An Amendment Paper to the Employment Rights Bill was published on 27 November - at 53 pages long, it takes a bit of reading. While it is important to remember that, at this stage, they are only proposed amendments, the most significant changes are set out below.
Extension of time limits for making applications to the employment tribunal
The time limit for lodging employment tribunal claims is to increase from three to six months. This, as with many of the amendments in the paper, has been proposed by the UK Government. This change is not unexpected having been mentioned in the Next Steps policy paper and in Labour's Plan to Make Work Pay. If this does proceed then it seems likely that more claims will be raised but, on the other hand, there will be more time to resolve issues prior to raising proceedings.
Right to guaranteed hours
The Amendment Paper includes a significant number of amendments to the provisions introducing guaranteed hours for zero hours and low hours workers. Some of these are requirements on employers to take certain procedural steps in relation to guaranteed hours. This includes provision of certain information to potential qualifying workers within a specified timescale; a requirement to give notice where an employer considers an exception to the duty to offer guaranteed hours applies; and provision for workers to bring tribunal claims should employers breach the duty. A number of amendments have also been proposed relating to the rules on payments when shifts are cancelled, moved or curtailed at short notice. These amendments have been proposed by the UK Government.
Unfair dismissal - initial period of employment/compensation
With protection from unfair dismissal due to become a day 1 right, the Next Steps paper confirmed there would be a consultation on the length of the initial period of employment during which employers may use a "lighter touch" and less onerous dismissal procedure. This consultation has not yet opened but, in the meantime, Liberal Democrat MP Sarah Gibson has proposed an amendment that will limit the initial period of employment to between three and nine months.The UK Government had previously confirmed their preference was for the initial period to last 9 months.
Meanwhile an amendment put forward by the UK Government will allow the Secretary of State to specify a cap on the compensatory award for successful unfair dismissal claims stemming from dismissals during the initial period. It is to be assumed that the cap will be lower than the current cap applied to the compensatory award in a standard unfair dismissal case. The UK Government has already said it intends to consult on this issue.
Statutory sick pay
A UK Government amendment extends the provisions relating to statutory sick pay (removal of the three waiting days and the lower earnings limit requirement) to Northern Ireland.
TU access to workplaces
A UK Government amendment requires trade unions to have a certificate of independence before it can benefit from the provisions relating to access to workplaces. A further amendment ensures that the right of access would not apply where the workplace is a dwelling.
Public sector outsourcing
In another UK Government amendment, new provisions are proposed for insertion into the Procurement Act 2023 that will re-introduce the guiding principles of the "Two-tier workforce code". This code - its full name being The Code of Practice on Workforce Matters in Public Sector Service Contracts - was introduced by the previous Labour Government, then withdrawn by the Conservative Government in 2010. The Code applied to public sector service contracts that involved a transfer of staff from the public to the private sector. It sought to ensure any new hires had no less generous terms of employment than the former public sector employees they would be working with, avoiding the creation of a two-tier workforce. The primary impact of the amendment is that for public sector service contracts in Scotland or Wales, the creation of regulations and codes of practice will be devolved to the Scottish and Welsh Governments. The purpose of these will be to flesh out how two-tier workforces can be avoided.
Equality action plans
An amendment proposed by Labour MP Gill Furniss would add menstrual problems and menstrual disorders to the list of what is included under "matters related to gender equality" in relation to the requirement to produce gender equality plans. Currently, the list covers addressing the gender equality plan and supporting employees going through the menopause.
Family friendly leave and pay
Other amendments, put forward by Liberal Democrat MPs, propose doubling the rate of statutory pay for maternity, paternity, adoption, shared parental and parental bereavement leave, increasing paternity leave to six weeks from the current two and the introduction of kinship care leave where family or friends take care of children when parents are unable to do so.
Non-disclosure agreements
An issue that has been talked about for some time is non-disclosure agreements and restrictions on their use in relation to disclosures about sexual harassment. An amendment by Liberal Democrat MP, Layla Moran, would mean any provision in an agreement that precluded a disclosure about any type of harassment would be void.
Substitution clauses
In possibly an attempt to address some of the complexities around employment status, Conservative MP, Nick Timothy, has proposed an amendment intending to prohibit the use of substitution clauses in employment, worker or "dependent contractor" contracts. In this context, a dependent contractor is someone who is not specified as an employee or worker, not required to perform services for the employer or contractor of services, but who is appointed to perform work or services, is paid according to tasks performed rather than hours worked, and who depends partially or primarily on the employer or contractor of services for employment and income.
The UK Government previously said that they will consult on a simpler framework to differentiate between workers and the genuinely self-employed, "ensuring that all workers know their rights" but, as yet, there is no timescale for this consultation to begin.
Will these amendments be included in the final Bill?
In terms of process, the amendments will now be considered by the Public Bill Committee. Proposals brought forward by the UK Government are likely to be passed, whereas those proposed by MPs that are not Labour Party MPs are less likely to progress. There is also still plenty of opportunity for further amendments to be tabled.
