Over the past month, the government has launched seven consultations on amendments to the Employment Rights Act 2025 (“ERA”), closing on various dates in April and May.
Two consultations address trade union reforms, covering electronic balloting practices, updates to the recognition Code of Practice and enhanced protection against detriment for workers involved in industrial action. Others focus on sector‑specific changes, including modernising the agency framework and strengthening tipping legislation.
Three consultations, however, concern changes of broad relevance coming into force in 2027. Although the proposals in the consultations are not set in stone, they give us more information about important measures in the ERA and an idea of the government’s thinking.
The three consultations
In January 2027, the ERA will make it automatically unfair to dismiss an employee who refuses a “restricted variation” to their contract, save for very limited exceptions. The consultation focuses on which changes to shift patterns, expenses and benefits (excluding pension) should fall outside this protection.
The government’s provisional view is to exclude all changes to expenses and relevant benefits, but to include “extreme” shift changes— such as switching day workers to night shifts. More minor or occasional shift adjustments would likely fall outside the regime.
The ERA will also change the law around statutory flexible working requests in 2027 so that employers:
- Can only reject a request where that is reasonable;
- Must explain why their decision to reject a request is reasonable; and
- Must follow a mandatory consultation process before rejecting a request.
The consultation proposes a structured process which draws on the Acas non-statutory guidance and will be familiar to many employers. It includes a meeting with the decision maker (ideally within 6 weeks to allow time for follow up), exploring alternatives, and written confirmation of the outcome of the meeting and the request. The government has also proposed that the decision maker must clarify whether the employee would like the request to be considered as a reasonable adjustment under the Equality Act 2010. Overall, the proposals hint at a more rigid regime with stronger push towards compromise.
In 2027, the ERA will introduce a new organisation-wide redundancy threshold which will sit alongside the current single establishment test. If the organisation-wide threshold is triggered, collective consultation and notification to the Secretary of State will be required—even if fewer than 20 redundancies are proposed at any single site in 90 days or less.
The consultation sets out four possible models:
- a fixed number of redundancies across the organisation;
- a percentage of the total workforce being proposed as redundant;
- different fixed number thresholds based on employer size; or
- a combined fixed/percentage model (e.g. if the employer has X employees, collective consultation obligations apply whenever Y% of employees across the organisation are proposed redundant).
Each of these suggestions has its benefits and drawbacks in practice – so there is no perfect solution. The government’s preferred option is to use a single fixed number to set the organisation-wide threshold, which should not be set lower than 250 redundancies or higher than 1000 redundancies. However, we may see tiered fixed number thresholds based on employer size, depending upon the outcome of the consultation. Responses to this consultation will shape implementing legislation.
All these proposals will need approval from Parliament before taking effect. The government is releasing the ERA consultations in stages, with lots more on the horizon. These include consultations on trade union rights of access and zero hours contracts, which we will be looking out for.
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