Government tables amendments to Employment Rights Bill for consideration

As the Employment Rights Bill (ERB) continues its rapid progress through Parliament, the UK Government has tabled important amendments.

The number of amendments proposed are vast and detailed. However, we have noted some key changes employers should be aware of.

Collective consultation 

The maximum protective award in cases where there has been a failure to comply with collective consultation requirements will increase from 90 to 180 days. Collective consultation obligations apply where it is proposed that 20 or more employees may be dismissed over a 90-day period by reason of redundancy (which includes dismissal and re-engagement for a failure to agree to a change to terms and conditions of employment, often referred to as fire and rehire)).  

In response to their consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire, the Government has confirmed that it will not introduce interim relief for claims in respect of protective awards or unfair dismissal in so called fire and re-hire situations. However, the Government has confirmed that it will consider further measures if doubling the protective award does not prove to be a sufficient deterrent for employers to deliberately avoid complying with the consultation obligations.

The original draft of the ERB removed the ‘one establishment’ test for the purposes of determining when the obligation to collectively consult kicked in, meaning that employers would have to consult where proposing to dismiss 20 or more employees within a period of 90 days across its whole business. This received a lot of criticism from employers and the Government has now introduced a further amendment on this point. It is now proposing that the ‘one establishment’ test will be retained but instead provides for the Government to introduce a higher threshold to apply over multiple establishments. Further detail will be provided in regulations.  

Zero/low hour contract provisions

Zero/ low hour contract provisions in the ERB (which include the right to be offered guaranteed hours reflecting regular hours worked and compensation for cancelled, moved or curtailed shifts) will be extended to agency workers. The obligation will be on the hirer to offer guaranteed hours to qualifying workers. Responsibility will be placed on both the employment agency and the hirer for providing an agency worker with reasonable notice of shifts, changes to shifts etc. Responsibility to pay any short notice cancellation or curtailment payments to agency workers will rest with employment agencies (although there are provisions detailing when an agency can recoup such costs from the hirer).

Statutory Sick Pay (SSP) rates

The first draft of the ERB extended SSP entitlement so that all employees would receive SSP, including those earning below the lower earnings limit, but did not specify the amount of pay that such employees would receive. The Government has amended the ERB to provide that SSP is to be paid at a rate of either 80 per cent of worker’s normal weekly earnings or the current rate of SSP – whichever is lower. 

Industrial relations

The Government will simplify the information that trade unions are required to include in ballot and industrial action notices.  

The validity of a trade union’s legal mandate for industrial action will be extended from six to 12 months.

The time period for notice of industrial action that unions have to give employers will be reduced from 14 days to 10 days. The original draft of the ERB contained a reduction to seven days but following consultation, the Government has decided on 10 days. 

Another amendment allows for a digital right of access for trade unions under access agreements in addition to the physical access that the ERB already provides for. The Government will also be able to introduce a more detailed framework for fines to be issued by the Central Arbitration Committee (CAC) to prevent non-compliance with an access agreement. 

The Government will amend the ERB to provide protections where unfair practices take place (e.g. when a party attempts to influence the outcome of an application for recognition) at an earlier stage in the statutory recognition process from the point when the CAC accepts the union's application for statutory recognition (rather than just during the ballot phase as is currently the case).

Workers who join a bargaining unit after the CAC receives a recognition application from a trade union will not be entitled to be counted for the purposes of the statutory recognition process. 
The requirement for unions to ballot their members on the maintenance of a political fund every 10 years will be removed but unions will be required to remind members of their right to opt-out of contributing to a political fund every 10 years.

Separately, in the Government’s response to its consultation on creating a modern framework for industrial relations, the Government has also committed to introducing e-balloting and will imminently launch an e-balloting working group with trade unions and business.

Records relating to annual leave

A new obligation will be introduced requiring employers to keep records to show that they have complied with certain entitlements under the Working Time Regulations 1998 in relation to annual leave. It will be an offence, punishable with a fine, to fail to comply.

Notice of underpayments

A new power for the Secretary of State to issue a notice of underpayment to employers requiring payment of a sum due e.g. in respect of statutory sick pay or minimum wage, alongside the ability to issue a penalty to employers on whom they serve such notice. 

Next steps

There will be a further debate on the ERB at report stage in the House of Commons next week and we anticipate that the Government amendments will be pushed through. There are also amendments proposed by other MPs, but it is unlikely that these amendments will go through. One such amendment of particular interest is the proposal to extend bereavement leave to pregnancy loss before 24 weeks, as this has received a lot of media attention in recent weeks, and it will be interesting to see if the Government do consider this amendment. 

After the report stage, the ERB will have its third reading which is the final chance for the Commons to debate the ERB. At the end of the debate, the Commons votes on whether to approve the third reading of the ERB and if it does, the ERB will then move to the House of Lords. We will monitor any further important developments and keep you up to date. 

The Government have issued various responses to consultations which it launched regarding the ERB which can be accessed here:

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