three days of sickness absence. To be eligible thereafter an employee must have either a full-time or part-time contract and earn at least £125 per week (on average).
Proposed Changes under the Employment Rights Bill:
The Employee Rights Bill proposes that employees will be eligible for SSP payments from the first day of sickness absence, and will be eligible for SSP (at a potentially lower rate) if earning under the £125 per week threshold.
Questions or Concerns?
Once again, at present the Employment Rights Bill is making its way through Parliament and has not yet come into effect, so the details are subject to change.
With that in mind, should you or any of your employees have any questions regarding the proposed Employment Rights Bill, our qualified HR team would be happy to discuss these with you.
They are available on 0800 652 2610 (option 1 for HR), or via email at info@hrservicesscotland.co.uk.
