Employment Rights Bill: Further amendments published

Following the publication of the “Roadmap” for the implementation of the Employment Rights Bill (“the Bill”), there have been further proposed amendments made to the Bill as part of the parliamentary process. There are a variety of proposed amendments, and it is not clear which have Government backing (and are therefore likely to pass) and which do not. However, there are two amendments which appear likely to pass into law.

Bereavement leave for pregnancy loss

Currently, if a mother experiences a miscarriage or other forms of pregnancy loss in the first 24 weeks of a pregnancy, she does not have the benefit of either being able to take maternity leave, nor is she eligible for parental bereavement leave. In addition, there is no form of statutory leave available to partners of the mother in such circumstances.

There have been a number of calls for some form of protection to exist for mothers and partners who experience a loss in the earlier stages of pregnancy and the Government has backed an amendment to the Bill which will allow mothers and their partners to take at least one week’s unpaid leave as bereavement leave should they experience loss of a pregnancy prior to 24 weeks.

Prohibition on non-disclosure agreements

The use of non-disclosure agreements and/or non-disclosure provisions within contracts and settlement agreements are set to be restricted following an amendment to the Bill which will render void any provision within a contract of employment (or any other contract such as a settlement agreement) which purports to prohibit a worker from making disclosures concerning:

• Allegations of, or a disclosure of information relating to, harassment or discrimination; or
• The response of the employer to such allegations.

This covers acts of discrimination and harassment engaged in by both the employer and/or workers of the employer. There are also provisions which allow the Secretary of State to extend the scope of the protection to also include contractors, trainees and work experience placements.

Other amendments

The amendments above are not the only amendments suggested to the Bill. As mentioned, it is not clear which amendments necessarily have Government support to proceed, but the key proposals have been summarised below:

• Fire and Rehire – under the current draft of the Bill the “ban” on fire and rehire covers any situation where the employer wishes to change an employee’s contractual terms, regardless of the nature of the proposed change. The only defence would be if the employer faces significant financial distress if it were not able to make the change. The most significant proposed amendment aims to limit the ban on fire and rehire to “restricted variations” namely changes to key terms such as pay, pension and hours of work (amongst other terms).
• Zero hours contracts – the Bill proposes to create a duty to offer guaranteed hours to those workers on zero hours contracts who work regularly for an employer over a reference period (expected to be 12 weeks). A proposed amendment looks to shift this duty into a right for such workers to request guaranteed hours if they wish, rather than having them imposed. Other amendments seek to limit this right to request only to those workers who work at least 8 hours over a rolling 26-week reference period.
• Whistleblowing – there are several proposed amendments to the whistleblowing regime which aim to provide further protection for whistleblowers including simplifying the definition of a “qualifying disclosure” and creating an “Office of the Whistleblower” as an enforcement body to, amongst other functions, create minimum standards for policies. In addition, there is an amendment proposed to make it a criminal offence to intentionally or recklessly subject any whistleblower to a detriment.

Comment

The new right to bereavement leave in cases of early pregnancy loss is a welcome change which likely reflects (and formalises) the practices of many businesses who offer non-statutory compassionate leave in such circumstances. The change to the use of NDAs is more significant and employers should review their standard terms of employment (as well as any precedent settlement agreements) to ensure that they do not prohibit disclosure of instances of harassment and discrimination.

In respect of the other proposed changes, it appears that there will be a “softening” of the ban on fire and rehire in some form so as to give employers some flexibility to change less fundamental terms of the employment contract (if the need arises), but as any proposed changes are subject to parliamentary approval it is a matter of waiting for the final version of the Bill to be published before employers will know the extent of new obligations upon them. There is talk that it will not be possible to vary terms to include a variation clause and so this is a drafting point employers would be worthwhile checking in their contractual documents so they can take any necessary steps ahead of time.