The headline amendments include:
Non-disclosure agreements ("NDAs")
NDAs used by employers against workers will be void if attempting to prevent the worker from making allegations or a disclosure of information relating to discrimination or harassment. This will include NDAs in settlement agreements. For further information please see - Ban on controversial NDAs silencing abuse - GOV.UK
Bereavement leave
Families who experience pregnancy loss before 24 weeks will be entitled to protected bereavement leave. For further information please see - Employment Rights Bill to increase bereavement leave for families who face pregnancy loss - GOV.UK
Fire and rehire
The government are proposing to row back on a full ban on fire and rehire. Under the latest proposals, the ban on fire and rehire will be limited to "restricted variations". Restricted variations include changes in relation to pay, hours, holidays, pensions and any other variation specified in regulations made by the Secretary of State. Restricted variations also includes a term in a contract of employment enabling the employer to make any variation (a variation clause). Presumably existing variation clauses will still be valid. This means that any variation which does not fall within this new definition will not be prohibited.
Redundancy – replacement of employees with people who are not employees
A new right has been inserted into the Bill stating that an employee is unfairly dismissed if the reason for the dismissal is to enable the employer to replace the employee with an individual who is not an employee of the employer. Such a dismissal will be automatically unfair providing the individual is carrying out the same or substantially the same activities, as the employee and the employee's dismissal is not wholly or mainly attributable to the fact that the requirements of the employer's business have ceased or diminished or are expected to cease or diminish.
Whistleblowing and zero hours contracts
Significant amendments have been proposed to the mechanics of the whistleblowing and zero hours contracts frameworks, however it is unclear whether these proposals are backed by the government and so it is questionable whether they will be taken forward.
Comment
The new legislation sets out the biggest change to employment law in a generation. It is slightly unusual to see such an extensive list of amendments at this stage. It is crucial for employers to keep on top of the developments as they evolve and to engage in the consultation processes as and when they are launched.
However, there are still a number of proactive steps which employers can take now to help ensure they navigate the changes in a positive way – from reviewing contracts, policies and procedures, to carrying out workforce audits. For more information on key action points please see our Legal Update.
Fostering a positive workplace culture should be a top priority for employers. We have already seen the introduction of the duty on employers to prevent sexual harassment in the workplace and the Bill promises further regulations on harassment (read more about the changes here). The proposed NDA amendment, which has been advocated for quite some time, underscores the necessity for employers to focus on addressing standards of behaviour.
For assistance in preparing for the changes under the Bill please do not hesitate to get in touch.
