Getting employment right – guidance on the proposed changes to employment rights

Having been introduced to Parliament on 10 October 2024, the Employment Rights Bill sees the Labour Party making good on its commitment to implement its proposals to reform employment law within 100 days of its accession to Government, with a wide-ranging assortment of proposals of varying significance.  

For now, most of the contents of the Bill are proposals and will remain so until the Bill passes through both Houses of Parliament and receives Royal Assent. That Parliamentary process means the proposals will almost certainly evolve before the Bill's eventual enactment, but the current proposals provide clear signposts of the Government's intended direction of travel, allowing schools, colleges and universities to take proactive steps to prepare for what is described as 'the biggest upgrade to workers' rights in a generation.'

How will schools, colleges and universities be affected by the Employment Rights Bill? 

Flexible Working

Flexible working is intended to become the default position where it is practical. 

As of April 2024, flexible working is now a day one right, meaning there is no longer a six-month qualifying period before employees can make flexible working requests. In practice, not much materially changed in April 2024 in that it is still a right to request flexible working, and the same eight statutory reasons for an employer's refusal of such a request remain the same, including an 'inability to reorganise work among existing staff' and/or an 'inability to recruit additional staff'.  

The Bill proposes to make flexible working the default for everyone and to introduce a greater focus on 'reasonableness'; with employers expected to explain why they consider it reasonable to refuse a request.

If not already done, schools, colleges and universities should update their policies and procedures for dealing with statutory flexible working requests to reflect the April 2024 changes. They should also be prepared in future to have to explain their reasoning more fully when requests are refused.

Zero-hours Contracts

Zero-hours contracts are widely used within the education sector, as a means of engaging workers on a flexible basis and providing work on a basis which may vary across the course of the academic year.

The Bill proposes several changes to zero-hours contracts: 

• The right for 'qualifying workers' to be offered guaranteed hours if they work more than their minimum contractual hours in a certain reference period; 
• The right for workers to be given reasonable notice of shifts and changes to shifts; and 
• The right to payment for cancelled, moved or shortened shifts when done on short notice.  

The explanatory 'Next Steps' document to the Bill confirms that where work is genuinely temporary, there will be no expectation on employers to offer permanent contracts.  For schools, colleges and universities, staff such as invigilators or sports coaches are often engaged on zero-hours contracts, and these changes could warrant consideration of whether placing such staff on short-term, fixed contracts spanning the period for which they are required outweighs the benefit of retaining a reserve of zero-hours workers indefinitely.  

Protection Against Dismissal

If enacted in its current form, the Bill will make protection from unfair dismissal a day one right, repealing the current two-year qualifying period.  To counterbalance this, the Bill also introduces the Government's view on a statutory probationary period with the 'initial period of employment', being a proposed 9-month period in which employers will be able to dismiss employees through lighter-touch procedures.  As it stands, we do not have details as to what these 'lighter-touch' procedures will entail.  Furthermore, this light-touch procedure is expected to apply only where the principal reason for dismissal relates to the employee's capability, conduct, illegality, or another substantial reason directly connected to the employee (not including redundancy or restructuring).  These proposals, if enacted would not be implemented until Autumn 2026 at the earliest.  

Schools, colleges and universities are advised to consider how staff on their probationary periods are managed. The greater flexibility to dismiss in this period does not mean that proper procedures do not need to be followed. Evidence that one of the permitted reasons for dismissal is relied upon, as well as evidence that a defined process was followed, will be crucial to avoiding unfair dismissal claims.  

There are still a number of areas of uncertainty, making it difficult for organisations to make radical changes to prepare immediately for when the new law comes into force. For example, it may be prudent to update contractual probationary periods, but it is too early to know how this should be approached.  That said, dismissal procedures will certainly be coming under closer scrutiny in due course, so organisations should be reviewing their relevant policies and, in particular, be carefully considering how their employees are managed during their probationary periods and ensure that managers are properly trained to manage poor performers properly. 

Redundancy consultations

The Bill expands the scope of obligations relating to collective redundancies, i.e. where there is a proposal to dismiss more than 20 employees. At present, the duties to consult representatives and notify the Secretary of State regarding collective redundancies are triggered by a certain number of redundancies at one establishment. The reference to a single establishment will be omitted, meaning that redundancies held simultaneously in different locations will in future be caught by the collective redundancy provisions.  As more details of these proposals emerge, schools which are part of wider trusts or groups should make the relevant centralised body aware of their plans to ensure coordination and compliance with the requirement to fully consult.  

Trade Unions and Strikes

The Bill makes significant proposals aimed at removing current barriers to the presence and activities of trade unions. In particular, it would remove the requirement for a minimum service level during strike action, as well as lowering the voting thresholds required for strike action to a simple majority of those voting in the ballot voting in favour of strike action.  Employees will also be protected from any detriment imposed on the grounds that they have participated in strike action. It would also give new rights to unions to access workplaces for the purposes of meeting, recruiting or organising workers, or facilitating collective bargaining (but not to organise industrial action). It would also introduce a new requirement to give workers a statement of trade union rights at the same time as they receive a statement of their terms of employment (or, presumably, the equivalent for non-employee workers).

Fire and Re-Hire

Employers' ability to 'fire and re-hire' employees who do not agree to variations of their employment contracts will be significantly narrowed. This is the often-controversial practice of an employer dismissing an employee and offering to re-engage them on new, often less favourable, contractual terms. The Bill provides a dismissal will be unfair if the reason (or principal reason) was that the employer sought, and the employee refused, a variation to the contract of employment. Similarly, if the principal reason for a dismissal is to replace the employee with a new employee on new terms but with substantially the same duties, these dismissals will be treated as automatically unfair.  

There are narrow exceptions, if the employer can show the reason for the variation was to prevent or significantly reduce financial difficulties which were affecting the ability to carry on the business as a going concern. 

What is striking is that the hurdles to trying to go down a 'fire and re-hire' route would be significantly greater than dismissing employees altogether by reason of redundancy or reorganisation.  Schools, colleges and universities considering dismissing employees, and recruiting replacements on a similar role but reduced terms and conditions will in future need to take specialist advice before acting given the Government appears to be placing a renewed emphasis on negotiation between employer and employee and empowering employees.  

Protection against harassment

The Bill will enhance new legislation, which came into force as of 26 October 2024, that obliges employers to take a proactive approach to prevent sexual harassment in the workplace (including by third parties). In due course, it will hold them to even higher standards in respect of protecting staff from workplace sexual harassment, by making this an 'all reasonable steps' duty.  

The Bill will introduce direct liability on employers for third party harassment across all the protected characteristics, including an obligation to take all reasonable steps to prevent it.

Schools, colleges and universities should already be updating their anti-harassment policies and ensuring they have a robust framework in place as the first step in complying with this preventative duty.  In addition, they should be reviewing their terms of business with third parties in light of the new obligation to take reasonable steps to prevent third party sexual harassment. 

School Support Staff Negotiating Body 

In recognition of the value that support staff have to the workforce and to young people's education, the Bill proposes to reinstate the School Support Staff Negotiating Body ('SSSNB') which was previously scrapped by the coalition government in 2010.  The SSSNB will replace the National Joint Council in the negotiation of pay and conditions for support staff such as TAs, administrative staff, catering staff and caretakers, with the precise definition of 'support staff' in this context to be consulted upon.  

The SSSNB's scope will cover support staff in all state-maintained schools, including academies and schools within multi-academy trusts, and it will be responsible for matters related to the terms and conditions, remuneration, training, and career progression of such support staff.

Equality Action Plans

Employers with more than 250 employees will be required to publish action plans setting out the steps they are taking in relation to specific matters related to gender equality, such as the gender pay gap and how they are supporting employees going through menopause.  

Fair Work Agency 

The Bill will introduce a new state enforcement agency, the Fair Work Agency, which will be empowered to inspect workplaces and enforce compliance with employment law.  

Still to come…

All in all, the proposed Bill offers greater protection to a wide class of workers, and the general expectation is that the number of employment tribunal claims will significantly increase, regardless of sector.  In light of this, employers in the education sector may wish to review the adequacy of their insurance cover. 

Notably, the Labour Party's perhaps most ambitious proposal: to consolidate all existing employment categories into a single worker status, was not included in the Bill, and so further reforms to UK employment law may remain on the horizon. 

If you would like to discuss any of the topics covered by this article, please contact Hugh More or your usual Withers contact.