Report on UK Employment Rights Bill Amendments and Alignment with Sustainable Development Goals

Recent amendments to the United Kingdom’s Employment Rights Bill introduce significant changes to employment law, with profound implications for the advancement of several United Nations Sustainable Development Goals (SDGs). This report analyses the key amendments concerning Guaranteed Hours Offers, ‘fire and rehire’ practices, Non-Disclosure Agreements, and bereavement leave, evaluating their contribution to creating more equitable and sustainable work environments.

Guaranteed Hours Offers (GHOs)

Advancing SDG 8: Decent Work and Economic Growth

The proposed framework for a right to a GHO for qualifying zero-hours and agency workers directly addresses SDG 8 by seeking to reduce precarious employment. By providing a pathway to more stable and predictable working hours, the Bill promotes Target 8.8, which calls for the protection of labour rights and the promotion of safe and secure working environments for all workers, including those in precarious employment.

Key Provisions and Pay Conditions

The amendments introduce specific conditions regarding the level of pay an employer must offer an agency worker in a GHO, aiming to foster fairness and align with SDG 10 (Reduced Inequalities). The employer may select from the following options:

1. Offer pay at a level no less favourable than that of comparable direct hires, potentially leading to a pay adjustment for the individual.
2. If offering pay at a lower level than some comparators, provide a written justification for the decision.
3. Offer pay based on the level the worker received during their agency assignment.
4. If the agency pay level fluctuated, provide a written justification for any offer below the most favourable rate the worker received.

Furthermore, the amendments clarify that any government-specified exemptions to the right to a GHO must be weighted in the worker’s favour, ensuring the right is only withheld in exceptional circumstances with a significant adverse effect on employers.

Regulation of ‘Fire and Rehire’ Practices

Upholding SDG 8 (Decent Work) and SDG 10 (Reduced Inequalities)

The Bill’s new rules on ‘fire and rehire’ practices strengthen protections for employees, contributing to SDG 8 by safeguarding decent working conditions. By making it automatically unfair to dismiss an employee for refusing to agree to certain adverse contract variations, the legislation protects workers from unilateral imposition of less favourable terms, a practice that can exacerbate inequality and undermine decent work.

Scope of Restricted Variations

The rules on automatic unfair dismissal will be triggered by an employee’s refusal to agree to a “restricted variation.” These include changes to:

• Pay, including reductions or removal of elements
• Measures of work linked to pay
• Pension rights
• Hours of work
• Timing or duration of shifts
• Entitlement to time off
• Clauses permitting the employer to make any of the above variations

A very limited exception exists where the variation is necessary to prevent severe financial difficulties for the business. Even in such cases, an employee may still bring an ordinary unfair dismissal claim, where a tribunal will assess the fairness of the employer’s consultation process and actions.

Restrictions on Non-Disclosure Agreements (NDAs)

Promoting SDG 5 (Gender Equality) and SDG 16 (Peace, Justice and Strong Institutions)

A significant government amendment renders void any contractual provision that prevents an individual from making allegations about discrimination or harassment. This measure is a critical step towards achieving SDG 5 by tackling systemic issues that allow discrimination and harassment, particularly against women, to go unchallenged. It also strengthens SDG 16 by ensuring access to justice (Target 16.3) for victims, preventing such agreements from being used to silence them.

Legislative Impact

The new section 202A of the Employment Rights Act 1996 will:

• Apply to any agreement between an employer and a worker, including settlement agreements.
• Cover allegations of direct and indirect discrimination, discrimination arising from disability, and harassment.
• Extend to the employer’s response to an allegation, thereby capturing instances of victimisation and protecting those who report misconduct.

Expansion of Bereavement Leave for Pregnancy Loss

Supporting SDG 5 (Gender Equality) and SDG 8 (Decent Work)

The Bill introduces a new right to bereavement leave for pregnancy loss. This provision supports SDG 5 by formally recognising a significant health and well-being issue that disproportionately affects women and their partners, fostering a more inclusive and supportive workplace. It also contributes to SDG 8 by enhancing the framework for decent work, ensuring employees are entitled to time off during profoundly difficult personal circumstances.

Details of the New Right

The statutory right will be established through regulations and will include the following:

• The leave applies to a miscarriage before 24 weeks of pregnancy or the failure of an embryo to implant following IVF treatment.
• The right is extended to the employee who suffers the loss, their partner, or a person with a specified relationship to the expected child.
• A minimum of one week’s leave is provided.
• The leave can be taken at any point within 56 days of the loss.

1. Which SDGs are addressed or connected to the issues highlighted in the article?

• SDG 5: Gender Equality

  The article discusses amendments concerning Non-Disclosure Agreements (NDAs) used to conceal discrimination or harassment, and new provisions for bereavement leave for pregnancy loss. These issues are directly linked to achieving gender equality and empowering all women and girls, as they address workplace safety and support for health issues that disproportionately affect women.

• SDG 8: Decent Work and Economic Growth

  The core of the article focuses on the Employment Rights Bill, which aims to improve labor conditions. This includes creating a right to a Guaranteed Hours Offer (GHO) for workers on zero-hours contracts, protecting employees from “fire and rehire” practices that reduce pay and hours, and ensuring fair pay for agency workers. These measures directly contribute to promoting full, productive employment and decent work for all.

• SDG 10: Reduced Inequalities

  The Bill’s provisions aim to protect vulnerable workers, such as those on zero-hours contracts and agency workers, who are often in precarious employment. By strengthening their rights and providing more stable working conditions, the legislation helps to reduce inequalities in income and opportunity within the country.

• SDG 16: Peace, Justice and Strong Institutions

  The article details the legislative process of the Employment Rights Bill through the House of Commons and House of Lords. This process of creating and amending laws to protect citizens’ rights is fundamental to building effective, accountable, and inclusive institutions. Specifically, making NDAs void in cases of harassment strengthens access to justice for victims.

2. What specific targets under those SDGs can be identified based on the article’s content?

1. SDG 8: Decent Work and Economic Growth

   • Target 8.5: By 2030, achieve full and productive employment and decent work for all women and men… and equal pay for work of equal value.

     The article’s discussion of Guaranteed Hours Offers (GHOs) for workers on zero-hours contracts directly addresses the goal of more productive and decent work. The provision that allows employers to offer agency workers pay comparable to direct hires, while requiring justification for lower pay levels, relates to the principle of equal pay for work of equal value.

   • Target 8.8: Protect labour rights and promote safe and secure working environments for all workers… and those in precarious employment.

     This target is central to the article. The protections against “fire and rehire” for variations in pay, hours, and time off are designed to protect labour rights. The focus on zero-hours and agency workers specifically targets those in “precarious employment.” The ban on NDAs for harassment allegations contributes to a “safe and secure working environment.”

2. SDG 5: Gender Equality

   • Target 5.1: End all forms of discrimination against all women and girls everywhere.

     The amendment to make NDAs void when they prevent disclosures about “relevant discrimination or harassment” directly supports this target by ensuring that discriminatory practices in the workplace cannot be legally concealed.

   • Target 5.2: Eliminate all forms of violence against all women and girls in the public and private spheres…

     Workplace harassment is a form of violence and exploitation in the private sphere. By making it impossible to use NDAs to silence victims, the Bill aims to eliminate a tool that perpetuates such behavior, thus contributing to this target.

3. SDG 10: Reduced Inequalities

   • Target 10.4: Adopt policies, especially fiscal, wage and social protection policies, and progressively achieve greater equality.

     The Employment Rights Bill is a social protection policy. By regulating zero-hours contracts, protecting against arbitrary pay and hour reductions (“fire and rehire”), and formalizing rights like bereavement leave, the Bill aims to create a more equitable balance of power between employers and employees, particularly for those in less secure jobs.

4. SDG 16: Peace, Justice and Strong Institutions

   • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.

     The article describes the creation of new statutory rights and protections, which strengthens the rule of law in employment. Making NDAs that cover harassment void under the Employment Rights Act 1996 is a direct measure to ensure that individuals have access to justice and cannot be contractually prevented from reporting wrongdoing.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

The article implies several ways to measure the impact of the Employment Rights Bill, which can serve as indicators of progress towards the identified targets.

1. For SDG 8 (Decent Work)

   • The number of qualifying workers on zero-hours contracts who are offered and accept a Guaranteed Hours Offer (GHO).
   • The number of unfair dismissal claims filed and won by employees based on the new “fire and rehire” protections.
   • Changes in the wage differential between agency workers and comparable direct hires in companies utilizing the new GHO framework.

2. For SDG 5 (Gender Equality)

   • The number of employees who take statutory bereavement leave for pregnancy loss, indicating the successful implementation of the new right.
   • A reduction in the use of NDAs in settlement agreements related to harassment and discrimination cases.
   • The number of legal cases where the new Section 202A of the Employment Rights Act 1996 is invoked to void a contractual clause.

3. For SDG 10 (Reduced Inequalities)

   • Data on the employment status of workers previously on zero-hours contracts, showing a shift towards more stable, guaranteed-hour contracts.
   • The rate of contract variations imposed on employees that involve reductions in pay, hours, or other benefits.

4. For SDG 16 (Strong Institutions)

   • The successful passage and enactment of the Employment Rights Bill into law.
   • The volume of cases brought to employment tribunals that rely on the new provisions within the Bill, indicating its use and effectiveness in providing access to justice.

4. Table of SDGs, Targets, and Indicators

Source: insightplus.bakermckenzie.com