GB Employment Rights Bill and what it means for Northern Ireland

05/11/2024

THE LANDMARK THE BILL EMPLOYMENT RIGHTS BILL IN GREAT BRITAIN

On 10 October 2024, the Labour Government unveiled its once-in-a-generation Employment Rights Bill (the Bill), in what has also been referred to as a significant milestone in the evolution of workers’ rights in Great Britain. The Bill runs to 157 pages and is accompanied by over 100 pages of Explanatory Notes. In addition to the Bill, the Government also published a document Next Steps to Make Work Pay that summarises the reforms in the Bill and also other changes it is looking to implement in the future.

With 28 individual employment reforms, this substantial Bill will dramatically transform employer’s obligations and the workplace landscape. These changes will apply across the board and include changes on matters such as unfair dismissal, sick pay, changing terms, unpredictable hours contracts, flexible working, equality at work, trade union rights, family leave, and redundancy.

This Article considers the key proposals and compares the position in GB to what is being proposed in Northern Ireland.

CONSULTATIONS

Whilst most of the Consultations (and there will be quite a few) flowing from the Bill, will commence in 2025, four Consultations were commenced on 21 October 2024. Those Consultations periods will last for 6 weeks until 2 or 4 December 2024.

These are Consultations on:

FACTSHEETS

Given the scope and breadth of the changes the Government also published
10 Factsheets summarising the key changes and areas for consultation. The Factsheets cover:

1. Employment Rights Bill Overview
2. Unfair Dismissal
3. Fire and Rehire
4. Statutory Sick Pay
5. Trade Unions
6. Bereavement, Paternity and Unpaid Parental Leave
7. Zero hours contract
8. Fair Work Agency
9. Adult Social Care Negotiating Body

10. School Support Staff Negotiating Body

SUMMARY OF THE KEY CHANGES

Day 1 Right to Claim Unfair Dismissal:

At present in GB, employees need 2 year’s continuity of service to bring a claim for unfair dismissal. In Northern Ireland only 1 year’s continuous service is required. The Bill will introduce a Day 1 right to claim unfair dismissal in GB.

In a concession to the business community who raised concerns that Day 1 Rights will discourage employers from taking a chance on new employees, the Government has included a new statutory probationary period. The suggested period is 9-months which is subject to Consultation. The Consultation process will also flesh out how this new right will operate, what type of ‘lighter touch’ process will apply during the probationary period and what compensation will be available to employees.

Statutory Sick Pay (SSP):

In GB, the Government will remove both the 3-day waiting period and the lower earning threshold (of £123) before being entitled to SSP. This will mean that more workers, including those with lower incomes, will be able to SSP from the first day of the sickness.

On 21 October 2024, the Department of Work and Pensions (DWP) in GB launched a Consultation to consider what the percentage rate for those earning below the current flat rate of Statutory Sick Pay should be.

SSP is a devolved matter in Northern Ireland. This means that any decisions on changes to SSP in Northern Ireland (including whether to continue to align with the changes proposed in GB) are a matter for the Executive and NI Assembly.

Having said that historically Northern Ireland has maintained parity with the rest of the UK. On 30 October 2024, the Northern Ireland Department for Communities (who has responsibility for SSP) published a link to the DWP’s Consultation on its webpage and is actively encouraging Northern Ireland stakeholders to respond. This is perhaps a signal that similar changes to SSP will be made here.

To prepare for potential changes members could work with their payroll provider to calculate the possible extra cost and check that it will be able to adjust its systems as appropriate when the measures are implemented in GB and potentially NI. In addition, since the changes could potentially increase short-term absence in companies with no or limited company sick pay, you may want to review attendance management procedures, including triggers, and refresh manager training for handling frequent short-term absence.

Ending ‘Exploitative’ Zero-Hours Contracts

The Bill seeks to end the one-sided flexibility of certain ‘exploitative’ zero-hours contracts by providing that employers must make a Guaranteed Hours Offer to zero-hours workers and those with a ‘low’ number of guaranteed hours at the end of a specified reference period. This offer may need to be repeated at the end of each subsequent reference period.

The ‘Next Steps to Make Work Pay’ document indicates that the reference period, which is not currently defined, will be 12 weeks, and the definition of ‘low’ guaranteed hours is left for Regulations and will be subject to consultation. The offer of guaranteed hours, which may be a contract variation or a new contract, must reflect the number of hours that the individual regularly worked over the reference period and cannot be for a limited term contract, unless reasonable. The Bill allows for Regulations to go further and provide that the guaranteed hours offer must also reflect the pattern, days and times of day worked in the reference period. The worker will be able to agree, ignore or refuse the offer, but the offer must be made regardless.

As stated above the Consultation has been launched that considers whether to extend these measures to agency workers.

It is intended that where the employment is genuinely temporary, employers will not have to offer permanent contracts, and that workers on other types of contract who occasionally pick up overtime will not be affected.

The Bill contains lengthy and complicated provisions aimed at ensuring that workers get reasonable notice of the scheduling of a shift, as well as of changes and cancellations to shifts, with proportionate compensation for any shifts which are cancelled or curtailed at short notice. These provisions apply to zero-hours workers and those on minimum hours and those who do not have a set working pattern. There will be a presumption that notice is not reasonable, unless it is given a ‘specified time’ before the shift is due to start. Regulations will define the ‘specified time’. It also remains to be seen what type of reasons would be sufficient to counter the presumption that notice is not reasonable, where notice is shorter than the specified time.

To prepare for this change, it is worth reviewing your processes around scheduling rosters and shifts.

Proposals to ending exploitative Zero Hour Worker Contracts in Northern Ireland are also being considered with options being proposed are moving to a Banded Hour Contract, similar to that in operation in Republic of Ireland or moving to measures similar to GB.

Making Flexible Working the Default from Day One

The Bill amends the current GB provisions in place that extended the right to request flexible working in April 2024. The proposals in the Bill further extend that right by shifting the emphasis to a default right unless there are reasonable grounds for refusing it.

The eight statutory grounds for refusing a request will remain as will the compensation regime which is limited to 8 weeks pay. However, this reasonableness requirement is a higher threshold than under the current GB laws. In addition, employers will be required to explain, in writing to the employee, why their refusal is reasonable.

In Northern Ireland proposals to extend the right to flexible working are also being considered. However, as they stand these proposals are simply to level Northern Ireland up to the position in Great Britain following the changes that were implemented in April 2024. This includes making the right a Day 1 right, permitting two requests (and not one) in any 12 month period and no longer requiring the employee to explain what effect their request will have on the employer.

Positive Duty to Prevent Sexual Harassment

On 26 October 2024, a new positive duty was placed on employers in GB to take reasonable steps to prevent sexual harassment at work. The Bill will extend this duty so that employers will have to take all reasonable steps to prevent sexual harassment of their workers in the course of employment. See our previous article here

Currently there is ambiguity around the ability to bring a third-party harassment claim i.e. a claim brought by an employee alleging that they have been sexually harassed by a third party such as a client or customer who is not an employee of the Company. Although the Equality and Human Rights Commission takes the view that the sexual harassment preventative duty already covers third party harassment, this can only be enforced by the EHRC.

The Bill would give workers the right to claim compensation for third party harassment – without the requirement (that is currently the position in Northern Ireland) for the employer to be aware of two previous occasions of harassment. In addition, the Bill will extend what is a protected disclosures under whistleblowing legislation to include a disclosure that sexual harassment has occurred, is occurring or is likely to occur.

This is one area in which the law in Northern Ireland and GB differs significantly.

In Northern Ireland an employer is currently liable for third party sexual harassment if it knew that an employee has been harassed on grounds of sex in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening for a third time to the employee.

In Northern Ireland there are no similar proposals to introduce such a positive duty – however employers should take heed of the guidance as it may influence the NI Tribunals when assessing what constitutes reasonable steps to successfully defend against a discrimination case. In NI discrimination laws are the responsibility of the Executive Office, not the Department of Economy, and therefore this is an area that was not included in the Good Jobs Consultation.

Ending Fire & Rehire Practices

Much to the surprise of the business community, the Bill goes much further than anticipated. It effectively makes the use of dismissal and and re-engagement only possible if necessary for business viability where no genuine alternative exists.

The Bill will make it automatically unfair to dismiss an employee in order to vary their contract where the employee does not agree the variation, or to employ another person on varied terms to carry out substantially the same duties as the employee before the dismissal. The Government is of the view that current Statutory Code of Practice on Dismissal and Re-engagement, which came into force on 18 July 2024, does not go far enough.

The Bill sets out factors that a tribunal must consider when determining whether a dismissal is fair, including if there was any consultation with the employee and/or any consultation with a recognised union or other representative body. The Tribunal can also take into account if anything was offered to the employees in return for them agreeing to the variation.

This is an area that the Northern Ireland ‘Good Jobs Bill’ Consultation is also considering and it has been anticipated Northern Ireland would implement a Statutory Code of Practice on Dismissal and Re-engagement,. Time will tell whether the direction in GB paths the way for similar proposals here.

Strengthening provisions on Collective Redundancy Consultation

Statutory Collective Redundancy Consultation is currently triggered where an employer proposes 20 or more ‘redundancies’ (which includes dismissals and re-engagements to change terms) in a rolling 90-day period at one establishment.

The Bill removes the wording ‘at one establishment’, so employers with more than one site (but where the employer is the same legal entity) will have to count proposed redundancies across all sites in a 90 day period when assessing whether statutory collective consultation is triggered.

In Northern Ireland there are no similar proposals in the Good Jobs Bill. However, in our response to the Department of the Economy we made submissions asking for the current 90 day consultation period (that is required in NI when proposing to make redundancies of 100 or more) to be reduced to 45 days in line with Great Britain.

Changes to Family and Other Leave

The Bill introduces various enhancements to family and other leave including Day 1 rights to unpaid parental leave and paternity leave. The Bill also extends the entitlement to unpaid Bereavement Leave when anyone dies to whom they have a specified relationship. What constitutes a special relationship will be a matter for consultation.

The restriction on taking paternity leave following a period of shared parental leave will also be removed.

In its Next Steps Document, the GB Government has stated that it plans an overhaul and review of the whole parental leave system so we can expect more changes here.

In Northern Ireland, the ‘Good Jobs Bill’ Consultation proposes to introduce new rights reflecting those that were introduced in GB in 2024. In the main (with some small differences) the proposals will reflect those rights currently in place in GB before the changes provided for in this Bill.

Northern Ireland will therefore align to GB (before these further changes provided for in the Bill) on areas of:

Flexible Working
Carers Leave
Neonatal Care Leave & Pay
Extension to protection from Redundancy
Paternity Leave

Equality Action Plans

The Bill requires large employers to publish action plans to address Gender Pay Gaps and support staff going through the menopause. Regulations may prescribe the content of such plans, how frequently they should be published and the requirement for senior leadership approval. The Bill also introduces a new requirement for employers to identify the providers/employers of contract workers when publishing their gender pay reports.

In Northern Ireland, the Department for the Communities (who has responsibility for this area) has informed us that the legislation is in place that when enacted will require employers to publish information relating to the pay of employees for the purpose of showing whether there are differences in the pay of male and female employees, i.e. the Gender Pay Gap. The way forward on how this legislation is to be enacted is currently being considered and will be announced in due course.

When enacted the Northern Ireland provisions will require reporting on disability and ethnicity of workers within each pay band. Precisely what statistics must be calculated and within which “pay bands” is still unknown at this point and remains to be clarified by the eventual Regulations.

Trade Unions and Industrial Action

Strengthening the trade union movement is one of the key aims of both the GB Government and Department of Economy in Northern Ireland. However, the laws governing trade unions are different in GB and Northern Ireland. This is because Northern Ireland never implemented counterpart laws to the Trade Union Act 2016 in place in GB or sought to impose restrictions on striking which were introduced in GB under the previous Conservative Government.

Many of the GB proposals are around repealing the Trade Union Act 2016 and subsequent laws that were introduced under the previous Conservative Government. Essentially this will bring the position back in GB to the current position in Northern Ireland. Some of the changes in GB include simplifying the ballot and notice requirements for industrial action and the process for TU recognition. Both jurisdictions are also considering permitting electronic ballots.

In both jurisdictions there are proposals to make it easier for trade unions to access the workplace but the detail may differ as Northern Ireland’s proposals are not as well formed as GB’s. The GB Bill requires employers to inform their workers that they have the right to join a trade union and makes it easier for trade unions to access the workplace. There are detailed provisions about negotiating access agreements, which involve the Central Arbitration Committee (CAC), who will also be responsible for dealing with complaints about breaches of access agreements. The equivalent to the CAC in Northern Ireland is the Industrial Court.

The Bill also bolsters rights to time off and access to facilities are strengthened for TU officials and learning representatives, and TU equality representatives who have met specific training conditions.

We do recommend that you review your industrial relations strategy, and move towards a proactive approach; for example, consider the introduction of works councils, employee forums etc. to improve workforce engagement and give staff a collective voice. You may also want to support your managers on working more successfully with trade unions, for example training them on negotiation skills and managing conflict.

New Single Enforcement Body, the Fair Work Agency

The Bill provides for a new single enforcement body, the Fair Work Agency, to strengthen enforcement of workplace rights. This will bring together existing enforcement functions, including with regard to the minimum wage, statutory sick pay, the employment tribunal penalty scheme and labour exploitation and modern slavery, as well as gaining a remit over the enforcement of holiday pay.

There are no similar proposals in Northern Ireland at present.

Looking Ahead

The Consultations on the GB Bill is ongoing, with critical details and operational mechanisms being scoped out. While some rights will require primary and secondary legislation, others could be implemented more quickly. It is predicted that the new unfair dismissal rights will not come into force until October 2026.

Employment law in Northern Ireland is devolved, with the Department for Economy currently considering responses to the NI Good Jobs / Employment Rights Bill. While there are some similarities to GB proposals, Great Britain is undoubtedly leading the way and will likely influence policy making and direction in Northern Ireland. The rapid changes in the employment landscape highlight the importance of staying informed and prepared for future developments.

We will of course keep you updated on any further developments.