The Employment Rights Bill – What It Means for Local Authorities

By Lorna Wells LLM FCIPD Principal Consultant HR

The Employment Rights Bill continues to make its way to become an Act of parliament, and you will have already seen many articles and opinions about the proposed legislation. Currently it is sitting at the Report Stage in the House of Commons and the Bill still needs to have one further Commons reading allowing another round of debate on the content before being passed to the House of Lords.

Extensive feedback has already been gathered, legal experts have provided written and oral evidence to a Parliamentary Committee and there has been widespread consultation on various parts of the Bill. At WME we have actively engaged in consultations, ensuring that the impact on local government—particularly in terms of implementation costs and operational challenges, as outlined below, is fully considered.

With further revisions anticipated, the question remains: 

How can local authorities proactively prepare for these upcoming changes? Now is the time for leaders to stay informed, assess potential risks, and ensure their organisations remain compliant and adaptable.

What are some of the key provisions that will come into force when the Bill becomes and Act?

• Removal of the three “waiting days” for the purposes of SSP
• Employer liability for third party harassment and the duty to take “all reasonable steps” to prevent sexual harassment.
• Removal of thresholds for industrial action ballots (may be implemented shortly after Royal Assent but will not require further Regulations)
• Removal of the need for redundancies to be “at one establishment” in relation to collective redundancy consultation requirements
• Enhancements to the rights around requesting flexible working.
• Employment Tribunal time limits increasing to six months.

Although the removal of the qualifying period for claiming unfair dismissal is also effective with the Royal Assent of the Bill, how this may work in context with differences in an initial period of employment (a probationary period) is subject to Regulations, so will not be ready to implement without the accompanying detail.

Key provisions where new Regulations are needed before implementation.

The complexity of some changes brings the need for genuine consultation and WME will continue to respond to any such government launched consultations. Here are a few areas where further Regulations are required to provide detail on how rights will be applied:

• Bereavement leave – replacing the right to parental bereavement leave Regulations detailing the right and statutory periods of leave will be introduced.
• Dismissal during pregnancy and following family leave – amendments will be needed to existing Regulations and/or new Regulations introduced to extend protections against dismissal during pregnancy or after taking statutory periods of family leave.
• Equality Action plans – the requirement to publish action plans in relation to gender equality will be subject to the detail laid out in Regulations.
• The right not to suffer detriment on the grounds of industrial action.
• Public Sector Outsourcing
• School Support Staff Negotiating Body and the Adult Social Care Negotiating Body

Detail on some complex provisions impacting Local Government

‘Fire & Rehire’                                                                                            

With high profile cases such as in “P&O Ferries” the practice of “fire and rehire” has been in the spotlight and on the Government’s radar for change. Whilst the above case was blatant in its disregard for current laws, the use of dismissal and re-engagement in Local Authorities was already a rarely used practice but how will removing this option altogether impact? The Bill proposes to make dismissal unfair where the reason is failure by the employee to agree to a variation in contract (clause 24 of the latest version of the Bill).

• The latest draft has not extended the circumstances in which such a dismissal could be considered fair and still relates only to financial difficulties so serious as to affect the future viability of the organisation – an exemption almost certain not to apply to Councils.
• Whilst private organisation may be able to rely on variation clauses in contracts to effect changes without agreement, again this is not something that is normally seen in our sector as terms and conditions are agreed through national or local collective bargaining agreements. Collective bargaining itself may be impacted because of this proposed change if Trade Unions are discouraged from entering negotiations regarding changes. The employer will then have no way of implemented changes which may be essential for service delivery or best use of public money.
• With the possibility of fire and rehire removed and no alternative for the employer to make contractual changes, there is a risk that essential changes such as those needed to implement new equality proof pay structures will not be achieved, leaving Councils with potential ongoing liability from equal pay claims.
• WME have responded to the consultation outlining these concerns.

Zero hours contracts and guaranteed hours

• Zero hours arrangements are not common in most local authority jobs. There are however some small pockets where these resources have historically been used to fill some essential gaps, two such examples being leisure services and lunchtime supervisors in schools. A more major concern in Fire Authorities relates to the use of retained fire fighters.

• The Bill in its current form provides rights to guaranteed hours, reasonable notice of working hours and in some cases rights to compensation where shifts are cancelled, moved, or curtailed.
• The right to guaranteed hours though will not apply in the case of an “excluded worker, which like much of the detail of this provision, will be defined by further Regulations. At this time who will be covered, what the initial reference period is for determining the offer of hours, what subsequent reference periods are and how and if guaranteed hours offers could change are all uncertain.

• Where the new rights do apply to any roles in a council, they will increase administrative demands and may impact the ability of to manage genuine fluctuation in need of what can be key front-line roles.
• Where there is an opportunity to provide further feedback during consultation on any draft regulations WME will raise these areas of concern.

School support staff negotiating body (SSSNB)

• A provision of profound impact in Local Government and one which will require extensive consultation and detailed regulations before it can come into being.
• One concern in the current proposal is that it only covers support staff in England. Our region is one where the impact will be the greatest with some of our Local Authorities sharing a border with Wales where employment in either country is an option for some staff.
• There are also concerns about potential differentials in pay for roles in the same employer of equal value, this could lead to an increase in equal pay liability for Local Authorities.

• The remit of the SSSNB will be set out in the Regulations, currently school support staff based in academies in England will also be covered which may lead to an increased need for support in this sector of education, where there may be a decreasing level of knowledge in the mechanisms of national collective bargaining.

• Another concern relates to additional costs which may fall to councils because of SSSNB agreements where there is no additional central government funding.

Adult Social Care Negotiating Body (ASCNB)

• A similar body is to be established in relation to the pay and employment conditions of adult social care workers in England. The details of which are again subject to secondary legislation. The definition of “social care worker” covers a wide range of roles.
• There are similar concerns as those highlighted above for the SSSNB relating to differentials in pay for work deemed by the local authority as equal value.
• The concerns surrounding cross border differences in England and Wales bring the same issues in relation to this proposal.
• Where services are commissioned, there is risk that councils may either have to incur the additional costs imposed by ASCNB agreements or face the prospect of providers terminating contracts, either way this has the potential to have a destabilising effect on an already difficult to resource and high-cost area of service provision.

As and when significant amendments to the proposals are put forward, WME will continue to update and engage with our members around the impact and where there is opportunity to respond to consultation regarding the sector we will play our part in advocating on your behalf. Now more than ever, staying ahead of legislative changes is critical. 

WME is here to provide expert guidance on these reforms—and to support our members with broader HR and employment challenges. If you have questions or need strategic advice, our team is ready to help.