The Government鈥檚 Employment Rights Bill (鈥渢he Bill鈥) was laid before parliament on 10 October 2024. And at more than 150 pages and containing 28 employment measures, it should not be underestimated.聽
Hailed as 鈥渢he biggest upgrade to workers鈥 rights in a generation,鈥 it is a significant piece of legislation in the UK. Much of what is proposed is ambitious and will represent a marked shift from existing practices.
Its implementation is likely to have a range of implications for independent schools, particularly in terms of employment practices, the protection of employees, and compliance with new legal requirements.
However, change will take time.聽The accompanying document to the Bill, 鈥淣ext Steps to Make Work Pay鈥, sets out detailed plans about how the Government intends to bring the reforms into effect.聽It expects to begin consulting in 2025 and anticipates that the majority of the reforms will not impact immediately, with very many not anticipated to come into effect until 2026, following a substantial transition period.
Below is an outline of the main issues and impacts the Bill might have on independent schools:
Enhanced worker protections
The Bill is designed to strengthen workers’ rights in several areas. Independent schools, like other employers, will need to ensure compliance with these enhanced protections for their staff, including:
Unfair dismissal protection:
Currently employees must have at least two years continuous service to bring an ordinary unfair dismissal claim (save for some exceptions). It is proposed that the qualifying service requirement will be removed, and all employees will be able to claim unfair dismissal from day one.
This will only apply to employees, not workers. However, the Government have confirmed a review of worker status in the long term. It鈥檚 anticipated that approximately nine million more employees would be able to bring claims.
Probationary periods:
It is suggested that the Bill will balance giving staff protection against unfair dismissal by allowing employers to operate probationary periods. It Is not yet clear what process will be required but the Government intends to legislate to 鈥渋ntroduce fair and proportionate processes for dismissal鈥 during probationary periods. It is anticipated this will include holding a meeting with the employee and a preference for a probationary period of nine months has been indicated. The Government intends to undertake extensive consultation on this proposal.
Independent schools will need to ensure robust recruitment procedures, allowing you to identify any issues early. It will be particularly important that line managers are trained to understand how probationary periods will operate and the process they are required to follow to minimise the risk of successful unfair dismissal claims.
Fire and rehire practices
Despite controversy over this practice, the Conservative Government resisted calls for an outright ban and instead put in place a Statutory Code of Practice on dismissal and re-engagement, making clear that fire and-rehire should be a last resort.
The Bill will make it automatically unfair to dismiss an employee if the principal or fair reason for the dismissal is either:
- the employer sought to vary the employee鈥檚 contract of employment, and the employee did not agree the variation; or
- to enable the employer to re-engage the employee, or employ another person, under a varied contract to perform substantially the same duties as before.
The Bill provides an exception, if the employer can show:
- the reason for the variation was to prevent or significantly reduce financial difficulties.
- the financial difficulties were affecting the employer鈥檚 ability to carry on the business as a going concern.
- in all the circumstances the employer could not reasonably have avoided the need to make the variation.
- in determining fairness, the Tribunal considers any consultation was carried out about varying the contract and if anything was offered in return for the variation.
This is likely to be a high bar for independent schools to meet. As drafted, these provisions are likely to have extensive ramifications for employers seeking to change contractual terms or restructure. However, this is not often seen in a schools鈥 context so may not have a significant impact.
Collective redundancy
Currently collective consultation is required if an employer proposes to dismiss 20 or more employees as redundant in a period of 90 days or less. This number is based on 鈥渁t one establishment鈥. The proposed changes to the rules are that the collective consultation threshold is increased so that it is calculated across the whole business rather than a single establishment. It is also suggested that the cap on a protective award if an employer does not properly consult during collective redundancy, currently at 90 days鈥 gross pay, will be lifted.聽
For independent schools, this may mean collective consultation obligations are triggered more frequently placing a heavier administrative burden in terms of monitoring and record keeping. Depending on your structure and employing entities, you may need to be particularly careful should you have a group of schools and/or different businesses.
Statutory Sick Pay (SSP)
Currently only payable after the fourth day of sickness absence and if an employee meets the lower earnings threshold of at least 拢123 per week. It is proposed both these requirements will be removed, there will be an entitlement from day one and the Government will consult on what rate those below the threshold will receive.聽
This is likely to have little impact on independent schools as for many it is already common practice to provide contractual and/or enhanced sick pay from day one with payments over and above SSP.
Equality action plans
Independent schools with 250 or more employees will be required to produce action plans on matters relating to gender equality, including addressing their gender pay gaps and supporting employees through menopause.
Again, this may have little impact as many independent schools are already taking steps to address this.
Family-friendly protection
Maternity protection: Additional protection is currently given to pregnant women and those returning from maternity leave or extended family leave in a redundancy situation. The Bill will strengthen protection, making it unlawful to dismiss a new mother within six months of their return to work, except in specific circumstances.
Parental and paternity leave: Currently an employee needs 26 weeks鈥 service to take paternity leave and at least one year鈥檚 service to take unpaid parental leave. It is proposed that this will become a day one right and other restrictions may be removed.
Bereavement leave: Currently a day one right but only covers a biological parent or those with parental responsibility. It is proposed that this will be extended to create a right to leave to a 鈥榬elevant person.鈥 It is not yet clear what or who this may cover and is likely to be consulted on.
Review: It is proposed that there will also be a full review of the parental leave system and carer鈥檚 leave.
Independent schools will need to accommodate these extended rights. You may now see such rights being exercised more regularly and have to consider how best to accommodate this and provide cover.
Right to request flexible working
Following changes made from 6 April 2024, flexible working is currently a day one right and up to two requests can be made per year. Under the Bill, the Government suggest flexible working will become the 鈥榙efault鈥 position, not just a right to request. The eight statutory reasons to refuse a request will remain but there will be an added obligation on employers to demonstrate that it is 鈥reasonable for the employer to refuse the request on those grounds鈥. This does not change the process but may impact schools in several ways:
Increased demand for flexible working: Teachers and staff may increasingly request flexible working arrangements, such as remote teaching, part-time hours, or adjusted schedules. Independent schools will need to ensure their policies and practices support such requests while maintaining operational needs.
Managing operational impact: Schools will need to balance flexible working arrangements with maintaining the quality of the education and support services they deliver and ensuring that staffing levels are sufficient to cover all required duties. This could require more strategic planning and investment in staff management.
Zero-hours contracts
Currently independent schools can agree to enter a contractual relationship with no minimum hours and without the obligation to offer or accept work, typically seen in contracts with invigilators or sports coaches.
The Government committed to 鈥渂anning exploitative zero-hours contracts鈥. Whilst not going that far, the provisions in the Bill are detailed and complicated but in summary what鈥檚 proposed is:
- A duty to offer qualifying workers a guaranteed-hours contract based on the hours they have been undertaking during an 鈥榠nitial reference period and each subsequent reference period鈥. This will apply to both zero hours and 鈥榣ow鈥 guaranteed hours. The reference period is likely to be 12 weeks.
- Workers will have the right to reasonable notice if they are required to work a shift, or if a shift is cancelled or changed. Compensation will be payable for any shifts cancelled or curtailed at short notice.聽There is not currently information on what will amount to “reasonable” notice or “proportionate” compensation.
Specific detail about how this will operate will be subject to consultation and secondary legislation. What is clear is that it is likely to introduce stricter regulations around zero-hours contracts and limit their use which may have a substantial impact on independent schools depending how often you use these types of contacts.
Many independent schools rely on flexible staffing arrangements, such as zero-hours contracts for part-time teachers, support staff and others. Key impacts include:
Clarification of terms: Schools will need to provide clearer terms in zero-hours contracts, ensuring that staff understand their rights, including any guarantee of work, the right to reject shifts and the circumstances under which the contract can be terminated.
Potential restrictions: There may be limitations on the use of zero-hours contracts for workers who work regular hours over a sustained period. Schools may need to offer permanent contracts or find ways to adjust staffing arrangements.
It would be advisable to start auditing now how you engage workers and whether they may fall under this type of engagement so you can assess how many workers may be impacted.
Trade Unions and strike action
The Bill will remove restrictions on trade union activity, introduce a process for requesting access to the workplace and require written particulars to include a statement that workers have a right to join a trade union.
Currently employees are protected against dismissal for taking part in strike action. The Bill proposes that employees will be protected from any detriment imposed on the grounds they have participated in strike action.
This article first appeared in the latest Winter 2025 edition of Independent 樱花动漫 magazine, out now.
