What’s Happening with the Employment Rights Bill?

One of the biggest areas of reform is regarding statutory sick pay.  This is because the proposal is to remove ‘waiting days’, meaning SSP could become payable from the first day of absence.  Secondly, the current lower earnings threshold for qualifying for SSP will be removed and instead, qualification will be based on a percentage of the worker’s earnings.

Following a public consultation, the Government have confirmed that the appropriate percentage rate of qualifying for SSP is 80% of the SSP flat rate, for those whose normal weekly earnings are less that the flat rate (currently £123 and increasing to £125 from April).

• Both the employment agency and the end hirer will be responsible for providing the agency worker with reasonable notice of shifts. The Employment Tribunal will be able to apportion liability based on the responsibility of each party in each case.
• The employment agency will have the responsibility to pay any short notice cancellation or curtailed payments however, they will be allowed to re-coup this from the hirer where they have arrangements with the hirer covering this.
• The Secretary of State will have the right to publish Regulations that stipulate the form and way an agency worker should receive notifications of shifts, cancellations or curtailments.
• The end hirer will have responsibility to offer guaranteed hours to qualifying agency workers.
• Where there is a genuine temporary work need, there will be an exception clause that allows an employer to lawfully not offer guaranteed hours.
• The current system of extended hire periods and transfer fees under The Conduct of Employment Agencies and Employment Businesses Regulations 2003 will continue to apply.

There also appears to be amendments in the area of guaranteed hours to indicate that it may be possible to contract out of the requirement to offer guaranteed hours, so long as it is done so in the form of a collective agreement and that it is then replaced with something else that is contractual.

Before any of the reforms to zero-hour contracts can come into force, further Regulations will be required that will set out the practical application of the law.

Also, prior to this announcement on 3 March, the Business and Trade Committee published its report “Make Work Pay: Employment Rights Bill”.  This was a comprehensive analysis of the proposed employment reforms following a public consultation.  In the report, the Committee presented their findings in clear and actionable recommendations for the Government to consider.

They included:

• Make changes to the zero-hour contract reforms by defining how many weeks the initial and subsequent reference periods should be.
• Provide clarity on what is meant by “reasonable notice of a shift” that the employer requires (or request) the worker to work.
• Provide definitions for what is meant by “moved”, “short notice” in respect of cancelled, moved or curtailed shifts.
• For the Government to use delegated powers within the Bill to reform zero-hour contracts to enhance protections for agency workers
• Remove from the Bill the current wording in respect of zero-hour contracts “a minimum number of hours, not exceeding a specified number of hours’”. Instead, provide a definition of what is meant by “low hours”

Within the same Select Committee Report, it was also recommended:

• Proceed at pace the Government’s ambition to reform worker status to illuminate “bogus self-employment”
• For the Government to set out how it plans to regulate the sector and tackle non-compliance in the umbrella market
• Revisit how the established structures for enforcing equality law and to set out how the new Fair Work Agency will operate alongside the EHRC.
• Recommending the Government open a public consultation on the future of equality law enforcement targeting on where enforcement could be improved to better protect workers from harassment and abuse based on protected characteristics
• For the Government to consider how they are to use networks of employment support that can help employers in the implementation of the reforms
• Task Acas with leading on an information campaign to raise awareness and promote compliance with best employment practice
• The Government to develop a clear and long-term industrial relations strategy
• To provide a definition of “access” in respect of the new right of union access to non-unionised workplaces
• Introduce a replacement Workplace Employee Relations Survey (WERS)
• Making amendments to the Modern Slavery Act to ensure better transparency and due diligence, that includes the areas of reporting to become mandatory and removing the provision that allows organisations to claim they have taken ‘no steps’ to address modern slavery.
• Introduce penalties and to name and shame companies for not disclosing modern slavery statements and to consider the creation of failure to prevent offences like those set out in the Economic Crime and Corporate Transparency Act 2023
• Align with international law by prioritising the introduction of mandatory Human Rights due diligence.
• Ensure the new Fair Work Agency is properly resourced and has effective powers to deter non-compliance.