Posted: 17/07/2025
As it heads towards the parliamentary summer recess, the government has been busy making final changes to its flagship Employment Rights Bill, which is now expected to receive royal assent in early autumn. In addition to the changes - examined in more detail below - the government has also published an implementation 'roadmap', setting out dates for many of the proposals, which it states will 'allow employers, workers, trade unions and other stakeholders to plan ahead to ensure that they can prepare for these important reforms'.
Autumn 2025
We now know that as soon as the Bill is enacted, many of the proposals relating to trade unions and industrial action will come into force. This will include repealing the ill-fated minimum service levels legislation and much of the Trade Union Act, introduced by the previous government, and enhancing protection from unfair dismissal for those taking part in official industrial action.
April 2026
Among other changes, April 2026 will see the following measures:
October 2026
In October next year, the following proposals will be introduced:
Not before 2027
The government has confirmed that the headline proposal that unfair dismissal will become a day one right will not be implemented before 2027. Similarly, the provisions for improved access to flexible working, restrictions on the use of zero-hours contracts and enhanced dismissal protection for pregnant women and new mothers will not come into force any earlier than 2027.
On 7 July 2025, the government tabled a number of amendments to the Bill which will be considered this month by the House of Lords. Key changes to the original proposals include:
Fire and rehire
It was originally proposed that it would be automatically unfair to dismiss someone either for refusing to agree to a variation in their terms and conditions of employment, or in order to replace them with someone on varied terms and conditions performing substantially the same activities. Previously, it did not matter what the nature of the proposed variation was. Under the amended provisions, the new right will only apply when the proposed variation is a 'restricted variation'. Restricted variations are defined in detail, but essentially relate to any terms relating to the employee's pay, hours and holidays.
Significantly, restricted variations do not include changes to the employee's place of work, or to the employee's duties, meaning that a dismissal and re-engagement to effect such changes will not be automatically unfair. This does not mean, however, that such variations can be made without fear of claims. Rather, in considering the fairness of any dismissal for refusing to agree a variation that is not a restricted variation, a tribunal must take into account a number of specific factors - essentially the same as the reasonableness test that a tribunal would already apply in unfair dismissal cases.
The government has also closed a loophole in the previous provisions by making it clear that the amended rules will apply where the employer replaces employees with non-employees, such as agency workers, as long as they will be carrying out substantially the same activities as the dismissed employee.
As these represent significant changes to the original proposals, a consultation will launch this autumn, before the changes come into force in October 2026.
Bereavement leave
It is proposed that bereavement leave be extended to early miscarriages, ie those that occur before the 24th week of pregnancy.
Non-disclosure agreements (NDAs)
One of the changes that has garnered the most headlines is the government's proposal to ban so-called NDAs. A new clause 22A will render any provision in an agreement between an employer and a worker void in so far as it purports to prevent the worker from making an allegation or disclosure of information relating to sexual harassment or discrimination in the workplace.
Announcing the measure, Employment Rights Minister, Justin Madders, commented that these amendments 'will give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with, not hidden', with the government press release going on to state that 'if passed, these rules will mean that any confidentiality clauses in settlement agreements or other agreements that seek to prevent a worker speaking about an allegation of harassment or discrimination will be null and void'.
Currently employers are prevented from relying on confidentiality provisions where the worker has made a protected disclosure. These new provisions go one step further, by removing the hurdles required to establish that the disclosure is protected, such as being in the public interest or made to specified persons. Furthermore, the new proposal will extend to allegations as well as disclosures of information, and there is no requirement that the allegations are made in good faith.
It is interesting that, according to the wording of the press release, the ban will extend not only to harassment claims, but to all claims that involve an element of discrimination (save for claims relating to a failure to make reasonable adjustments). As many claims will raise allegations of discrimination, whether or not substantiated, this is likely to be of wide application.
While the proposals have been welcomed by campaigners, many have warned that the ban risks unintended negative consequences. If employers are unable to impose confidentiality obligations as part of a settlement, it is likely that far fewer claims will be settled, meaning that victims will be forced to enter into costly and stressful litigation in order to receive any compensation. Many victims of discrimination and harassment will not want to go public about their treatment, and imposing a ban will remove agency from victims who will be left with fewer means of redress.
It is not yet clear when the proposed ban would come into effect (as the amendment was tabled after the roadmap was published), although the government has made clear that a ban will not be retrospective, and any NDAs entered into before the implementation date will remain in force.
We will be closely monitoring the progress of the Bill, including the various consultations, and will be publishing deep dives into the various changes to enable you to prepare in good time. Our first deep dive into the changes, which are expected this autumn, will be published shortly.
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