Employment Rights Bill – What’s the Current Status?

The Employment Rights Bill (the “Bill”) is currently going through the ‘committee stage’ in the House of Lords. A number of amendments relating to zero hours, low hours and agency workers, flexible working and the removal of the waiting period for statutory sick pay (SSP) have been debated and agreed.

What amendments have already been made?

Key amendments, which have been made recently, include:

• Workers on annualised hours contracts have been brought within the scope of the guaranteed hours provisions, by introducing a calculation method to determine the apportioned number of any unassigned hours in the relevant reference period.
• An employee will be deemed to have been automatically unfairly dismissed where the employee is dismissed for bringing an employment tribunal claim in circumstances where their employer has either incorrectly issued a notice stating that their guaranteed hours offer has been withdrawn, or where the employee alleges the existence of any circumstance which would constitute a ground for bringing such proceedings.
• The definition of ‘movement’ of a shift has been widened to provide for situations where a shift is either split in two or more parts, or where the starting time remains the same, but part of the shift is moved so that it ends later that day than initially anticipated.
• Technical changes have been agreed relating to payments for short notice cancellation, movement or curtailment of shifts where an exception applies. Employers will not need to provide a notice if they pay the worker within the deadline for making the payment. This amendment will also apply to work-finding agencies and agency workers.
• A shift will be a ‘qualifying shift’ if it would have been worked, or is being worked, by the worker under a worker’s contract that “requires the employer to make some work available to the worker”.
• The requirement to give an explanation within the notice of exception to the duty to make payments for cancelled, moved or curtailed shifts, for both directly engaged and agency workers, does not require the disclosure of information that is commercially sensitive, nor does it require the disclosure of information where the disclosure would breach data protection legislation or breach a duty of confidentiality.
• Employees on zero hours, low hours or agency worker contracts will be treated as preferential debts, meaning that they can receive short notice payments in the same circumstances as they would receive other wages should their employer become insolvent.
• Information will not have to be provided and will not be disclosed to a tribunal or court under the zero hours provisions where, in the minister’s opinion, the disclosure would be against the interests of national security.
• Employment tribunal proceedings under the zero hours provisions can be instituted, continued or defended by a personal representative of the deceased, in the event of a worker’s death, an employer’s death, or, in claims involving agency workers, the death of another respondent.
• Employment tribunals will be able to impose financial penalties on all types of respondents in claims brought under the zero hours provisions where there are aggravating circumstances.

The Employment Tribunals Act 1996 will include payments for cancelled, moved or curtailed shifts within its scope, therefore ensuring that regulations can be made:

• which allow benefits to be recovered where a worker has been forced to claim benefits because they did not receive such a payment; and
• which allow benefits to be recovered from all types of respondents in claims brought under the zero hours provisions.

What are the next steps?

The committee stage is scheduled to continue until 5 June 2025. The next clauses to be considered concern the protection from harassment provisions.

If you need support or advice on the proposals, or with reviewing your existing policies and procedures, then our employment team is here to help.