JMW Solicitors’ experts offer advice on industry-related law matters
The Employment Rights Bill, unveiled by Labour in October, contains several significant proposed changes to employment law, including the right to claim unfair dismissal from day one of employment. But what does this change mean for operators?
The current law (with some exceptions) requires employees to have at least two years of continuous service before they are eligible to bring an unfair dismissal claim. With the new proposed “day one” right, employees will be able to claim unfair dismissal from the very start of their employment.
One area that has drawn particular attention in discussions surrounding this proposed change is the role of probation periods. The consultation document refers to the introduction of a statutory probation period.
We don’t know how long any such probationary period will be, but nine months has been suggested. This is still yet to be confirmed following government consultation. It is expected that, during this period, there will be a light-touch and a less onerous process for operators to fairly dismiss an employee.
The right to claim unfair dismissal from day one will make it riskier for operators to dismiss and is likely to lead to more employment disputes. It may also have a knock-on effect on operators’ (particularly smaller operators’) willingness to hire, although the statutory probation period should address this concern.
The current unfair dismissal law will remain in place until legislation is passed following consultation by the government. This means the two-year qualifying period is still appliable for the time being.
However, operators should consider taking steps now to ensure robust processes and documentation are in place for assessing employee performance and handling dismissals.
Operators should also consider enhancing their recruitment procedures and/or pre-employment vetting and strengthening their procedures for assessing the performance of new starters during their probationary period.
Will zero-hours contracts be banned under Labour’s new overhaul of employment law?
Contrary to reports, the Employment Rights Bill does not “ban” zero-hours contracts. Instead, the government has proposed to give workers on zero-hours (or low-hours) contracts the right to be offered a guaranteed-hours contract which properly reflects hours regularly worked over a specified reference period (suspected to be 12 weeks).
By introducing this right, the government aims to curb one-sided flexibility and address concerns over unpredictable hours and financial insecurity.
Under the current proposals, employees will be under no obligation to accept and can choose to remain under their original contract. Further, operators will have to give “reasonable notice” if there are changes in shifts or working time and compensation will be payable if shifts are cancelled at the last minute.
The Employment Rights Bill does not ‘ban’ zero-hours contracts
These measures seek to encourage operators to plan schedules responsibly, providing workers with greater job security and predictability.
The impact on the transport sector will depend on the details, which are subject to government consultation, including how the rules will apply to agency workers.
We may see operators moving away from using zero- or low-hours contracts in favour of overtime or the use of temporary or fixed-term contracts.
Ultimately, there is no need for operators to take immediate action. We are expecting consultation to begin next year. However, useful preparations to consider are:
- Auditing the current workforce to identify the proportion engaged on zero-hours contracts and in which areas of the business;
- Tracking seasonal fluctuations — for example, the summer peak for tours and excursions. Any evidence around predictable fluctuations will help support any belief there is only a temporary work need for a certain period of time;
- Reviewing the current use of fixed-term contracts as an alternative to address any seasonal work requirements — for example, for those drivers who are only engaged in term-time on home-to-school transport.
[Answers by Laura Hadzik, Partner; Charlotte Beeley, Senior Associate – JMW Solicitors]
