The Labour Party promised to introduce legislation within 100 days of forming a government to implement Labour’s Plan to Make Work Pay. In fulfilment of this promise, they have introduced the Employment Rights Bill, which will dramatically change employment laws. The Government will be consulting on these reforms in 2025 and the majority of the Bill’s measures are intended to come into effect in 2026. There has been some criticism of the Bill by the Regulatory Policy Committee which found the Government’s impact assessments of the Bill are “not fit for purpose”. The Government has yet to respond on the Committee’s findings. We discuss below some of the biggest changes that will impact schools.
Unfair dismissal
The most significant change is the introduction of the right to bring a claim for unfair dismissal from day one of employment. At the moment, employees gain ordinary unfair dismissal rights after two years’ employment, which allows employers to terminate the employment during those first two years without needing to establish a fair ground for dismissal. However, dismissal within the first two years may be more complicated if there is a possibility of the employee contending that they have been subjected to unlawful discrimination. Once day one unfair dismissal rights come into force, any termination of employment will become more complicated.
Day one unfair dismissal right will be subject to the following caveat. The Government intends to introduce an “initial period of employment”, which will likely be between three and nine months long, when dismissal will be easier. We do not yet have the full details of the rules governing the initial period of employment, however it seems that during this time, for certain stipulated reasons, an employer may follow a lighter touch process to terminate an employee’s employment.
Whilst this change will not come into effect until autumn 2026, schools should prepare for the change by putting in place processes to help determine during the initial period of employment whether an employee is suitable for the role. This will entail making performance expectations clear from the outset and putting in place systems for carefully monitoring employees during the initial period of employment.
Extension of the time limit to bring a claim
At the moment, employees generally have a three month time limit to bring a claim to an employment tribunal, with this time limit starting on the date of the event being complained about. In an Amended Paper on the Bill, the Government has proposed extending this time limit so that employees have six months to bring an employment claim. This is a hugely significant change that will likely result in a larger number of employment claims. It is not yet clear whether extra resources will be made available to the already overstretched tribunal system to help them deal with these additional claims.
Protection from third party harassment
The Bill introduces a requirement for employers to prevent third party harassment of employees in the course of their employment. A third party is anyone who is not an employee or the employer. This could apply to harassment by a pupil, parent or contractor. This means that schools will be directly liable for the harassment unless they can demonstrate that they have taken all reasonable steps to prevent the harassment. This will not only entail ensuring appropriate policies are in place, but will additionally require schools to ensure practical steps are taken to implement those policies such as focused and targeted training as well as regular monitoring and risk assessing of high risk situations.
Flexible working
There will be new regulations to give employees greater rights when making a request for flexible working.
Firstly, any refusal of a request by the employer will need to be ‘reasonable’. Secondly, the employer will be required to clearly explain their reasons and justification for declining a request. Whilst this represents a tightening up of the current rules, it is less dramatic than the change some commentators had predicted. However, it is worth noting that the Bill does contain scope for additional rules to be introduced that might set out the steps an employer must take to consult with an employee before rejecting a request, so additional mandatory procedures may come into effect in the future.
Family leave
The Bill provides further protection for employees who wish to take family leave. In a welcome move, the Bill introduces a new category of “bereavement leave”. In practice, many schools already allow staff to take leave following a bereavement. However, there will now be a statutory right for employees to take one week of unpaid leave and it will be automatically unfair to dismiss an employee for taking this leave.
Under the current law, employees may take parental leave after they have been employed for one year and they may take paternity leave after they have been employed for 26 weeks. The Bill will make both parental leave and paternity leave day one rights, putting them in line with other types of family leave.
Enhanced protections will also be introduced to protect pregnant women and new mothers from dismissal. Details of this measure have not yet been provided.
Zero hour contracts
Around 90,000 staff working in education in the UK are currently employed on zero hour contracts, and the upheaval to the rules on zero hour contracts will have a wide reaching effect for schools. Many schools and staff find the flexibility of a zero hour contract helpful, for example for exam invigilators or supply teachers. The Bill’s provisions on zero hour contracts are complex and lengthy, and much of the detail of the changes has not yet been provided. However, the key points are that staff employed on zero hours contracts will gain the right to be given a guaranteed hours contract, the right to reasonable notice of being required to work a shift and the right to reasonable notice of a shift cancellation.
End of fire and re-hire
The use of fire and re-hire to obtain employee agreement to a change of terms and conditions will come to an end, subject to a very limited exception that is unlikely to apply to the vast majority of schools. This change will have the biggest impact on schools who have not yet consulted on their membership of the TPS, as many schools have been using the threat of fire and re-hire to gain employee agreement to a change in pension provision. Going forward, this will no longer be possible and schools will need to take a different approach when consulting on TPS membership.
Statutory sick pay (SSP)
SSP is currently paid from day four of a period of sickness absence. Under the Bill, SSP will be payable from day one of sickness absence and the lower earnings threshold will be removed. Many schools offer an enhanced rate of sick pay to their staff. This often applies for teaching staff. However some support staff may be employed on terms whereby their entitlement is to SSP only. Schools will need to update such terms to ensure they comply with the new law.
School Support Staff Negotiating Body (SSSNB)
The Bill commits to reinstating the SSSNB that was abolished by the last government. The SSSNB will be tasked with ensuring support staff who are employed in local authority maintained schools and academies are paid fairly and have access to training and career progression opportunities. Whilst independent schools will not be directly affected by this measure, there may be some indirect impact if support staff demand parity of working conditions with their counterparts in maintained schools and academies.
What does this mean for schools?
There has been no change in the law as yet and the proposals set out above will not be introduced prior to consultation. Some of the measures may be amended. However, it is likely that the measures will be implemented in this or an amended format and schools should be prepared for them. We would be very happy to guide schools through the steps that they may wish to implement in preparation for the changes. Any schools requiring support should feel free to get in touch.
