The Employment Rights Bill: proposed amendments confirmed

Further to our recent article in which we outlined the Government’s proposed amendments to the Employment Rights Bill (the Bill), we can now confirm that the Government has accepted the amendments.

Further significant amendments accepted by the Government are set out below.

Stronger collective redundancy consultation protections

In addition to the amendments previously outlined, the Government has appeared to have headed warnings from employers in relation to its plan to ensure that the right to redundancy consultation would be determined by the number of people impacted across the business, rather than in just one establishment.

Under the amended Bill, the obligation to collectively consult over redundancies will be triggered where an employer is proposing to dismiss as redundant within a period of 90 days or less, either:

• 20 or more employees at one establishment; or
• At least the ‘threshold number of employees’ across the business (the threshold number to be determined).

This will mean that where employees are being made redundant at more than one establishment, the trigger for collective consultation can be set at a higher number than 20 employees. However, there is not yet an indication as to what that trigger might be.

Whilst this is likely to mean that collective consultation will apply far more often than it does currently, it is unlikely to apply to the extent it would have done under the original drafting of the Bill.

Bereavement leave and pay for pre-24-week pregnancy loss

The Bill already contains provisions to convert the existing right to statutory parental bereavement leave to a more general form of bereavement leave.

Following a report from the Women and Equalities Committee, an amendment to the Bill was proposed which would entitle those suffering pregnancy loss due to a miscarriage, ectopic pregnancy, molar pregnancy, medical termination, or unsuccessful IVF embryo transfer to two weeks’ bereavement leave and statutory bereavement pay.

Whilst this amendment was not accepted, the Government has accepted the principle of bereavement leave and pay for pre-24-week pregnancy loss and indicated that discussions will take place with a view to the Bill being amended in due course.

Fair Work Agency

The recent amendments to the Bill include changes to the way that breaches of employment law can be enforced, representing a big shift to the current regime.

Currently, if a worker believes their employer is in breach of employment law, it is down to them to bring a claim. Under the amendments, a new ‘Fair Work Agency’ will be able to take action on behalf of workers, including:

• Notices of underpayment: the Secretary of State will have the power to issue a notice of underpayment where an employer has underpaid a worker, including for statutory sick pay and holiday pay. The employer will have 28 days to make payment.

• Power to bring employment tribunal proceedings: where a worker has the right to bring employment tribunal proceedings and it appears to the Secretary of State that the worker is not going to bring proceedings, the Secretary of State may do so in place of the worker.

• Power to provide legal assistance: the Secretary of State will be able to assist a person who is or may become a party to civil proceedings, including providing legal advice and representation.

• Power to recover costs of enforcement: the amendments enable regulations to be made to require a person who has failed to comply with any labour market legislation to pay a charge relating to the enforcement costs incurred.

Little is known about how this will work in practice or how the new Fair Work Agency will be funded. We can expect further detail on this as the Bill continues its passage through Parliament.

Comment

The Bill will now pass through the House of Lords, and we anticipate significant debate during that process, with an expectation of further proposed amendments. Employers are advised to keep up to date with the passage of the Bill so as to be informed of the changes to employment law that we can expect to see from late 2026 onwards.