Electronic Balloting

Votes for statutory trade union recognition will now be able to be cast via electronic and workplace balloting. This should make it easier for votes to be cast and the requisite thresholds to be met as more voters may be able to participate, meaning an increased likelihood of workplaces having to deal with a recognised trade union.

Duty to take all reasonable steps to prevent sexual harassment

Currently the duty is to take “reasonable steps” to prevent sexual harassment in the workplace. This duty is being enhanced and employers will be expected to take “all reasonable steps” to prevent sexual harassment.

Third-party harassment

Currently, employers are not liable if their employees are harassed by third parties (such as customers/clients or members of the public). Employers will now be liable for third party harassment unless all reasonable steps have been taken to prevent it.

Extending time limits in the employment tribunal

Time limits to bring employment tribunal claims will be increased from 3 months to 6 months.

New Rights of Access for Trade Unions

Currently, TU officials do not have the right to access workplaces where they do not have official recognition. The Act introduces the right for TUs to request an employer enter an “access agreement” in order for TU officials to gain physical and digital access to the workplace even when they do not have official recognition. If the employer does not agree the TU can ask the Central Arbitration Committee to determine the request for access. The purpose of the access will be for recruitment of TU members, organising TU members and collective bargaining purposes. The right of access does not extend to organising industrial action.

The effect of TUs having greater access could be that they are able to increase membership, encourage greater involvement in TU activities, and ultimately seek recognition.

Protection against detriment for taking industrial action

Workers and employees are protected against suffering a “detriment” (i.e. anything analogous to “unfavourable” treatment) in certain circumstances or following certain actions. For example, if an individual raises a whistleblowing complaint, they have the right not to suffer a detriment as a result of that complaint. It essentially exists to prevent any retaliation from an employer.

The Act introduces new protection for workers against detriment on the grounds of industrial action meaning that any worker or employee which partakes in a strike cannot suffer a detriment in the workplace as a result.

New unfair dismissal protection

Employees will have the right to claim unfair dismissal after six months (a reduction from the current two-year qualifying period).

Removal of the unfair dismissal compensation cap

There is currently a cap on the compensation for financial loss: the lower of 52 weeks’ pay or a financial cap (currently £118,223). This cap will be removed.

Reducing the qualifying period for the right to a written statement of the reasons for dismissal from two years to six months

In conjunction with the reduction in the qualifying period for an unfair dismissal claim, the qualifying period for a claim for an employer’s failure to provide a written statement of the reasons for dismissal will be six months.

“Fire and rehire” practices will be restricted

A dismissal will now be automatically unfair if the reason for dismissal is because:

1. 1. 1. the employee will not agree to the variation of certain key contractual terms;
      2. the employee will not agree to the introduction of a flexibility clause covering any of those key contractual terms; or
      3. the employer intends to employ or engage another person on varied terms to carry out substantially the same role.

This will only apply to contractual terms concerning pay, working hours and holiday.

Employers should now take care when trying to unilaterally introduce changes to the terms and conditions of employment or rely on variation clauses in relation to such contractual terms.

Collective Consultation Triggers

Under a new threshold test, employers will be required to collectively consult with appropriate representatives of affected employees:

1. 1. if there are 20+ redundancies at one establishment; or
   2. if another threshold test is met, counting all employees across all sites/workplaces; in either case, within a period of 90 days.

Mandatory equality action plans

Employers with 250+ employees will be required to produce and publish a gender pay gap action plan as part of an Equality Action Plan. This is currently only a voluntary obligation.

Reporting on contract / outsourced workers

Employers with 250+ employees will be required to identify the providers/employers of contract/outsourced workers.

Menopause actions plans

Employers with 250+ employees will be required to produce and publish a menopause action plan as part of an Equality Action Plan.

Dismissal during or after pregnancy and/or during or after other statutory family related leave

Employees returning from maternity leave will be protected from dismissal during a six-month period after they return to work, except in limited specified circumstances.

This will also apply to employees returning from adoption leave, shared parental leave, neonatal care leave, paternity leave and bereavement leave.

Blacklists: strengthened protection

The Government can now make regulations to prohibit compiling lists of union members in certain circumstances. The Government will also be able to prohibit the use of such lists.

Umbrella companies

Changes have been made to the legal definitions of “employment business” for the purposes of regulating umbrella companies which will impact how agency businesses are regulated.

Flexible working

Employers will continue to be able to refuse a flexible working request albeit there will be a new additional requirement that any refusal must be reasonable.

Bereavement leave

Parental bereavement leave (introduced in April 2020) will be extended to cover other family bereavements. Employees will have the right to take one week of unpaid bereavement leave following the death of a family member.

Duty to offer guaranteed hours

Where workers are employed on zero-hours and low hours contracts, employers will have a duty to offer workers a contract that reflects the hours regularly worked over a reference period.

Duty to provide reasonable notice of shifts and compensation for cancelled, moved or curtailed shifts

Workers on zero hours or low hours contracts must receive reasonable notice of shifts (including the time, day and how many hours are to be worked) and any change to or cancellation of a shift. Workers will be entitled to proportionate compensation for cancelled shifts.

This will also apply to agency workers.

Industrial relations framework

Currently a union must show that at least 10% of a proposed bargaining unit are union members and that the majority of them are likely to support recognition in order for an application to be accepted by the Central Arbitration Committee. Unions also need at least 50% of the bargaining unit to be union members or 40% of the relevant workforce vote, with the majority of votes in favour of the motion.

The Act will lower these hurdles by:

• reducing the threshold for union membership to as low as 2% of the proposed bargaining unit;
• removing the 40% voting threshold; and
• removing the requirement to show majority support for recognition.

Union equality representatives will also have new rights to paid time off during their working hours, accommodation and facilities in order to carry out equality duties.

Banning NDAs in discrimination and harassment cases

The Act will restrict the ability of employers to enforce NDAs in circumstances which would prevent an individual from disclosing information relating to harassment and discrimination.

The changes will not apply retrospectively.