Employment Rights Act: What employers need to know

The Fair Work Agency (FWA) has been created to deal with enforcement functions previously carried out by HMRC and other government agencies. It will be given a number of powers including compelling individuals to attend meetings, entering premises to inspect documents and bringing claims on behalf of employees. The FWA will enforce compliance on:

• Holiday pay
• Minimum wage
• SSP
• Worker exploitation

Organisations must ensure payroll, working time records, and compliance systems are robust.

Some leave entitlements will be available from day one of employment:

• Paternity leave, unpaid parental leave and bereavement leave – employees can take leave from day one, but pay still requires qualifying service.
• A right for the father or partner’s to take paternity leave where the child’s mother dies (including death in childbirth or within the first year after birth).

Employers will need to take ‘all reasonable steps’ to prevent harassment (including sexual harassment) in the workplace and by third-parties.

Reports of sexual harassment will amount to protected whistleblowing disclosures.

New right to a statement of trade union rights and a trade union right of access. Trade union officials and learning representatives are also set to gain rights to facilities and time off.

Individuals will also gain strengthened protection from blacklisting and protection from detriment on grounds of industrial action.

Where public services are outsourced to contractors, the contractor’s direct hires cannot be treated less favourably than the public sector workers.

Employees will qualify for unfair dismissal protection after six months of service, except in cases of automatically unfair or discriminatory dismissal.

The cap on compensation is expected to be lifted after the government has carried out and published an impact assessment. These changes makes probation, performance management, and consistent documentation essential.

New duty to offer guaranteed/minimum hours contracts to zero hours workers, those on minimum hours contracts and agency workers based on average hours worked in previous reference period (likely to be 12 weeks).

New right to compensation where shifts are cancelled or postponed at short notice or where the employee refuses a shift because the employer has not provided reasonable notice. This is a major shift for organisations relying on flexible or just-in-time staffing.

Employees can submit flexible working requests from day one. Employers must:

1. Consult with the employee before refusing
2. Provide clear reasons for any refusal
3. Demonstrate that any refusal is fair and reasonable (based on one or more of the statutory grounds)

This change focuses on consultation and transparency, not automatic entitlement.

There will be stronger protection against dismissal for women who are pregnant and for those who are taking or returning from a period of statutory family leave.

Large employers (with 250 or more employees) will need to publish annual equality action plans, covering gender equality, menopause support, and menstrual health.

Bereavement leave extended to cover a wider class of family members with whom the leave may be associated.

Employers will be required to keep records of their employees’ entitlements to holiday and holiday pay.