With the government’s Employment Rights Bill expected to be published on Thursday (10 October, 2024), businesses are already reviewing their workforce and are reluctant to hire more staff, according to one law firm.
With major law reforms in pipeline, consensus points to an inevitable increase in tribunal cases.
HR and reward professionals have already voiced concerns about the planned removal of the two year qualifying period that employees must complete before they can bring an unfair dismissal claim.
Faster performance judgments
Nicholas Le Riche, partner in the employment law team at BDB Pitmans, said: “While at the moment they have some flexibility over whether to keep staff during the first two years of employment, employers will need to make much faster judgments over whether a new hire is working out.
“Many employers do already have robust performance assessments in place during probationary periods, but these arrangements will be even more vital now in light of the changes.
“The potential impact of this change has meant that we’ve seen more organisations reviewing their workforces now before the new rules are in force, and several organisations we work with have told us that they’re more reluctant to hire staff as a result.”
A report in the Times suggested that the bill will still allow employers to dismiss unsatisfactory workers without a full performance management process as long as they set out their reasons in a letter.
Commenting on this, Dominic Holmes, partner, employment law at Kilgannon and Partners, said: “We would advise employers to do this anyway if dismissing currently, before an employee reaches two years service, so they are clear on the reasons for dismissal. It reduces the risk of claims for discrimination and whistleblowing if you are clear about that.”
Tribunal files lost
Le Riche said there is “certainly” going to be an increase in employment tribunal claims following the introduction of the bill as it will provide a much greater number of employees with protection from unfair dismissal.
He also said that the government’s promise to “continue to boost technology within tribunals” must be delivered quickly and that there will need to be more significant investment in the system to stop it grinding to a halt.
“We’re already aware of tribunals losing employees’ case files, not processing claims for almost a year from when they’re submitted as well as hearings being cancelled on very short notice due to lack of judicial availability and an increase in workload without further investment will only exacerbate these issues.
“The government is clear in its determination to [extend] employees’ rights but without a corresponding extension of funding for the tribunal system, the ability for both employees and businesses to manage these changes effectively could be undermined.”
Universal sick pay
In a video on the imminent law reforms, Holmes said that the potential introduction of universal entitlement to sick pay were also significant.
“Currently you don’t qualify [for sick pay] for the first three days of sickness or if your earnings fall below a lower limit.
“Those [restrictions] are being removed, which is expected to bring 8.4 million more people within the scope of statutory sick pay protection. It’s very significant for those working in low paid jobs or who are part time.”
Flexible working shift
He highlighted potential changes to flexible working rules as “more significant than any other”.
“Currently employees have the right to request flexible working from day one but employers can say no if their reasons fall within the eight specified reasons set out in legislation,” Holmes explained.
However, reports suggest that employers will be expected to green light flexible working requests unless it is not reasonably practical because of the nature of the job.
“That could be a really big shift,” he said.
‘Witch-hunt’ warning
In response to criticism of the proposed changes to flexible working, a coalition of unions and equality campaigners warned of a “witch-hunt”.
“It’s time to stop the witch-hunt against flexible working. In recent weeks, we have seen relentless scaremongering about how new legislation on flexible working will harm UK businesses and productivity,” said the coalition, comprising the TUC, Age UK, the Fawcett Society, Anna Whitehouse (founder of Flex Appeal) and Pregnant Then Screwed.
“These warnings couldn’t be further from the truth.”
Highlighting the recruitment and retention challenges that employers face, the group said: “There are 800,000 fewer people in the workforce than before the pandemic, and one of the biggest issues facing employers is recruiting and retaining skilled staff.
“Look at our public services. In the midst of a staffing crisis, health, education and social care workers are leaving due to a lack of flexibility.
“This is not an isolated example. Research published by the CIPD last year found that an estimated four million people have changed careers due to a lack of flexibility at work.
“Flexible working can bring more people back into the labour market and keep them there.”
