Further proposed amendments following consultation with businesses and trade unions
Following our update on the Employment Rights Bill in October 2024 and our update in December 2024, on 4 March 2025 the Government tabled more proposed amendments to the Employment Rights Bill (ERB). This followed weeks of consultation and responses from business groups, trade unions and wider civil society. The consultation included zero-hour contracts for agency workers, remedies in collective redundancy cases, trade union legislation, and statutory sick pay. Some clarity has also been provided in respect of the statutory probation period when protection from unfair dismissal becomes a “day 1” right.
This update sets out the key developments that Schools and MATs need to know.
1. Unfair dismissal
The original proposal to make protection from unfair dismissal a “day 1” right remains unchanged however the Government has indicated a preference for a nine-month statutory probation period, during which time a “lighter touch” approach to dismissal can be adopted. What this will mean in practice remains to be seen.
Schools and MATs should review and implement probation clauses into their template contracts of employment and adopt a probation policy if necessary.
2. Guaranteed Hours for Agency Workers engaged on Zero Hours Contracts
Agency workers engaged on a zero hours contract will now have the right to be offered guaranteed hours by the end user (e.g. the school or MAT) to reflect the hours worked during a reference period, which is expected to be 12 weeks. The Government says that the intention is to avoid agency workers being used as a “loophole” in their plans to end exploitative zero hours contracts. The obligation to offer guaranteed hours will rest with the end user, although the legislation will maintain flexibility by allowing the obligation to be placed on agencies or other entities in certain scenarios, which will be set out in secondary legislation. In the case of pre-existing contracts entered into before or within the two-month period after the Bill is passed, it is proposed that legislation will allow agencies to recoup these costs to the extent the hirer was responsible for them.
Both end users and agencies will be responsible for providing adequate notice of shifts, cancellations, or changes. For short-notice cancellations, agencies will handle payments to workers, but costs may be recouped from the end user if they are responsible. Schools and MATs should review existing contracts with agencies to ensure compliance.
Agency workers are a valuable section of the workforce in schools and education settings. This means that schools and MATs engaging agency staff will need to plan contracts carefully to comply with this new obligation.
3. Changes to Trade Union Legislation
A number of amendments regarding trade unions have been proposed. Key updates include:
- Strengthening protections against unfair practices during union recognition processes.
- Simplifying the current information requirements for industrial action ballots and notices. The Government will consult further on the delivery of e-balloting.
- Extending the expiry period for trade union industrial action mandates from 6 to 12 months.
- Expanding the rights of unions to access workplaces digitally for collective bargaining purposes, alongside physical access rights.
- Narrowing the notice period unions must give before they take industrial action, from 14 days to 10 days.
Given the strong trade union presence in the education sector, school and MAT employers need to stay informed on evolving trade union practices and maintain collaborative relationships with staff representatives.
4. Strengthening Safeguards in Collective Redundancy Cases
The maximum protective award for failing to consult employees collectively during redundancies where 20 or more redundancies are proposed in a 90-day period is set to double, from 90 days to 180 days. This could have significant financial implications as the award is based on gross pay (which could potentially be subject to an uplift of 25% where the statutory Code of Practice on Dismissal and Re-engagement applies) for each employee covered by the award. Schools and MATs undergoing restructuring should take note and ensure robust consultation processes are in place and that collective consultation obligations are complied with to avoid breaches of these regulations.
5. Statutory Sick Pay (SSP) for lower earners
The ERB initially proposed to remove the lower earnings limit for SSP, making all employees eligible for SSP. The amendments have now set out what percentage of earnings should be used to calculate SSP for these workers. The Government have proposed that lower earners will receive the lower of 80% of their average weekly earnings or the current SSP rate. Schools and MATs should adjust their payroll systems accordingly and ensure staff are aware of these changes.
6. Proposals for the Right to Switch Off abandoned
The proposal to give workers the right to ‘switch off’ outside of working hours was not included in the tabled amendments to the ERB. This proposal was a major part of the “New Deal for Working People”, as it sought to increase work-life balance by allowing workers to be uncontactable outside of working hours. However, following criticism and calls for change from business groups the proposal has been vetoed by the chancellor, Rachel Reeves, and the business secretary, Jonathon Reynolds. Consequently, there will be no statutory entitlement for employees to disengage from work-related communications during non-working hours.
7. Regulations for Umbrella Companies
Schools and MATs using umbrella companies to manage temporary staff should be aware that these entities will now be subject to regulatory oversight. This is aimed at ensuring comparable rights and protections for workers employed through umbrella companies as for those employed directly.
What Does This Mean for Schools and MATs?
As can be seen, since the ERB was first announced in October 2024, a significant number of changes have already been proposed. It is expected that more changes will follow before we arrive at a final position, and more likely than not secondary legislation will be required to give effect to some of the proposals.
There is no doubt that the proposals signal a significant shift in employment practices and employee rights. Schools and MAT employers must be proactive in understanding the changes and ensuring compliance to maintain positive working relationships and avoid potential disputes. Staying up to date with what is an ever-evolving picture will be critical, as will taking timely legal advice.
We will continue to keep our school clients updated as to the progress of the Bill.
If you have any questions about the Employment Rights Bill and what this means for your school or MAT, or you require any advice or assistance with a schools HR or employment law matter, please contact Aida Smajlovic, Partner and Head of Schools HR, on 020 7593 0278 or asmajlovic@wslaw.co.uk or our dedicated Schools HR helpdesk on 0345 026 8690 or schoolshr@wslaw.co.uk.