THE EZHR WEEKLY UPDATE 25th September 2023

In this week’s EZHR update, we talk all things….

✅ Incoming 0 hour worker changes  

✅ Increase in sickness

✅ A deep dive on the employment law changes proposed by Labour

0 Hour Contracts

The Workers (Predictable Terms and Conditions) Bill will become the law, this will mean that employees who do not work on predictable working hours can request more predictable working hours.

This means that if someone’s working pattern lacks certainty in terms of the hours they work or the times they work, or if it is a fixed-term contract for fewer than 12 months, they can make a formal application to change their working pattern to make it more predictable.

Following this request, their employer will be required to notify them of its decision within one month.

ACAS are now working on a draft code of practice and expect this to be rolled out in 2024.

Increase in Sickness

YouGov have confirmed that over a quarter of employers shave seen an increase in sickness in the last year. There are likely to a be a number of reasons for this, the man being that with more people being required to work in the office, some or part of the week, the ability to mask absence by working from home is less likely.

If you are struggling with absence, we would advise that early engagement assists with keeping people on track.

But it is important that issues are taken seriously and encourage your managers deal with the causes of absence such as work-related stress or workers struggling to balance work and caring responsibilities.

Labour’s plans for Employment Law

Grab a brew, and maybe a biscuit, as we take you through the details of what Labour confirmed is likely to happen if they are elected at the next general election.

At this year’s TUC congress that the confirmed that they bring in the Employment Rights Bill within 100 days of getting into government.

The finer detail of what this means has yet to be confirmed but we’re getting a good sense of where this will generally land, and this will include:

·       Allowing “workers” to be included as part of collective bargaining agreements and the ability to raise a claim not to be unfairly dismissed.

·       Implementing digital ballots for trade union votes

·       Rolling out a fair pair agreement in social care

·       The right to make an unfair dismissal claim on day one of employment

·       Extending the period in which employees can raises a tribunal claim, this is anticipated to be six months rather than three

·       Removing limits on unfair dismissal compensation

·       Ban on zero hour contracts

·       Removing the right for employers to fire and rehire

·       Family-friendly rights from day one

·       Sick pay for lower earners on day one

The details of this have been out there for some time and can be found in Labours 2021 Green Paper https://labour.org.uk/wp-content/uploads/2022/10/New-Deal-for-Working-People-Green-Paper.pdf  While some of the terms in here are a pretty significant shift, there are a number of things (zero hours contracts, flexible working) where there is already some shift in the current landscape. Certainly the implementation of unfair dismissal claims from day one will have significant impact for employers.

For what we can glean from the Green paper there is a some more detail on some other pieces found within the paper

Labour aims to end what it describes as “bogus self-employment” by preventing “unscrupulous” employers falsely putting individuals into a category with fewer rights “undercutting good employers”. The proposals included in the Green Paper include:

• creating a single status of “worker” for all but the “genuinely self-employed”; and

• ensuring all workers, regardless of sector, wage or contract type, will be afforded the same basic rights and protections (including sick pay, holiday pay, parental leave, protection against unfair dismissal).

Labour’s proposals in relation to zero-hour contracts are aimed at ending “one sided flexibility”. The proliferation of zero hour contracts can’t be underestimated with over 3% of the working population now employed on this type of contract. To address the concerns the proposals include:

• banning zero-hour contracts and contracts without a minimum number of guaranteed hours;

• ensuring anyone working regular hours for 12 weeks or more will gain a right to a regular contract to reflect the hours normally worked; and

• ensuring all workers get reasonable notice of any change in shifts, with wages for any shifts cancelled last minute without appropriate notice.

Labour proposes to outlaw the practice of firing and re-hiring. This term describes a practice of changing employment terms by way of dismissal and re-engagement, typically in situations where it is impossible to obtain employee or trade union consent to the changes. The Green Paper proposes three changes to give effect to this:

·       improving information and consultation procedures;

·       reviewing notice and ballot requirements on trade union activity;

·       and adapting unfair dismissal and redundancy procedures.

The questions is what does this mean, Labour have taken a fairly strong approach to setting out their  plans and if Labour do win the election is safe to say things will change. That said even if they don’t win it is possible the next government may adopt some of these elements and employers will need to change their approach to recruitment, performance management and dismissal by:

• Taking greater care in making recruitment decisions, including greater due diligence into prospective hires.

• Making greater use of probationary periods for new recruits. If Labour adopts a similar approach to some other jurisdictions, terminating employment at the end of a probation period will be safer, despite day one protection. In the Netherlands, for example, the right to protection from unfair dismissal is available only after the probation period has been passed. In any event, justifying terminating for failing to pass a probationary period is likely to be easier than after its expiry.

• Introducing more rigorous performance management to support capability dismissals from day one of employment.

• Working harder to combat bullying and other poor behaviour at work (where the costs from a successful constructive unfair dismissal claim would be higher).

• Considering alternatives to dismissal, including providing more training and support to overcome perceived shortcomings.

• Adhering more closely to fair procedures and going through formal processes before dismissal to be in a stronger position in negotiations (or to defend any claim if settlement negotiations fail). Currently, in circumstances where employers have not followed a formal process before dismissal, even employees with over two years’ service often have little alternative in practice than to accept an employer’s offer of settlement in light of capped unfair dismissal compensation, the unrecoverable costs of bringing a claim, the delays before claims reach a hearing and the unpredictability of the hearing outcome.

• Reducing the length of notice periods given by the employer to the employee (these notice periods may become shorter than the notice period given by the employee – there is no legal reason why they need to be the same, this is merely convention)

• Making larger settlement offers to reflect the larger possible pay outs at tribunal.

If you have any questions on this issue please don't hesitate to contact us at info@ezhr.uk or 0161 843 5678.