Amy: Hello and welcome to the Employment Law Focus podcast. I'm Amy Stokes. Charlie: And I'm Charlie Ray Amy: and we're both employment law partners at TLT and today we're going to be discussing the Employment Rights Bill and well all 150 pages of it, well not quite but what we've done is we have discussed amongst ourselves Charlie and I and pulled out our top 10 takeaways from it. By way of background, this was introduced to Parliament on the 10th of October and is the first phase of delivering the government's plan to make work pay. It brings in 28 individual employment law reforms. And the bill is a wish list of reforms, and it builds in some of the labour manifesto but a watered down version so it's not quite set in stone. Despite the headlines in the papers, it's a while before any of these changes are going to happen. Much of the details are going to be provided via regulations which won't be passed until consultation with stakeholders has concluded. Four of those consultations were very quickly turned around and have actually already started. Those include on zero hours contracts and their application to agency workers, beefing up the remedies for collective redundancy consultation, all the updates to trade union legislation and also statutory sick pay. The government doesn't expect to start consultation however for the rest of the reforms until 2025, with the result that most reforms in the bill will not take place until we anticipate at least 2026, although there's been no commitment on that just yet. The bills also got to go through both houses of parliament before it gains royal assent and therefore may be changed along the way after the consultations as well. So the bottom line is really that the proposals in the bill might well change and employers are going to have plenty of time to feed into the proposals and to prepare for them. What Charlie and I have done to prepare for this podcast today is that we've picked out what we think are the most interesting elements of the bill, the reforms to the bill, primarily to employers. And we're going to run through them, not in the order of importance, just kind of in a more general order, just to give you a flavour of what they are. So, we'll talk through the background to them, the detail of the reforms, to give you a bit of an explainer on those. And then we're going to give you some of our insights from practice about what we think the real impact of those are going to be. So, Charlie, do you want to kick us off with your first one? Charlie: Yeah, we're going to start with probably what's been the main headline grabber from the bill, which is the proposal to remove the unfair dismissal qualifying period. Now, as we know, at the moment, we've had for some time a two -year qualifying period to be able to claim ordinary unfair dismissal. That doesn't take into account automatic unfair dismissals like whistleblowing, for example, where you don't need the two-year service, but for most unfair dismissal claims, two years service is required. So the idea is that it's going to become a day one right, and that so long as you started work from day one, you will have the right to claim unfair dismissal. The government are proposing to consult on introducing a new statutory probation period. So, the idea is that during that probation period, an employee could be dismissed using a lighter touch process, where if the dismissal is because of capability, or conduct, or contravention of illegal duty, or potentially for some other substantial reason, which are all reasons that we're familiar with now, that that would be a valid reason for an employer to terminate at the end of this probation period. We need some detail on this, obviously, and one suggestion is that a redundancy dismissal wouldn't be subject to this lighter touch dismissal as a result of the statutory probation period. So it will be interesting to see how that one plays out. The suggestion is that the government's preference is to have a nine -month probation period in this so -called initial period of employment and I think the indication is that they would expect an employer to at least hold a meeting with the employee to explain the concerns about say their performance if that's the reason before making a decision to dismiss. So, it's going to be interesting to see how the government will develop that. Amy: Yeah it's really interesting actually Charlie, I think that there's going to be the consultation on that's going to bring out some interesting points. But actually, it sounds like it's going to have a really big impact on employers. What do you think in practice that's really going to be? Charlie: Certainly one of the implications is likely to be that more litigation may follow as a result of widening out the net to who it covers. I saw a statistic that suggests that this will grant unfair dismissal rights to another 9 million employees. So, straight away, the prospect of litigation is going to be increased. There's a question that I've seen floated as to how long an employer would need to be able to make a decision about whether an employee should stay in the role beyond this initial employment period. And nine months, is that long enough? I think many employers would probably be hard pressed to think that nine months isn't long enough to make a decision about whether an employee is suitable for their role. What I think it will be in practice is that employers are going to have to tighten up their processes. I mean, many employers at the minute do follow quite good probationary review processes where issues that might lead to an employee failing their probation period are flagged in good time and discussed, and therefore no surprise to the employee if they fail their probation period as a result of it. But not all employers do that. And so, I think if you're going to take advantage of this new statutory probation period, it's going to mean employers have to tighten up their processes in handling probation reviews and probation decisions. I think it's also going to mean employers are going to need to ensure that they follow their redundancy processes in all cases because of the suggestion that redundancies wouldn't be part of this probationary review dismissal option. So, yeah, I think it's going to be quite a big change for employers this, if it comes in the way suggested. So, yeah, keep your eye on that one. Amy: Yeah, and plenty of time to plan as well. I think that's a key point. As you say, some employers are already utilizing probation periods pretty well. So actually looking at that and expanding that practice more widely, I think is important. So, Thanks, Charlie. So the first one from me moving on is the very hotly anticipated reform in relation to fire and rehire. It gets all the headlines that the way that it's been described. It's hit the press enormously given the large scale and perceived abuse of this by some employers. And so just to explain, firing rehire is essentially a tool, and actually in some cases a very useful tool, that employers use to change terms and conditions in the event that employees won't agree to those through a consultation process. Importantly, the employees retain their continuous service, so that's the rehire piece. It's not just fire, it's rehiring the retain that continuous service. And it's often after a consultation period with unions or staff reps, and in my experience, and I'm sure yours as well, Charlie, it's very much used as a last resort. It was to be banned initially but then Labour realised that if they only addressed fire and rehire businesses are simply just going to fire employees and then rehire different employees which is what P &O Ferries did and that was all over the press as well. What the bill proposes is that dismissals for refusing to agree to a variation will be automatically unfair where either the employee or another employee will be re -employed or employed to carry out substantially the same work. An exception there is going to be where essentially a business is on its knees and about to fall over. And so to use the proper term for that, it's where the employee can show evidence of financial difficulties, which or carry on the activities of the business and that in all of the circumstances, it could not avoid the need to make the variation. Charlie: Yeah, I mean, what do we make of that defence, Amy? Is that going to be a way, do we think, of keeping in the right to fire and rehire through the back door or is it going to be difficult to meet that defence? What do we think? Amy: Yeah, it's an interesting one. So, we thought that this would be a complete ban on it, and they obviously introduced that defence. And the financial difficulties defence seems quite a hard one to run, given that an employer essentially needs to show that in all of the circumstances, the employer could not reasonably have avoided the need to make that variation. So they're going to need to be in some serious financial difficulty to satisfy that test, so in liquidation or in solvency. So I think it's going to be really narrow, but I think the important kind of take away from this is, as I mentioned at the beginning, this does fall short of a total ban on fire and re-hire hire, which is what Labour had initially committed to do. However, it may as well be a ban with the enormously high bar that's been set to that exception. As we say with all of these, the devil's going to be in the detail. And I do think that these provisions will be contested by some employees in the consultation, there certainly needs to be a bit more clarification given on that financial difficulties, defence as well. Employers are undoubtedly going to have to produce accounts and all that kind of stuff as well, which would be quite interesting. Charlie: Yeah, no, it cer
