Monthly Bulletin – January 2025 – Practical Perspectives

Employment Rights Bill: What’s Changing?

An Amendment Paper on the Employment Rights Bill was published at the end of November. Key proposed changes include the following proposals from the Government:

• Extended time limits for tribunal claims: The addition of a new Schedule which will have the effect of extending the time limit for bringing all tribunal claims from 3 months to 6 months.
• More information on the ‘Initial Period of Employment’ (IPE): The draft Bill makes unfair dismissal a Day One right but leaves some wriggle room by allowing for different rules to apply during what is termed the ‘initial period of employment’ (IPE). There was nothing in the original draft Bill about how long the IPE might be, although the accompanying ‘Next Steps’ document indicated it might be 9 months. A provision is now included stating that the IPE will be not less than 3 months and not more than 9 months.
• Guaranteed hours: Various changes to the provisions relating to guaranteed hours which don’t appear to make any wholesale change to the complex way in which these provisions are currently structured. 
• Shift cancellation payments: Changes to the rules on payments when shifts are cancelled, moved or curtailed at short notice, include giving the tribunal discretion on whether to make an award where an employer has failed to make a payment required in such circumstances, and further discretion as to what that payment should be, taking account of the ‘seriousness of the matter’.
• Menstrual health added to equality planning: Menstrual problems and disorders are set to become a defined aspect of “matters related to gender equality.” This means employers may need to include them in equality action plans under separate regulations.
• Trade union access clarified: Clarification that the right of trade unions to access workplaces will not extend to any workplace which is also a dwelling.

Additional changes have been proposed by MPs:

• No more gagging on harassment: A proposed clause would void any non-disclosure agreement (NDA) that tried to stop workers from reporting harassment, including sexual harassment. 
• Banning substitution clauses: These clauses allow workers to send someone else to do their job. If this change passes, they’ll be off the table in employment, worker, or dependent contractor contracts.

It remains to be seen how many of these changes will ‘stick’ as the Bill continues its progress through the House of Commons. The provisions relating to extension of time limits are likely to be here to stay (given they occupy an entire Schedule and reflect one of the Government’s election pledges). The Amendment Paper can be accessed here.

Government announces new rates for family leave pay and statutory sick pay from 6^th April 2025

The statutory rates of pay applicable to the various different types of family leave which can be taken, together with the amount payable as statutory sick pay, are updated on an annual basis. The new rates, which will apply from 6^th April 2025, have now been published by the Government. The new rates are as follows:

	Old Rate	New Rate
Statutory maternity pay	£184.03 per week	£187.18 per week
Statutory paternity pay	£184.03 per week	£187.18 per week
Statutory shared parental pay	£184.03 per week	£187.18 per week
Statutory adoption pay	£184.03 per week	£187.18 per week
Statutory parental bereavement pay	£184.03 per week	£187.18 per week
Statutory sick pay	£116.75 per week	£118.75 per week

These figures will be superseded by any higher figures which an employer might offer either on a discretionary basis or as part of a contractual obligation. 

The average gross weekly earnings required to qualify for the various forms of family leave pay will increase from £123.00 or more per week, to 125.00 or more per week from 6^th April 2025. The figures stated are the maximum payable (under statute) per week. If an employee earns less per week than the rate stated, then they should receive the lower amount equating to their actual earnings. 

Modern Slavery: Key employer obligations

Under the Modern Slavery Act 2015, UK businesses have specific obligations to help combat modern slavery. This legislation applies primarily to businesses with a turnover of £36 million or more annually. These larger companies are legally required to publish an annual statement detailing the steps they have taken to ensure that modern slavery and human trafficking are not present in their operations or supply chains.

The statement, often referred to as a Modern Slavery Statement, must be approved at the highest levels of the organisation (such as the board of directors) and must be made publicly available on the business’s website. 

The Modern Slavery Act recommends that the following six areas are covered in any statement:

1. Organisation structure and supply chains: Companies must outline their operations and supply chains, describing how they function and where potential vulnerabilities to modern slavery might exist.
2. Policies in relation to slavery and human trafficking: The statement should highlight the internal policies in place to prevent and address modern slavery, such as supplier codes of conduct, ethical trading policies, and whistleblowing mechanisms.
3. Due diligence processes: used to vet suppliers and job applicants.
4. Risk assessment and management: Businesses need to assess where risks of modern slavery are highest, both in their direct operations and in their supply chains.
5. Key performance indicators to measure effectiveness of steps being taken
6. Training on modern slavery and trafficking: Employers are expected to describe the training provided to staff on modern slavery.

The House of Lords Modern Slavery Act 2015 Committee recently published a report which proposed the introduction of financial penalties for non-compliance with the requirement to publish a statement and a suggestion that the category of businesses obliged to produce a statement are widened.

Currently the Secretary of State is able to enforce the duty to prepare a slavery and human trafficking statement in civil proceedings by way of an injunction. If the organisation fails to comply with the injunction, it will be in contempt of a court order and will be liable to an unlimited fine.Aside from the statutory sanctions, a failure to produce and publish a statement could lead to a damage in reputation and brand. A good example of the reputational impact of modern slavery issues can be found in the recent case of a branch of McDonald’s in Cambridgeshire, which was found to have employed 16 victims of modern slavery. 

Top tips for avoiding common pitfalls with job adverts

Job adverts are crucial for attracting the right candidates, but poorly crafted ads can limit your talent pool and increase the risk of discrimination claims. Here are some top tips for getting it right:

1. Start with a clear job description

Before you write the advert, ensure you fully understand the role and its requirements. Focus on the essential skills and experience. This ensures your advert reaches a broader, more diverse audience and doesn’t exclude potential candidates unnecessarily.

2. What to include

Your advert should be clear and concise, using neutral, inclusive language. Clearly outline the qualifications, skills, and experience needed. Avoid vague terms like “appropriate qualifications” which may confuse or discourage applicants, particularly neurodivergent candidates.

Remember to mention the job location, salary (or range), and any flexible working options. Include a brief introduction to your company and specify how candidates should apply. Make sure your advert complies with advertising laws, being truthful and accurate, especially about salary and benefits.

3. Avoid discriminatory language

The Equality Act 2010 prohibits discrimination in job adverts. Be careful not to include criteria that could indirectly discriminate against certain groups, such as requiring “10 years of continuous experience” which could disadvantage women or younger candidates.

Avoid unnecessary skills or personality traits. For example, instead of asking for “excellent communication skills,” specify the practical tasks involved, like “delivering presentations to clients.” Using gender-neutral terms like “waiting staff” rather than “waiter” can also help prevent discrimination.

4. The role of Genuine Occupational Requirements (GOR)

In some cases, it is legal to specify certain characteristics if they are essential for the job, known as GORs. For example, a public gym may legally require same-sex attendants in changing rooms to protect user privacy.

5. Positive action

Employers can use positive action to address under-representation by encouraging applications from specific groups, but they cannot limit the job to these groups unless it is justified under GOR.

By crafting job adverts thoughtfully, you increase your chances of attracting the best talent while avoiding legal risks.

Uplifts for failure to follow fire and rehire code of practice to apply to protective awards from January 2025 

When the Code of Practice on Dismissal and Re-engagement came into force in July this year, a notable omission from the list of claims to which uplifts could be applied for non-compliance was protective awards. Protective awards are awards of (currently) up to 90 days’ gross pay (uncapped) which can be made by tribunals where an employer has failed to comply with its collective consultation obligations in a redundancy situation involving 20 or more employees at any establishment.

The The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment of Schedule A2) Order 2024 has added failure to follow collective consultation requirements, under s189 Trade Union and Labour Relations (Consolidation) Act 1992, to the list of claims where an adjustment to compensation of up to 25% can be made for failure to follow a relevant code of practice. The Order comes into force on 20 January 2025.

The upshot of this change for employers is that, from 20 January 2025, when assessing the financial risk associated with a failure to comply with collective consultation obligations in a redundancy situation, ‘90 days gross pay’ per employee will no longer be the worst-case scenario. The likelihood that the statutory code of practice on dismissal and re-engagement has also been breached will also need to be considered – potentially adding up to 25% to the previous worst-case scenario figures. 

This change also needs to be placed in context of the other changes which the government are proposing in this area. The Employment Rights Bill proposes to bring more redundancy situations within the ambit of collective consultation by removing the concept of ‘establishment’ – so that the number of proposed redundancies need to be calculated across the business and not just on a site-by-site basis, when looking at whether 20 or more are proposed. The government has also recently completed a public consultation seeking views on increasing the level of protective awards, either to 180 days or by removing the cap on the protective award entirely. The stakes on collective consultation are getting higher and are likely to get higher still in the coming months and years.