Amendments to the Employment Rights Bill published

Hot off the heels of the Employment Rights Bill (ERB) published in October, the Government has published its amendment paper to the ERB.

The ERB will implement key changes to employment legislation, such as enhanced flexible working rights, unfair dismissal as a day one right and restricting the use of “exploitative” zero hours contracts.  The amendment paper sets out the changes which the Government proposes to make to the ERB, some of which were not mentioned at all in the ERB.  Other changes provide some detail on the many ‘known unknowns’ in the ERB.

In this article, we will explore the key changes highlighted in the amendment paper in more detail.

Increase of time limit to bring a claim to the Tribunal

One of the key, and most unexpected changes in the amendment paper, is the extension of the time limit to bring all claims to the Employment Tribunal.

The current time limit to bring most claims to the Employment Tribunal is three months from dismissal or the act of discrimination or detriment complained of.  The amendment paper has proposed increasing the time limit to six months.

This would mean that potential claimants considering claims for issues such as discrimination, whistleblowing and unfair dismissal will have double the amount of time to decide whether to commence a claim.

A common challenge for employers receiving claims is that their defence relies on the co-operation of employees involved in managing the claimant.  The more time that passes from the incidents complained of, the more memories begin to fade and the greater the possibility that key employees may have left the organisation.  Whilst former employees can still appear as witnesses for their former employer in tribunal hearings, there is less incentive for a former employee to cooperate.  This can impact the nature of their testimony.

So increasing the time limit as proposed could make it harder for employers to successfully defend claims.  This is a significant change and it is surprising that it was left out of the ERB.

Definition of ‘initial period of employment’ and day one unfair dismissal right

The ERB is introducing protection from unfair dismissal for employees from the first day of their employment, subject to an ‘Initial Period of Employment’ (IPE).  During the IPE employers will be able to dismiss employees using a so called “light touch” procedure, but the exact requirements are yet to be seen.

The Government previously indicated that the IPE would be 9 months. The amendment paper has clarified that the IPE will be “between 3 and 9 months”.  We still await a final decision on exactly how long the IPE will be.

Clarification of ‘short notice’ in the context of shift works notice for moved, curtailed or cancelled shifts

The ERB created three rights for zero hour workers: the right to reasonable shift notice; the right to reasonable notice of shift changes or cancellation; and payments for moved, curtailed or cancelled shifts at short notice.

The amendments give Employment Tribunals discretion as to whether to make an award and the size of such award where a shift is moved, curtailed or cancelled at short notice.

This is achieved by allowing tribunals to determine what the payment should be, taking into account the “seriousness of the matter”.  But the ERB still provides for a cap on the size of any such award, but we await further details as to what that cap will be or how it will be calculated.

Trade unions access to workplaces excludes dwellings

Clause 46 of the ERB gives the right of trade unions to access workplaces. However, the amendment paper clarifies that “workplace” does not include any part of a workplace used as a dwelling.  To access such a dwelling, trade unions must be in receipt of a warrant to access the property.  

Matters related to general equality expanded

The ERB provided a clause whereby large employers are required to produce equality action plans. Clause 26 of the ERB defined that matters relating to gender equality include addressing the gender pay gap and supporting employees going through the menopause. The amendment paper now goes one step further and has including supporting employees with menstrual problems and menstrual disorders.

Watch this space

There is still a lot of detail to be ironed out before we can fully assess how the new rights in the ERB will work in practice and how these will impact upon employers and employees.  More information will be provided in 2025.