A final review of the Employment Rights Bill

The Employment Rights Bill is a hot topic of conversation amongst business owners and HR professionals, and with so many employment law changes coming, there is a lot to digest. 

Luckily, the government has released greater detail about what the new legislation means for businesses. More information can be found in the  Next Steps to Make Work Pay policy paper which provides details how the Make Work Pay reforms will work.

In our mini blog series, we have broken down the jargon to explain the main elements of the new legislation that will apply to your business. If you have missed our previous two blog updates, take read of A detailed look at the Employment Rights Bill, or A further breakdown of the Employment Rights Bill. Or keep reading for our final instalment. 

Equality action plans

The Employment Rights Bill will allow the Government to make regulations to require employers with 250 employees or more to develop and publish equality action plans showing what steps they are taking to address gender pay gaps and also to show what support they provide to employees going through the menopause. A recent government amendment to the Bill proposes that the government should also have the power to require employers to publish action plans on supporting employees with menstrual problems and menstrual disorders.

After the first publication of an employer’s gender action plan, it will not be required to publish information more frequently than every 12 months.

Dismissal during pregnancy or during or after statutory family leave

Protection against dismissal will be strengthened for pregnant women and those taking or returning from a period of statutory family leave, with further details set out in regulations.

Day one rights to family leave

Paternity leave will become a day one right for eligible employees, rather than currently requiring 26 weeks’ service at the relevant date. Similarly, unpaid parental leave will also become a day one right for eligible employees, rather than requiring one year’s service.

The existing right to two weeks’ parental bereavement leave following the death of a child under 18 or a stillbirth will be replaced with a more general bereavement leave, which will apply to the loss of a wider group of persons. Like the current provision for parental bereavement leave, bereavement leave will be a day-one right.

Regulations will specify exactly which relationships will be covered, as well as ensuring that where the person who has died is not a child, the minimum period of leave will be one week. Where the person has died is a child,  the minimum period of leave will remain at two weeks.

Statutory parental bereavement pay will continue to be payable where a child under the age of 18 has died, but provision is not made for the wider class of bereavement leave to be paid.

With many employers already providing a period of paid compassionate leave on a discretionary basis, it is questioned how frequently employees will choose to utilise family leave. In practice, given bereavement leave will be unpaid, grieving employees are more likely to take a period of (paid) statutory sick pay if they are not feeling fit enough to work as a result of their loss. 

Flexible working

Since 6 April 2024, employees have had a day-one right to make a request for flexible working under the Employment Rights Act. This includes requesting to work from home or work reduced hours.

An employer can currently refuse a request for one or more of the prescribed statutory reasons set out in the Act. Accepted reasons include:

• Additional costs for the employer
• Detrimental effect on the ability to meet customer demand 
• Not possible to reorganise work among existing staff

The wording of the legislation has always suggested that the test is a subjective one on the part of the employer. In other words, if the employer believes that one or more of the grounds applies, then the test is satisfied. It does not matter whether or not the belief is a reasonable one, so long as the employer genuinely believed it.

The government previously pledged to make flexible working the default right from day one, however the Employment Rights Bill doesn’t go this far and the changes it introduces are much more subtle.

The first change is to make clear that when an employer refuses a flexible working request it must be reasonable for them to do so. This obviously makes it more difficult for an employer to refuse a flexible working request by introducing a “reasonableness” requirement.

Other changes include that employers  will now need to explain why they consider it reasonable to refuse a request and there will be a new requirement for consultation with the employee before rejecting a flexible working request.

The flexible working legislation was the change that was giving employers the most anxiety. To the relief of many business owners, these changes go nowhere near as far as many feared. 

Based on the new information, as long as employers spend time assessing any flexible working request they receive, and can clearly express why it’s reasonable to refuse anything that’s not workable for them, they still should be able to make the right decisions for their business, without fear of reprise.

Statutory sick pay from day-one; scrapping lower earnings threshold

The Employment Rights Bill makes sweeping changes to SSP, including that it will be payable from the first sick day rather than from the fourth day, as is currently the case.

The lower earnings limit for eligibility for SSP will also be removed, which will mean all employees are entitled to some form of SSP no matter what their level of earnings are (although low earners will receive a set percentage of their normal earnings, rather than the full rate of SSP).

Next steps

We’re a step closer to understanding how the government’s employment law reforms will work, but with much of the detail in the Employment Rights Bill to depend on regulations and Codes of Practice that will sit beneath the legislation, there is still much more information to come.

If you need a team of HR experts in your corner to help you prepare for all the forthcoming changes, and to give you all the HR documents you need to do so – please have a look at our HR Advisory service.