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Following their election victory, the government pledged to introduce progressive legislation that strengthens workers' rights across the country. The government has kept their promise of introducing the bill within their first 100 days of office.
Described as the ‘biggest upgrade to rights at work for a generation’, this bill- Introduced on 10 October 2024, includes 28 measures that strengthen workers’ rights and aim to create a fairer working environment for all.
While it’s anticipated that these proposed changes won’t be effective until September 2026, it’s essential to understand the key provisions that could affect schools and trusts.
The key provisions affecting education
The bill outlines several provisions to enhance worker protections and create a fairer working environment. The key provisions are:
Day one rights
Statutory Sick Pay (SSP)
- Current entitlement – 28 weeks of statutory sick pay (£116.75pw), from the fourth day of an absence.
- Current eligibility – Workers that earn at least £123 per week.
- Proposed entitlement – 28 weeks of statutory sick pay from the first day of an absence; the value of the SSP will depend on weekly pay.
- Proposed eligibility – The £123pw minimum earnings threshold will be removed and replaced with a tiered structure the less a worker earns, the lower the SSP value.
- Impact on schools – Practically, this will have little impact on schools and trusts as it is already common practice to provide contractual/enhanced sick pay from day one. The period of 196 days for which SSP is paid has not been extended.
Unpaid parental leave
- Current entitlement – Four weeks of unpaid leave per year per child, up to a total of 18 weeks for each child.
- Current eligibility – Employed for at least one year.
- Proposed entitlement – Four weeks of unpaid leave per year per child, up to a total of 18 weeks for each child.
- Proposed eligibility – Employees can take leave from day one of employment.
- Impact on schools – This form of leave is rarely taken due to its financial impact on an employee. It is important to be aware that if the bill passes without amendment, recent recruits could request to begin employment but remain on leave for a period of time before commencing their role. This could impact cover provisions.
Unpaid bereavement leave
- Current entitlement – Up to two week’s leave for each child who has died before the age of 18 or is stillborn after 24 weeks.
- Current eligibility – Day–one right for the leave, but staff must have been employed for 26 weeks to receive Statutory Parental Bereavement Leave Pay. They must be the biological parent or have parental responsibility.
- Proposed entitlement – Up to two week’s leave for each child who has died before the age of 18 or is stillborn after 24 weeks. Up to one week’s leave for the death of a ‘relevant person’. The nature of the ‘relevant person’ is not currently defined and will require future secondary legislation.
- Proposed eligibility – Remains a day–one right; however, the introduction of leave for a ‘relevant person’ expands the eligibility to all employees rather than just parents.
Paternity leave
- Current eligibility – Staff must have been employed for at least 26 weeks, and the paternity leave must be taken before any blocks of shared parental leave.
- Proposed eligibility – A day–one right that can be taken after shared parental leave.
Maternity leave
Currently, employees returning from maternity, paternity or shared parental leave have additional protection from redundancy and dismissals and must be prioritised when considering suitable alternative roles. This bill proposes an all-encompassing protection from dismissal for six months after returning from maternity, adoption or shared parental leave.
- Impact on schools – Employers must support their returning employees with compassion and understanding to recognise the potential struggles associated with returning to work. We do not anticipate a complete prevention of dismissals during this period, for example, when an employee commits gross misconduct.
Unfair dismissal
- Current legal position – Employees cannot make a claim for unfair dismissal unless they have reached two years of service (unless their claim is related to an ‘automatic unfair reason’ such as discrimination or whistleblowing). Once an employee has reached the two-year qualifying period, an employer must demonstrate a dismissal is for one of the five fair reasons (conduct, capability, statutory illegality, redundancy or some other substantial reason) and followed a relevant fair process before reaching the decision to dismiss.
- Proposal – The two-year qualifying period will be removed, and employers will be required to have a fair reason to dismiss an employee from their first day of employment and demonstrate the relevant fair process has been followed before deciding to dismiss. This right only applies from the first day of employment. Therefore, the usual unfair dismissal processes do not apply between the signing of a contract and the first day of work.
- Impact on schools – Employers should ensure they have a robust recruitment process, allowing them to identify successful talent. Line managers should also be upskilled to identify performance concerns early and understand how to support and develop their staff appropriately.
This will also impact the use of fixed–term contracts, increase the importance of having a specific reason linked to the role that identifies why it is temporary, and the process followed before the end date of the respective contract.
The government has also announced an ‘initial period of employment’ (probation period) where dismissals may not be subject to the same procedural requirement of fairness. The length of this period is undefined, but we expect the government to consult on a nine-month period. It's important schools and trusts review probation policies, ensuring they are robust and that managers are well equipped with training.
Zero–hours contracts
- Current legal position – Employers and workers can agree to enter into a contractual relationship without the obligation to offer/accept work each week.
- Proposal – Employers will have to offer workers a guaranteed-hours contract based on the hours they have been undertaking in an ‘initial reference period and each subsequent reference period’*. Workers will also be entitled to ‘reasonable’ notice ahead of any changes to their shifts, and compensation if a shift is cancelled or ended early.
*Reference periods are not defined in the bill and refer to ‘qualifying days’; it is likely this will be consulted on. We anticipate this could be 12 weeks, however, further context is required by the government.
The proposed bill does not apply to just zero-hour contracts. An amendment that refers to ‘similar contracts’ has been included. We interpret this to mean contracts for minimal hours, such as 1 hour per week, which has been designed to prevent employers from using this as a loophole to avoid the restrictions.
- Impact on schools – This is not an outright ban on the use of minimum–hour contracts, but it does restrict their flexibility. Due to the complexity of the legislation surrounding this area and the limited information within the bill, it is expected that this will require additional consultation from the government before it is enforced.
This will be an obligation on employers to provide more clarity on contractual hours/terms, however it does not prevent a worker from rejecting these terms.
Dismissal and re-engagement (fire and rehire)
- Current legal position – The recently updated Code of Practice restricted the process, requiring extensive consultation and the involvement of Acas, ensuring it is only used as a last resort.
- Proposal – The legislation will make it automatically unfair to dismiss an employee who refuses to vary their contract, or if the principal reason for dismissal is to replace that employee with another person on new terms but with substantially the same duties.
There is not a total ban on this practice. It will be accepted if an employer can demonstrate that the school or trust would have been in such a severe financial position that they would not have been able to continue without making the change.
- Impact on schools – Fire and rehire practices are almost certain to become unlawful, despite the ‘last resort’ defence. In addition, you may need to consider your redundancy process if you consider making an employee redundant (dismissing them) and recruiting to replace them with a similar role on reduced terms and conditions.
Flexible working
Flexible working was at the top of the government’s agenda, and it has been suggested that this would become a presumption of flexible working (not just the right to request it). The proposed legislation will only make minor changes. The eight business reasons to reject a request remain but now with an added obligation to demonstrate that it is “reasonable for the employer to refuse the request on those grounds”.
- Impact on schools – This does not change the process for considering a flexible working request, nor the ability to reject it. A fair process should still be followed, and any decision should be justified with evidence. We anticipate the definition of ‘reasonable’ may be clarified in future guidance.
Trade unions
Right to join a trade union and access to workplaces
There will be a requirement to inform employees of their right to join a trade union. This will require outlining in their written statement of particulars at the point of commencing employment.
The bill also includes a proposal to allow physical entry into a workplace to meet, represent, recruit or organise workers, even if they are not members of the respective union. Trade unions will be required to request access with notice, and the provisions to reject a request are not yet defined.
Protection from detriment for taking strike action
- Current legal position – Employees are protected against dismissal for taking part in strike action.
- Proposed legal position – Employees will be protected from any detriment imposed on the grounds they have participated in strike action.
Removal of minimum service levels
The Strikes (Minimum Service Levels) Act 2023 will be repealed. This act introduced minimum levels that trade unions in public sectors had to ensure were still in place within organisations (such as schools) during periods of industrial action.
School Support Staff Negotiating Body [SSSNB]
A specific body will be created to negotiate on behalf of support staff within schools and academies on:
- Pay
- Terms and conditions
- Training
- Career progression
The SSSNB will consist of representatives from employers, unions, and an independent chairperson. They will ensure that support staff receive fair pay and access to training and career advancement opportunities. To guarantee fair pay and conditions for all school staff, the SSSNB’s provisions will apply to support staff in both local authority maintained schools and academies. The exact remit and creation of the SSSNB need to be further defined through secondary legislation once this bill is passed.
Redundancy and TUPE consultations
- Proposal – When considering redundancy consultation periods, employers should take into account the number of employees affected across the entire organisation rather than individual establishments.
- Impact on schools – Schools that are part of trusts will need to discuss their plans with the central trust team to ensure they conform to the requirement to consult fully.
Equality action plans
Employers with over 250 employees will be required to develop and publish a plan that shows the steps they are taking to advance gender equality. This covers addressing the gender pay gap and the measures taken to support employees going through menopause.
Sexual harassment
The Worker Protection (Amendment to Equality Act 2010) Act 2023 introduced a duty on employers to protect workers from sexual harassment; this bill will increase liability for employers to protect them from acts committed by third parties. You can explore our recent guidance on preventing harassment in our articles: ‘Employer responsibilities for preventing harassment’ and ‘Reasonable steps employers should take to prevent harassment’.
Public sector outsourcing
Where an organisation transfers workers from the public sector into their employment, the workers already engaged at that organisation will receive protection from being treated less favourably than their new colleagues. This could impact local authority schools transferring out provisions, such as cleaners or caterers, as any outsourced provider may be reluctant to offer their existing workers enhanced terms provided by the Green Book.
When will this become law?
The bill remains in the early stages of its legislative process. It is anticipated to become an act and pass into law during the summer of 2025. At that stage, some provisions will likely need secondary legislation, making it safe to assume that some provisions will not be enforced until Autumn 2026.
EPM will continue to monitor the progression of the bill, amendments made to it, the outcome of the various consultation processes, and any secondary legislation introduced following the passage of the act.
What has not been included in the bill?
The government’s election manifesto, entitled “Making Work Pay”, promised several other changes that have not been included in the bill. These include:
Right to disconnect
It was previously suggested that this bill could introduce a right to switch off, similar to models in Belgium and Ireland. This has not been included on this occasion, however the government has expressed a desire to introduce legislation surrounding this.
Single status of worker
Labour’s manifesto included a pledge to transition from three tiers of workers (employees/workers/independent contractors) to two (employee/self-employed). This has not been included in this bill due to the significant historic common law associated with it and the high volume of work required to implement it. It is assumed this will be consulted on, and legislation will be brought forward towards the end of this parliament.
Ethnicity and disability pay gap reporting
Similar to the duty to report on the gender pay gap that currently exists, the government had stated they would extend this to reporting on ethnicity and disability, too. This, does not appear in the bill.
The government has committed to introducing legislation on the above, but this may be towards the end of this parliament or could become a manifesto pledge for the next election.
Conclusion
Although we expect these proposals to take up to two years to come in to effect, we strongly encourage schools and trusts to take pro-active steps to prepare for the impact as the bill progresses through the legislative process.
