With the new academic year in full swing and half term already fast approaching, the summer seems like a distant memory. However, cast your mind back and you may remember that it was in the King’s Speech on 17 July 2024 that the new Labour government announced its Employment Rights Bill, intended to deliver a “once-in-a-generation” overhaul of employment rights. They promised to do this within 100 days of taking office.
On 10 October 2024 and exactly 100 days since Labour took office, the Employment Rights Bill was laid before Parliament.
Billed (pun intended!) as an overhaul of employment rights and “the biggest upgrade to workers’ rights in a generation, and a significant step towards delivering this government’s plan to make work pay,” our Schools HR team consider the key proposed changes that will impact schools.
Key proposals
Unfair Dismissal
- Removal of qualifying period (currently set at two years) for employees to be protected from unfair dismissal.
- Unfair dismissal to become a day 1 right.
- It is expected that a statutory probation period will be introduced, during which an employer can adopt a “lighter touch” approach to dismissing an employee if things are not working out. The unions were pushing for a 6-month probation period, but the government has expressed a preference for 9 months. The length of the period will be a matter for consultation. A statutory code of practice is expected to supplement this change.
Flexible Working
- The current prescribed grounds under Section 80G Employment Rights Act 1996 (“ERA 1996”) upon which an employer can refuse a flexible working request will remain, but there will be an additional obligation on the employer to show that it was reasonable to refuse the application on that ground.
Zero Hours Contracts
- Obligation on employer to offer guaranteed hours to a qualifying worker after they have worked regular hours for a defined period. The defined period was previously tabled as being 12 weeks.
- Workers to have the right to refuse an offer of guaranteed hours and remain on a zero hours contract if that is their preference.
- Compensation for late cancellation of shifts.
TUPE in public sector outsourcing
- Two tier code for public sector contracts to be reinstated and strengthened. The aim is to ensure employees working on outsourced contracts are offered terms and conditions no less favourable to those who transferred from the public sector.
School Support Staff Negotiating Body
- A proposed amendment to the Education Act 2002 introducing an unincorporated body of persons known as the School Support Staff Negotiating Body (“SSSNB”).
- The matters within the remit of the SSSNB will be the remuneration of school support staff, terms and conditions of employment of school support staff, the training of school support staff and career progression for school support staff.
Collective redundancy consultation
- Collective redundancy thresholds to apply across a business, and not just to a single establishment. That means that if there are 20 or more redundancies within any 90-day period across the entire business, collective redundancy consultation obligations will kick in.
Trade Unions
- Proposal to simplify the statutory trade union recognition process.
- Introduction of new rights of access for trade union officials to meet, represent, recruit and organise members in workplaces.
- Trade Union Act 2016 and the Strikes (Minimum Service Levels) Act 2023 to be repealed.
Statutory Sick Pay (SSP)
- Removal of the three-day waiting period before entitlement to SSP kicks in. SSP to be made available from day one of illness.
- Removal of lower earnings limit for entitlement to SSP, currently set at £123.
Paternity Leave
- Removal of qualifying period requirement (currently 26 weeks) for paternity leave.
- Paternity leave to become a day 1 right (NB maternity leave is already a day 1 right).
- Ability to take paternity leave after Shared Parental Leave.
Unpaid Parental Leave
- Removal of the qualifying period requirement (currently one year).
- Unpaid parental leave to become a day 1 right.
Bereavement Leave
- Bereavement leave to be available to all employees. Currently under ERA 1996 it is limited to parents only (parental bereavement leave). The proposal is for the word “parental” to be removed.
- Bereavement leave to become a day 1 right.
Sexual harassment
- Greater obligation on employers to prevent sexual harassment and third-party harassment.
- Complaints about sexual harassment to be protected under the whistleblowing regime, in addition to the existing protection under the Equality Act 2010.
Fire and rehire
- New unfair dismissal right to constrain fire and rehire practices. There was previous talk of fire and rehire only being permitted in extreme circumstances, for example where a business may go bust if staff are not fired and re-engaged on less favourable terms.
What schools should do to prepare
Firstly, it must be acknowledged that these are mere proposals at this stage. There are various stages to a bill before it becomes law. It must pass through both the House of Commons and House of Lords, a committee stage and a report stage, before finally receiving Royal Assent and becoming law. Throughout that process a bill is debated and can go through a number of amendments. It is not a quick process. Moreover, much of what the government is proposing will require secondary legislation, meaning more delay to implementation. As it stands, the indication is that most of these changes, if they become law, will not come into effect before Autumn 2026 or later. What is clear is that more detail is required as to how these changes will operate in practice.
Nevertheless, schools should be aware of what is on the horizon and prepare accordingly. As the change to unfair dismissal rights is arguably the most significant, we advise schools to implement clear policies and procedures relating to recruitment and probationary periods, as well as policies dealing with performance management. Contracts of employment and offer letters should be revisited, and policies dealing with flexible working, paternity leave, bereavement leave, parental leave and redundancy may also need to be amended. The use of zero hours contracts will need to be reviewed, and schools should consider the benefit versus the risk of keeping a bank of zero hours workers on the books indefinitely. People managers and HR teams will require training to deal with the raft of legislative change.
We would expect an increase in the use of Settlement Agreements even where the employment relationship has been short lived, and so it is important that all such agreements are properly drafted and comprehensively deal with any potential claims.
The change to the thresholds relating to collective redundancy consultations will likely significantly impact Multi Academy Trusts. If the change is implemented, the thresholds will be based on number of redundancies across the MAT and not each single establishment (academy).
The extension of rights to workers will inevitably also mean an increase in the number of employment tribunal claims and “have a go” litigants. Schools are advised to ensure they have appropriate insurance to cover the risk of a claim, and that any such insurance also extends to governors and trustees, as we are seeing a rise in the number of claims brought against governors and trustees as individual respondents. In the absence of adequate insurance cover, they would become personally liable in the event of a claim. The DfE’s Risk Protection Arrangement is probably the most comprehensive cover available to schools, governors and trustees at this time and can now also be accessed by maintained schools.
As mentioned above, the changes are still at the proposal stage and there may well be some watering down of what has initially been tabled. There is no immediate need for panic but staying ahead of the curve and preparing in good time will be key.
The Federation of Small Businesses says the plans are rushed and chaotic. The unions say the plans do not go far enough. It remains to be seen how the government will strike a balance between the needs of businesses and workers.
We will keep our schools 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.