December 2024 – Beware the Christmas Party & More on the Employment Rights Bill

So whilst it is a bit of a cliché for HR advisers to take the role of the Christmas killjoy, by suggesting that you communicate effectively with staff about expectations about their behaviour at the office do, this year there is an added poignancy to that role. Quite genuinely, the Christmas party and other social events often do act as the catalyst for sexual harassment claims to arise. The combination of alcohol, dancing, and socialising in an unfamiliar manner with colleagues can, unfortunately, lead to some individuals acting inappropriately.

With the new preventative duty in place, it really isn’t an option for employers to do nothing ahead of the event, but equally nobody wants to make the event so restrictive that people don’t enjoy themselves. At the very least, we would advise considering what risks there may be with your own plans and think how they can be addressed in as low-key a manner as possible. Feel free to call if you would like to talk this one through!

Currently, an employer needs to have a good business case for wanting to make the contractual changes, then it needs to consult with staff and try to persuade them to accept the new contract. Some sort of incentive may be offered to help smooth the way. Only then can an employer consider serving notice to force this through. This gives the employees in question the opportunity to claim unfair dismissal (if they have two years’ service), even if they accept the new terms under protest. The employer can defend the claims stating that the reason for dismissal is “some other substantial reason”, which is potentially fair in employment law terms, and that they have acted reasonably in carrying out the dismissal (that is where the good business case, consultation, etc. come into play).

The new rules will see dismissal in this context being automatically unfair from day one. The employer can defend against the claim but only if they can show:

• evidence of financial difficulties that would affect the continued viability of the business
• that the change aims to eliminate, prevent, significantly reduce or significantly mitigate the effects of those financial difficulties, and
• the need to make the change was unavoidable

That is a very high bar! But this change is unlikely to become law until mid to late 2026.

Bereavement Leave
Currently parents who  lose a child aged under 18 are entitled to 1 or 2 weeks’ bereavement leave, paid at the statutory rate of £184.03 per week. There is no other form of statutory bereavement or compassionate leave for those who lose any other relative.

Under the Bill, a new day-one right to bereavement leave will be introduced. It is likely to be limited to 1 week (other than for parents who lose a child) and the details of who will qualify, in terms of their relationship to the relative who dies, will follow later in separate regulations.

It is likely this change will come into effect quite quickly once the Bill passes into law (possibly as early as Spring 2025).  We will, of course, let you know once a clear timescale has been put in place and can help you update your policies once we have the details.

Paternity and Parental Leave
At the moment, an employee needs 26 weeks’ continuous service before they can take paternity leave and one year’s service to take unpaid parental leave. The Bill will remove these service requirements so that parents can take them from day one.

Paternity leave is paid at a set statutory rate (currently £184.03 per week). As parental leave is unpaid, take up is very low and this change is unlikely to have a significant impact. This change may also come into place quite early in 2025.

Trade Unions
There is a lot of detail in the Bill about a wide range of changes to trade union arrangements, most of which only apply where a trade union is already formally recognised by the employer. As that does not apply to most small businesses, we will just update you on the changes that may impact (if you recognise a trade union currently and would like to find out more about other changes, please contact us).

Trade unions will have a new right to access workplaces, which will give them a greater opportunity to recruit members and, therefore, increase their chances of gaining recognition.

There will be a new duty on employers to inform staff of their right to join a union and remind them regularly of this right. This will also need to be included with the written statement of employment issued to new starters.

The rules that permit a trade union to gain statutory recognition will be softened, to make it easier for a union to succeed. Currently the union has to show that it is likely that at least 50% of workers in the bargaining unit would vote in favour of recognition before it can proceed with the statutory recognition process. That will be reduced to 10% and secondary legislation may even reduce it to just 2%.  Also, currently at least 40% of the number of people in the bargaining unit must vote in favour of recognition, even if 50% of those voting vote in favour. That requirement will be removed so that a simple majority in the vote will suffice.

Whilst trade unions are likely to put their energy into gaining recognition in larger organisations, it is possible that this will filter down to some smaller organisations in time, or where there are already a number of staff who are members of the same union. This change is anticipated to take effect mid to late 2026.

• to £12.21 per hour (from £11.44) for workers aged 21 and over
• to £10.00 per hour (from £8.60) for workers aged 18 to 20
• to £7.55 per hour (from £6.40) for workers aged 16 and 17; and for apprentices under 19 and those over 19 in their first year*

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.