First published 29.10.2024

The Government has published four consultations on provisions contained in the Employment Rights Bill (the Bill). The consultations seek views on the following:

  • remedies against abuse of collective redundancy consultation and ‘fire and rehire’ rules;
  • how to apply to agency workers the right to a guaranteed hours contract for zero or low hours workers and the right to reasonable notice of shifts and to compensation for short-notice changes;
  • changes to trade union legislation; and
  • changes to statutory sick pay (SSP) rules.

Make UK will be responding to these consultations, all of which close on 2 December. Below, we provide further details and invite your views.

Collective redundancy and fire and rehire

The Consultation on strengthening remedies against abuse of rules on collective redundancy and fire and rehire seeks views on measures to strengthen the remedies in respect of statutory collective redundancy consultation and on whether it is appropriate to apply interim relief to the provisions in the Bill to protect employees against ‘fire and rehire’ practices.

In relation to collective redundancy consultation, the Government is considering whether to increase the maximum protective award that an employment tribunal can award where an employer does not comply with its obligations. The collective redundancy rules cover not only ‘redundancies’ in the usual sense, but also other dismissals for reasons not related to the individual, most notably dismissals to change terms. The Government proposes either increasing the maximum protective award from 90 to 180 days’ pay per affected employee or removing the cap on the protective award entirely to give the tribunal discretion to decide the size of the penalty awarded in case of breach. The consultation also seeks views on whether interim relief should be available to employees who bring protective award claims. An application for interim relief is an employment tribunal process which, if successful, essentially guarantees pay and benefits for an employee who brings a tribunal claim for a protective award until the final tribunal hearing, provided the employee can show it is ‘likely’ that their claim would succeed. (Separately, the Government intends to gather views next year on doubling the minimum consultation period from 45 to 90 days when an employer is proposing 100 or more redundancies in a 90 day period.)

In respect of fire and rehire, the Bill makes it automatically unfair to dismiss an employee in order to vary their contract, except if the change is needed to allow the business to remain viable when it is in financial distress and there is genuinely no alternative to changing the terms. This consultation seeks views on whether interim relief should be available to employees who make an automatic unfair dismissal claim in a fire and rehire scenario. This would enable an employee to remain in employment, or receive pay and benefits, up until the full tribunal hearing if they could establish it is ‘likely’ that their claim would succeed.

Agency workers and one-sided flexibility

The Consultation on the application of zero hours contracts measures to agency workers seeks views on how to apply the new right in the Bill for zero hours and low hours workers to be offered a guaranteed hours contract to agency workers. It also seeks views on the application to agency workers of the new rights in the Bill for workers to receive reasonable notice of shifts and payments for shifts cancelled or curtailed at short notice. Key questions in the consultation centre on which responsibilities should lie with ‘the hirer’ and which with the agency.

Trade union legislation

The Consultation on creating a modern framework for industrial relations seeks views on some of the Government’s proposed changes to trade union legislation, as set out in Next Steps to Make Work Pay. For example, the Government wishes to hear views on its proposals to simplify the information that unions are required to provide to employers, and to the length of notice trade unions are required to give to employers, at different stages of the industrial action process. It is also inviting views on extending the expiry of a trade union’s mandate for industrial action from six to twelve months, as well as on strengthening provisions to prevent unfair practices during the trade union recognition process and on how to enforce new rights in the Bill for trade unions to request access to the workplace.

Statutory sick pay

The Consultation on strengthening statutory sick pay considers how SSP should be calculated for those who earn below the lower earnings limit (currently £123), given the Bill makes such employees eligible for SSP for the first time.

Make your voice heard

Make UK will be responding in detail to the consultations on behalf of its members, as well as continuing to engage with Government on all the proposals in the Bill to ensure that the views of business are heard. We welcome the opportunity to comment on the detail of proposals, and will also continue to urge the Government to consider the cumulative effect of their proposed reforms (as the Government’s plans could have a significant impact on business in term of increased burden and cost).

We are keen to hear your views on the proposals in these four consultations, including your insights on how specific measures might affect your business and workers in practice. If you would like to contribute, please email our Policy Team with any comments on these four consultations, or other measures in the Bill, by 15 November.

How we can help

We will keep you informed of developments as the Bill progresses through Parliament and the Government continues to consult on its proposals.

If you are a Make UK subscriber, you can speak to your regular adviser with any queries you may have about these various employment law proposals and to request further consultancy support. Make UK subscribers can also access guidance on a wide range of employment law topics including template policies and drafting guidance in the HR & Legal Resources section of our website.

If you are not a Make UK subscriber, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information contact us on 0808 168 5874 or email [email protected].