The Employment Rights Bill has promised significant reform to the law, and has dominated discussions across the employment legal landscape ever since it was first announced.
With headline changes including the granting of the day 1 right to unfair dismissal and the banning of ‘fire and re-hire’, the Act is set to shake things up.
The recent release of a “roadmap” for implementation (see implementing-the-employment-rights-bill-the-government-releases-a-delivery-plan-for-change), we have now a clearer picture of when the changes will come into force.
The Government has also revealed a list of further amendments to the Bill which include some new reforms not previously announced. These amendments, which cover key areas like non-disclosure agreements (NDAs) and changes to whistleblowing laws, will have significant effects.
In light of these new changes, here’s our overview of the further amendments to help employers and employees alike get to grips with what is to come.
1. Changes to the Ban on ‘Fire and Re-Hire’
Under original proposals for the Bill, any dismissal would be automatically unfair if the principal reason for dismissal was either:
Dismissing and offering to rehire on new terms was only to be allowed as part of a restructuring process, where there was genuinely no alternative to keep the employer’s operation viable.
Under new amendments, this ban appears to be softened. It seems the ban on ‘fire and re-hire’ will now only cover ‘restricted variations’, covering changes to key clauses such as pay, pension, hours of work, holiday entitlement and other terms to be identified by the Secretary of State.
This significant change to what was initially suggested provides some relief for employers looking to vary less fundamental clauses.
2. Banning of Non-Disclosure Agreements
Among further amendments to the Employment Rights Bill, the Government has announced the banning of the use of NDAs; documents that seek to enforce the confidentiality of information between parties, for example to prevent workers from making public allegations or disclosures about harassment or discrimination (as defined within the Equality Act 2010). This may, of course, make it more difficult for some claims to settle if employers cannot limit or prevent what enters the public domain.
Justin Madders, Minister for Employment Rights Competition and Markets, has said, “the misuse of NDA’s to silence victims…is an appalling practice” and hopes the changes to the law will “give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with”.
While NDAs are often used to protect legitimate business interests and confidentiality, they are sometimes misused by employers to cover up misconduct.
The use of NDAs to cover up harassment has seen media attention lately following recent high-profile cases where confidentiality clauses were used by employers to silence victims of sexual abuse. The changes to the law will make it clear that NDAs cannot be used to prevent victims from reporting crimes or from speaking to authorities.
For employers, this will prompt the need to review, and potentially amend, the wording of any confidentiality clauses in contracts, settlement agreements and policies. Clauses which attempt to prohibit employees from making disclosures will be unenforceable, and could open employers up to litigation and reputational risks.
Other changes were also proposed surrounding whistleblowing and zero-hours contracts. These changes included:
While these amendments have been suggested, they currently lack Government backing, so it is unlikely they will pass.
The further changes to the Bill have the potential to cause confusion. But, by staying on top of developments, as an individual or business, you can ensure that you understand how the amendments will affect you.
For businesses, undertaking a review of your current policies is a great way to ensure your organisation stays compliant; and employers and employees alike are protected.
For employees, these changes may significantly expand your rights in the workplace. If you believe you’ve been dismissed unfairly, or pressured into silence about misconduct, you may have new legal protections under the amended Bill.
Here at Whitehead Monckton, our Employment Law team is fully up-to-date on this rapidly developing area of Employment Law, and is ideally placed to help you navigate this transition period.
Whether helping with policy reviews or providing you with legal support so you understand your position in light of the new changes, our expert team has years of experience in dealing with such matters across many sectors including:
Working alongside HR consultancy experts Eclipse HR also ensures that, should you need HR advice, the integration is seamless, and the support offered is of the same high quality.
For support or guidance around these forthcoming changes, or to discuss any other employment related matter, get in touch.
