Natalia Milne, legal manager at Navigator Law, covers the main proposals of the Employment Rights Bill 2024

The Employment Rights Bill 2024 is a result of Labour’s promise to overhaul employment law in the first 100 days of government. While it has been described as the most substantial upgrade to workers’ rights in a generation, the rush to have a Bill ready for the deadline has led to a lot of compromise and lack of clarity. Most of the reforms will not come into place until 2026, which will give independent school employers plenty of time to familiarise themselves with the new provisions.

Day one protection

The most noteworthy change to existing employment law legislation is day one employment rights. The current position is that employees must have two years’ service before they are eligible to claim unfair dismissal at an employment tribunal.

The Bill will instead create statutory probationary periods. It has not been confirmed what length these will be but the government has said that they will be between three and nine months. It has also been confirmed that the government will launch a consultation on this. The details of this have, as yet, not been clarified but it is expected that there will be a lower bar for dismissal within the statutory probationary period allowing employers to assess the employee’s suitability for a role. The process for conducting a fair dismissal during this period may involve meeting with the employee to discuss any performance issues and allowing them the right to be accompanied at these meetings.

In summary, in theory employees will be protected from unfair dismissal from day one of their employment. However, if the dismissal takes place within a three-to-nine-month probationary period the process to ensure the dismissal is fair is likely to be a short-form version of a full disciplinary. A dismissal taking place after the probationary period will need to follow a full process. While this is a major change to employment law it does seem to row back somewhat from what was originally intended.

A number of questions still remain unanswered, for example, if an employee is dismissed during a probation period for performance issues, will the employer have to provide evidence for this? Is it possible that the employee can take the case to tribunal because the true reason for dismissal was something other than performance issues? These questions will continue to be unanswered until consultation has taken place.

In preparation for these changes employers should focus on the recruitment process. Ensuring that the right person is hired at the outset will prevent a lot of issues going forward. Job descriptions, reference follow-ups, induction and training are all areas that should be looked at more closely. Employers should also ensure that managers have the training and confidence to address issues head on and early enough in the employment relationship.

Flexible working

It had been stated that an aim of the Bill was to make flexible working the default position. This is another element of the Bill where it’s worth looking behind the headline. In terms of material changes to the law, it will now be the case that employers need to justify their reasons for refusing a flexible working request. The law already contains eight statutory reasons why an employer may turn down such a request. It seems that in order to comply with the new proposed legislation employers would need to explain in more depth why a particular reason was chosen. The penalty for breaching these rules will remain capped at £5,600. Since April last year it’s been possible for employees to make flexible working requests from day one of employment. Combined with these proposed changes it seems that more flexible working request cases will find their way to tribunal. The best way to avoid these issues is to receive requests with an open mind, make use of trial periods, and explain the reasons for any refusals.

Statutory Sick Pay

Major amendments to the Statutory Sick Pay (SSP) regime have been proposed by the Bill. Currently, employees will only begin receiving SSP on the fourth day of absence. This will now be payable from the first day of absence. SSP is currently not accessible to those earning below the lower earnings limit and this will also be removed.

Family friendly rights

A number of changes have been made so that employees have quicker and easier access to a number of family friendly rights. Parental leave is an unpaid form of leave which allows parents 18 weeks to spend time with their child up to their 18th birthday. A maximum of four weeks a year can be used. The employee requires one year of continuous service to be able to utilise this and the new Bill proposes making this a day one right. Additionally paternity leave is currently available to employees who have had at least 26 weeks’ service by the 15th week before the expected week of childbirth and again the Bill proposes making this a day one right.

Currently in the UK it’s not a statutory requirement for employers to offer compassionate leave on the death of a loved one. This is with the exception of parental bereavement leave which offers two weeks of paid leave upon the death of a child. It is the government’s intention to change this and to introduce a general statutory bereavement leave that will allow employees a week of unpaid leave. It is not yet clear what relationship the employee will need to have to the deceased to qualify for this. It is suggested that it may be the definition of dependant as used in other forms of leave which would extend to the employee’s spouse, civil partner, parent, child or someone in the same household that isn’t a tenant, lodger or employee.

In conclusion, the draft Bill may not be as revolutionary as promised but there are some major changes coming in the next few years. The Bill is currently in the committee stage in the House of Commons and still has to have a third reading and progress through the House of Lords before it becomes law. Employers should stay engaged with the consultation process and be aware of any developments that come from that. The key takeaway for employers is to keep up to date and refresh processes as required.

Natalia Milne