Employment law rights have changed, and the new Labour Government has just introduced the Employment Rights Bill which will create significant further changes. What does this mean for UKFT members?

This article has been written by Chris Booth. Chris has been an employment lawyer now for around 37 years. Over this period, he has advised many UK organisations in the fashion and textile industry. Chris is available to UKFT members to seek advice on employment law issues within your workplace. Find out more here and contact info@ukft.org for your member introduction.

Changes from 1 October 2024

The right of an employee to request flexible working

An employee can now request flexible working arrangements from day one of employment (previously the employee had to have for 26 weeks service) and can make two such requests per year (previously only one per year). The deadline for an employer to respond to requests has been reduced from three to two months.

The permitted reasons (with concrete evidence) for an employer to reject any such request remain the same. These are:

• burden of additional costs
• detrimental effect on the business’ ability to meet customer demand
• detrimental impact on quality and performance
• unable to reorganise work among existing staff
• unable to recruit more staff
• insufficient work during the periods the employee wishes to work
• planned structural changes.

The employee no longer needs to explain how their flexible working request might affect the business.

UKFT members should look at their current practices and policies (written or otherwise) around flexible working and ensure they reflect the new law.

The ACAS Code of Practice on Flexible Working Requests (link here) has been amended to reflect the new law.

Significant further changes to impact UKFT members

On 10 October 2024, the Government delivered the Employment Rights Bill (ERB).

Without question the ERB sets out sweeping changes for the workplace, the most for a generation. Employers in the fashion and textile sectors will be affected, but the changes will apply to all employers of course.

As predicted, Labour’s promise to lay legislation before Parliament in its first 100 days has resulted in a Bill which promises lots of regulations (secondary legislation) that will have to be consulted upon. The Government has also published its document telling us what is happening next in ‘Next Steps to Make Work Pay’.

Interested parties had hoped that the ERB would contain detail, but it is now very apparent that the detail is now for later in the process. However, this should allow UKFT members to prepare at a more realistic pace. There will now be a consultation process, likely to be drawn out over the many months. It could be that these new rights, after whatever amendments arise from the consultation process, may not be applicable in the workplace until 2025 or even 2026.

Theres is no immediate change in employment laws for the ERB. As the various new rights within the ERB pass through the consultation stage, and then through the Parliamentary process, the UKFT will keep members updated and informed.

We assess the primary elements of the ERB below:

Day one rights for statutory sick pay, parental leave and unfair dismissal

Significantly, the right not to be unfairly dismissed from day one is also set out in the ERB. However, there will be consultation on a nine month/270-day probation period. The probation period will require a ‘proportionate assessment of an employee’s suitability to a role’.

Inevitably, the consultation process will involve significant consideration on this new statutory probationary period, in particular what will be expected of the employer in conducting an ‘a proportionate assessment of an employee’s suitability’. Employers will need the detail on this before the new right comes in to force.

The statutory sick pay waiting period (currently three days before the entitlement exists) will go and low paid employees currently below the sick pay threshold (£123/week) will be given access to the right (although possibly at a lower rate of SSP).

The ERB also sets out day one rights for paternity and parental. It also creates this right for bereavement leave, and not just for parents.

Mothers

Pregnant women and new mothers (for six months on return) will have greater protection against dismissal.

Flexible working

Today, employees have the right to request flexible working (see above for the most recent changes to this right, and the permitted reasons for an employer to reject any such request). The law will be amended so that flexible working must be afforded to the employee unless (i) the employer considers that the application should be refused on one of the permitted reasons grounds, and (ii) the employer’s refusal is reasonable. The employer has to state the grounds for the refusal and why it is reasonable to refuse the application.

This is a real right and has sharp teeth. The employer must be reasonable in its reliance on the factors. Before this the employer only had to deal with a request for flexible working in a reasonable manner and base their refusal on one of the listed matters. The reliance itself did not have to be reasonable. Now it does.

Zero hours contracts

Employers must offer zero hours workers a guaranteed hours contract at the end of every reference period (possibly 12 weeks), and that guaranteed hours contract must specify either the days of the week and the hours or the working pattern that will be offered. The employee can, however, reject the offer. An employee will be able to complain to a Tribunal if no such offer is made. This appears to be a skeleton without the flesh at this stage. This will be significant in areas where demand fall and rises. It is obvious that this is aimed primarily at the hospitality sector, but it may well have relevancy in the fashion and textile sectors.

Amended or cancelled shifts

If an employer does not tell employees when their work is by date or time or they are on a zero hours contract, then reasonable notice of a shift change must be given – that notice must include the time and the duration of the amended shift. Reasonable notice must be given of the cancellation of a shift. The presumption is that any notice which is less than the duration of the shift itself is unreasonable. So, for an 8-hour shift, notice must be given at least 8 hours before in respect of any offer or cancellation, but reasonable notice may differ, for instance, if the worker would have to travel for many hours to fulfil the shift duties. This will restrict flexibility.

In addition, the ERB provides for payments that would otherwise have been received for cancelled and amended shifts.

There is a right to present a complaint to a Tribunal.

This is a significant loss of flexibility for the employer, and will need, carefully, to assess their needs ahead of the shift itself.

Fire and rehire

This is the process whereby the same employees are fired under ‘good’ terms and hired back under ‘less good’ terms. contribution. The new law changes the ability to fire and rehire (or even fire and hire someone new) from the current low test of ‘a sound business reason’ to a reason which must:

• be to eliminate, prevent or significantly mitigate the effect of any financial difficulties which at the time of the dismissal were affecting, or were likely in the immediate future to affect, the employer’s ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business; and
• be that in all the circumstances the employer could not reasonably have avoided the need to make the variation. The test must involve consideration of consultation with collective representatives such as a union or those representing employees.

This falls far, far short of banning fire and rehire and fire and hire anew. But it is a high standard. The employer needs to wait to make these changes until it can evidence that it is about to go under or otherwise carry on those activities. This pins the arms of business to react flexibly to changes by reducing the cost of staff.

Unions and the right to strike

There again is no detail, but effectively unions will more easily be able to access workplaces, organise, be recognised, raise funds, ballot for action and take action.

Employers will need to tell staff that they have a right to join a trade union.

Unions can request access to a workplace and, if refused, can challenge the employer’s refusal before a specialised Tribunal. This is not about union recognition but about access to the workplace so that a union can meet, represent, recruit or organise workers and to facilitate possible recognition and collective bargaining.

The right for an employee to disconnect

There will be a consultation on this possible right.

UKFT HR & EMPLOYMENT ADVICE