In our previous ERB Series Insight we looked ahead to the ERB’s report stage debates and third reading in the House of Commons on 11 and 12 March which encompassed several notable amendments to the Bill proposed by the government.
Following that taking place, the updated bill, incorporating the government’s amendments that were passed by the Commons, was transferred to the House of Lords and will be debated at its second reading there on 27 March 2025. As per the process that happened in the Commons, the Lords will also have committee and report stages and a third reading (none of these are scheduled yet), all of which can result in further proposed amendments. That’s all before it then heads back to the Commons for any Lords amendments to be debated until such time as the bill is finally agreed.
So, in summary, plenty of time for more changes to happen...
Accordingly, rather than provide a detailed synopsis of the latest iteration of the ERB and explore possible consequences of matters which could well change again, we have limited this update to a brief overview of some of the bigger or more note-worthy amendments emerging from the Commons last week.
The Fair Work Agency (FWA) — will be empowered to bring ET proceedings on behalf of workers or to provide workers with legal assistance including advice and representation in pursuing an employment law claim. It will also be able to issue a notice of underpayment of monies due to a worker, such as Statutory Sick Pay (SSP) or National Minimum Wage (NMW), for periods going back up to six years, which the employer will then be required to pay.
There was also comment made during the debate about the low number of NMW violation prosecutions and an indication this will be very much on the FWA agenda.
Agency Workers — will be included in the new guaranteed hours and reasonable notice of shifts provisions, colloquially referred to as the “zero hours” provisions.
Collective consultation — the original proposal of the ERB — to remove the words “at one establishment” from existing legislation about when the duty to collective consultation kicks in — has been revised following significant opposition during consultation and debate. The concerns raised and, seemingly, heeded by the government, related to large employers with many sites (such as national retailers, hotel chains etc) which would potentially be in a perpetual state of consultation. Potential consequences included rendering management and coordination of unrelated consultation exercises extremely complex and less effective.
Under the revised proposal, the need to consult when 20 or more redundancies are proposed within 90 days at one establishment will remain. However, there will also be a new provision specifying a different threshold number, (that will be set out in secondary regulations but will be higher than 20) to be used when redundancies are being made at more than one establishment.
This seems set to be another one of those issues in the bill that will inevitably be met with calls for detail on what the proposed threshold will be.
Compensation for failing to collectively consult / “protective awards” — will increase from 90 to 180 days.
Umbrella Companies — will be brought within the scope of the ERB and provisions will be included to regulate these businesses in a similar way to employment businesses (ie agencies) for tax and employment rights matters.
Trade Union rights of access to a workplace and communication with workers — clarification that this will include digital access and communication, as well as physical access.
Bereavement Leave for pregnancy loss — during the Commons debates the government accepted a non-government proposal to introduce a separate right to bereavement leave for pregnancy loss (alongside those already in the bill relating to widening current bereavement leave entitlements to non-parents) and indicated this could be addressed as an amendment to the ERB during the House of Lords stages.
Statutory Sick Pay rates for low earners — will be set at 80% of normal weekly pay if an employee’s normal weekly earnings are less than the SSP rate. The percentage had not been set in the original bill pending the results of a consultation on that point.
Other Points of interest from the Commons stages this month
A review of rights around family leave and pay is likely to take place this summer (June has been mentioned) addressing issues such as a review of paternity leave and carer’s leave / kinship care.
Things not going ahead:
- Discrimination questionnaires will not be brought back but the impact of their repeal will be given “close consideration”.
- Right to disconnect has been abandoned.
- Interim relief will not be introduced for fire and re-hire dismissals.
Previous insights in our ERB Series
Employment Rights Bill Series: Employment Rights Bill Series continued (Principal Associate, Suzanne Nulty) 7 March 2025
Employment Rights Bill Series: Zero Hours Contracts and Guaranteed Hours: A Zero-Sum policy? (Principal Associate, Louise Singh) 27 January 2025
Employment Rights Bill Series: Small but significant changes to the statutory sick pay system (Principal Associate, Ashley Powis) 13 December 2024
Employment Rights Bill Series: First set of proposed amendments: what it means and what to expect (Principal Associate, Suzanne Nulty) 6 December 2024
Employment Rights Bill Series: Further rules on fair tipping (Principal Associate, Ashley Powis) 3 December 2024
Employment Rights Bill Series: Dismissal and Re-engagement - Tying the Hands of employers? (Legal Director, Ross Hutchison) 22 November 2024
Employment Rights Bill Series: The Fair Work Agency (Principal Associate, Suzanne Nulty) 15 November 2024
Employment Rights Bill Series: The Pendulum Swings on Industrial Relation (Partner Andrew Forrest and Principal Associate, Louise Singh) 8 November 2024
Employment Rights Bill Series: Day 1 right to claim unfair dismissal (Principal Associate, Suzanne Nulty and Associate, Lauren Barchet) 25 October 2024
Employment Right Bill Series – Flexible Working “Further Flexion” (Principal Associate, Suzanne Nulty) 21 October 2024
The Employment Rights Bill Series: 2024 – What’s in, What’s out, and What’s next (Principal Associates, Louise Singh and Suzanne Nulty) 11 October 2024
For advice on any aspects of the Employment Rights Bill, please get in touch with our expert employment law solicitors.
