Unpacking the latest Employment Rights Bill changes

Following the Government’s publication of an implementation roadmap for the Employment Rights Bill, we now know that further changes have been proposed, some of which could be significant; however, it remains unclear whether they will receive parliamentary approval.

The proposed changes to the Employment Rights Bill include:

Family leave rights

Bereavement leave will be extended to cover pregnancy loss before the 24th week of pregnancy. Currently, only parents who lose a child or suffer a stillbirth after this time are entitled to this type of leave. The conditions of eligibility (for both leave and pay) remain unclear, but it is likely that the right to leave will also be available to those who have a relationship with the person who has suffered the pregnancy loss, or with the child who would have been born had the loss not occurred.

The current systems for all types of family leave and pay are under review, which could lead to significant changes in this area of law – particularly the introduction of paternity leave paid at 90% for up to six weeks.

It is also possible that a new type of parental leave, called ‘kinship leave’, will be introduced for friends, relatives or extended family members who take responsibility for raising a child.

Non-disclosure agreements relating to harassment & discrimination

This is a new and potentially significant amendment to the Bill, which would render void any provision in an agreement between an employer and a worker if it seeks to prevent the worker from making certain allegations or disclosures relating to work‑related discrimination and harassment.

This would suggest that settlement agreements will no longer be valid where confidentiality is a condition of reaching a deal (as it almost always is). This is likely to amount to a ban on such agreements unless the confidentiality provision is part of an ‘excepted agreement’. It is not yet clear what will constitute an ‘excepted agreement’, as this will be defined in subsequent secondary legislation. Depending on how this is set out, employers may soon choose not to settle tribunal claims or use settlement agreements where they cannot secure confidentiality.

It is important to note that this restriction would apply to all types of discrimination claims, not just sexual harassment, where concerns over the use of NDAs are already well publicised. However, further information is still required to clarify what will qualify as an exception and how these rules will work in practice.

‘Fire & rehire’ restrictions

The original proposals banning the practice of ‘fire & rehire’ were strict, allowing an exemption only if it could be established that the company was facing financial ruin and imminent closure.

Questions were raised about what this would mean for employers needing to make changes to contracts of employment, even if those changes were minor or required by law. The new amendments introduce a ‘restricted variation’ definition, which clarifies that certain matters – such as changes to pay, piece work, pensions, hours, shifts, and time off – will definitely fall within scope. The detail remains subject to further legislation, but these are the aspects we would expect to be protected.

Zero hours/low hours & agency workers

This is another complex area that will require further detail to be set out in secondary legislation. Essentially, additional protections have been proposed for agency workers when employers offer them guaranteed hours, ensuring they are paid at least as well as they were when not on guaranteed hours.

It also appears that the definition of short notice for changes to, or cancellation of shifts will be set at 48 hours.

These aspects are expected to go out for consultation in the autumn.

Changes to SSP

There is now a possibility of an SSP rebate for smaller businesses, recognising the extra burden of paying from day one. It has been suggested that this may apply to businesses with fewer than 250 employees, but further details will be confirmed if this amendment is approved.

What does the future hold?

These amendments will return to the House of Lords on 14 July for further debate, before returning to the House of Commons for a final vote. This vote is now expected to take place after the summer recess, and the Bill may not receive Royal Assent until the autumn.