Four groups of changes to ERB to watch out for at Lords’ Report Stage

The Government has tabled some important amendments to the Employment Rights Bill in advance of the House of Lords Report Stage, which starts on 14 July.

The most significant amendments can be divided into four groups, as follows:

New restrictions on non-disclosure agreements (NDAs)

The Government has responded to pressure in the House of Commons and elsewhere and has now tabled amendments which would introduce new restrictions on the use of non-disclosure agreements. When made between employers and workers they would be void (ie of no legal effect) if they purport to preclude the worker from making an allegation or disclosing information about “relevant” harassment or discrimination. 

Broadly speaking, all workplace harassment and discrimination which contravenes the Equality Act would be relevant for these purposes, though the new provisions make it possible for regulations to provide for exceptions from this general rule. The amendments also include a power to extend similar protection to individuals who are not workers.

You can read more details about these proposals in the Government’s press release here.

Extension of parental bereavement leave

As widely expected, the Government has tabled an amendment to extend statutory parental bereavement leave to parents who suffer a loss of a pregnancy before 24 weeks.

More information about this change, and the reasons behind it, can be found in this press release.

Re-modelling fire and re-hire provisions

New restrictions on fire and re-hire have been included in the Bill since it was first introduced in the House of Commons last year, but the Government has now thought again about some of the detail. Changes to the original regime now tabled include:

• Limiting the new rules so that they apply only to “restricted variations” rather than any kind of variation. That means that if a variation is not on the list of restricted variations, it will no longer be automatically unfair to dismiss an employee for failing to agree to it. As things stand, a variation to the place of work is not on the list, so it would not be automatically unfair to dismiss an employee who refuses to agree to re-location.
• If the variation is not restricted, the ordinary unfair dismissal rules would apply, but the Government has introduced a list of factors that employment tribunals must consider when deciding on the fairness of such a dismissal.
• The original fire and re-hire proposals would not have been triggered if the dismissed employees were replaced with non-employees (eg agency workers). The Government has now plugged this loophole.
• The measures as first introduced included a general exemption which applied where the employer was facing severe financial difficulties. The wording of this exemption was not really apposite for the public sector, so a tailor-made exemption has been created for the public sector generally, with more specific provisions applying to local authorities.

Zero-hours arrangements  

The complex new rules regulating zero-hours and low hours arrangements in the Bill have already been amended significantly, including at earlier stages of its progress through the House of Lords. The latest set of highly technical amendments include some additional refinements of these provisions. 

One potentially significant change involves amending the power to make regulations about guaranteed hours offers to ensure that the Secretary of State has regard to “the desirability of preventing this Chapter from having a significant adverse effect on employers who are dealing with exceptional circumstances”.

There are also some further additions to the provisions relating to agency workers, including detailed requirements in relation to the terms relating to pay that must be included in any guaranteed hours offer.