The Government continues to tinker with the Employment Rights Bill (ERB). The news that the Right to Switch Off has been dropped is no surprise to employment lawyers. It’s disappointing from the point of view of discrimination lawyers like didlaw who focus on workplace disability discrimination, health issues and work-related stress. The Right to Switch Off had a real prospect of being able to address burnout and the long hours culture which leads to much mental ill health. Labour has let us down here.
A number of consultations are however still underway with business organisations and trade unions. The latest details to emerge include
- Zero hours contracts measures for agency workers
- Improving remedies in collective consultations around redundancy
- Providing statutory sick pay to the lowest paid workers.
In brief…
Zero hours contracts measures for agency workers
The Bill contains measures to tackle the one-sided flexibility in zero hours contracts, introducing a right to guaranteed hours reflecting the hours workers have worked during a reference period (anticipated to be a 12-week period).
Amendments are being tabled to set out a framework for agency workers to also enjoy these measures. The obligation to offer guaranteed hours will sit with the end-user of the worker’s services but both the end user and the agency will be responsible for providing reasonable notice of shifts, cancellations and changes. Agencies will be responsible for making payment to workers which result from short-notice cancellations, changes or curtailments of shifts. Agencies will be free to negotiate terms allowing them to recoup these costs from the hirer if the hirer was responsible for any changes. For pre-existing contracts agencies will be able to recoup costs if the hirer was responsible.
Remedies in collective consultation cases
The Bill is being amended to double the maximum period of the protective award for failing to adhere to collection consultation requirements. Currently the period is 90 days. This will be extended to 180 days.
You can reads the outcome to the consultation on Making Work Pay: collective redundancy and fire and rehire here.
The Government intends to gather further views on strengthening the collective redundancy framework and updating the Code of Practice on Dismissal and Re-Engagement to ensure that it reflects the Bill’s fire and rehire provisions. There is a new right to claim automatically unfair dismissal if the reason for the dismissal is that the employee did not agree to an employer’s variation of contract.
The Government has decided against interim relief awards for employees who bring claims for protective awards or who claim unfair dismissal in a fire and rehire scenario.
Statutory sick pay
The Government has published its response to its consultation on strengthening statutory sick pay (SSP) under the Bill. You can read the full response here.
People earning below the Lower Earnings Limit (LEL) per week (currently £123 but due to increase to £125 from 1 April 2025) are not currently eligible for SSP. The Bill proposes to remove this lower limit enabling those workers to be eligible for SSP.
The consultation focused on establishing what percentage of earnings should be used to calculate SSP for these workers. The response was 80% of the SSP flat rate where 80% of an employee’s normal weekly earnings is less than the flat rate.
