Guaranteed hours – who will qualify?

Posted on December 5, 2024 by Darren Newman

How many hours do you have to work before you are no longer on a ‘low hours’ contract?

The question is crucial to the right to guaranteed hours contained in the Employment Rights Bill currently at the Committee Stage in the House of Commons. As I have previously set out, this is a complicated right under which a worker who works in excess of their guaranteed hours over a reference period is entitled to be offered a contract reflecting the hours that they have worked. This right continues to apply to them – with subsequent reference periods resulting in further offers of guaranteed hours – for as long as the worker qualifies for the right. 

But who qualifies? The Bill says that those employed on a zero-hours contract qualify (a concept already defined in the Employment Rights Act) but also any worker who, over the reference period, is entitled to be offered a number of hours of work ‘not exceeding a specified number of hours’ (page 2, line 30). 

The right to guaranteed hours set out in the Bill leaves many things to be specified by Regulations, but this is surely the most important of them. The Government has to decide how narrow or how wide this new right is going to be. 

For example, if the threshold was set at three hours per week then the right would not amount to much. Most employers would simply guarantee workers three hours of work and would not have to give the matter any further thought.  If the threshold were to be set at 20 hours per week then that would be a completely different matter. Most part-time workers would be in scope and employers would have to monitor any additional hours they worked very carefully – offering them guaranteed hours whenever their working pattern met whatever criteria as to number and regularity that the Government eventually comes up with. This will operate as a ratcheting mechanism, increasing the workers guaranteed hours over time until they reach the threshold.

So depending on where the Government sets that threshold, the right to guaranteed hours could either be a token right of no real significance, or the most fundamental shift in the regulation of working time since the Factories Acts of the nineteenth century. I for one am quite curious as to where on that spectrum the Government will eventually land. 

The issue was debated in the Commons Committee stage on 3 December. In response to a probing amendment from the opposition suggesting a 2-hour threshold, the Minister Justin Madders referred to the retail sector and said:  

People who work in that sector can be on guaranteed hours of 16 hours a week but still face insecurity. Equally, a lot of the people that we are trying to help here have no guaranteed hours at all. There is an argument that anyone below full-time hours—again, there is a debate about what that means—could be within scope. (Column 198)

He stressed that this was all a matter for consultation, but it seems that at this stage at least the Government does not intend the right to guaranteed hours to provide a token entitlement to a minimum number of hours work per week. The threshold is likely to be set at a significant number.

That raises a further issue that the Government will need to consider. Regulations will set out the criteria to be met in order to trigger an offer of guaranteed hours. This will not, I assume, simply be an average of the hours they have worked in the reference period. The right is aimed at workers who regularly work in excess of their guaranteed hours. It would be completely unworkable if one busy week involving 40 additional hours of work required the employer to increase the guaranteed weekly hours as a result. Rather, the criteria set out by Government will deal not just with the number of hours worked but also the regularity with which they are worked. For example, they could provide that the worker must work more than five hours above their contracted hours in at least seven weeks out of the twelve-week reference period. 

But how can the Government prevent this from merely setting a limit on the number of hours an employer will offer a worker? Whatever threshold is set, wouldn’t this incentivise the employer to say ‘uh-oh, this employee is getting close to the limit, we’d better avoid offering any additional work until the next reference period starts’? Will the new right have the perverse effect of limiting the work offered to those on insecure work? 

It may be that Government would regard employers being deterred from offering additional hours to some employees as a fair price to pay for the general increase in the security and predictability of work that the new right would bring. There are always trade-offs.  But it does look as though current Government thinking is that the right to guaranteed hours is going to be a significant new provision that goes well beyond merely tackling ‘exploitative’ zero-hours contracts. If that is so, then its impact will be complex and hard to predict. 

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Employment Rights Bill – increasing time limits for tribunal claims

Posted on November 28, 2024 by Darren Newman

The Employment Rights Bill is about to reach the stage when the Commons Committee considers proposed amendents. Some of these are proposed by the opposition but I don’t think we need to spend too much time on them. They are proposed for the purposes of prompting debate but will almost always be withdrawn without a vote. In some cases the Government may accept that a particular member has a point, but usually that means them undertaking to present a properly drafted amendment of their own at the Report Stage. 

What we need to be on the lookout for are Government amendments. These will almost certainly be passed and they show the development of Government thinking as the Bill progresses. Many of them are purely technical – fixing typos or tying up loose ends. Other are mote substantive and can even introduce completely new measures. 

This week the Government has tabled a huge raft of amendments (Government amendments are the ones proposed by Justin Madders, Minister at the Department of Business and Trade). A good number deal with the right to guaranteed hours – making it even more complex. I am starting to think that the Government might be in trouble with this provision. It is simply too complicated to be workable. It leaves a great deal to be sorted out in later Regulations, but as the Employment Lawyers Association says in its written evidence to the committee secondary legislation does not tend to simplify primary legislation. Might we see a re-think as the Bill progresses?

One completely new reform inserted by these amendments is an extension of the limitation period for bringing an employment Tribunal claim from three months to six. This is a significant change – doubling the time that an employee has to decide whether or not to bring a claim against their employer. 

There was no mention of this when the Bill was published – although Labour’s policy document ‘Make Work Pay’ did indicate that it was something the new Government would do. I suspect that the reason it was not in the original bill is that the change takes a lot of detailed drafting – changing the word ‘three’ to ‘six’ in (I counted) 115 different places. These range from the obvious claims in the Employment Rights Act 1996 to the rather more obscure Fishing Vessels (Working Time: Sea-fishermen) Regulations 2004. I suspect it has taken until now to complete the list of measures affected. 

I think this change has to be welcomed – although employers may well regard it as one more way in which the balance of employment law is being tilted away from them. The fact is that a three-month time limit for what might be a significant legal claim is absurdly low. It made sense when many employment rights were introduced in the 1970s and it was assumed that a case would be heard within a few weeks of it being brought. But with many claimants waiting more than a year to get to a full hearing, the need to put a claim in within a three-month is hard to justify. The Law Commission recommended this change back in April 2020 so the idea has not simply been plucked from the air.

Will the impact be more claims or fewer? There is an argument that giving people six months before having to make a claim gives claimants longer to seek a resolution to their dispute rather than being hurried into issuing Tribunal proceedings. My view is that this effect will be outweighed by the people who are no longer prevented from bringing a claim in time because it takes too long to organise legal advice or because they were seeking an internal resolution first. A victim of harassment for example might well seek to resolve matters internally through the employer’s grievance process and not think of making a claim until that is exhausted. In many cases it is then already too late. There will, I think, be more claims as a result of this change.

Of course, there are circumstances in which the time limit for bringing a claim can be extended. The pursuit of Acas early conciliation can typically put the deadline back by a month or so (its complicated, don’t ask). The Tribunal may also choose to extend the deadline. In a discrimination or harassment claim they can do this when they consider that it would be ‘just and equitable to do so’. In an unfair dismissal claim (among others) they can do so only when it was not reasonably practicable for the claim to have been brough within the time limit. That is a much stricter test and in 2020 the Law Commission – in addition to recommending an increase in the time limits to six months – recommended that all Tribunal claims should be subject to the ’just and equitable’ test for an extension. There is no sign of the Government moving in that direction yet – but there is still time for more amendments to be tabled

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Defining ‘sex’ in the Equality Act

Posted on November 25, 2024 by Darren Newman

[Added: April 2025
Well the Supreme Court Decision is out and they have allowed the appeal and ruled that for the purposes of the Equality Act 2010, sex is determined biologically and not be reference to a Gender Recognition Certificate. I’m not a fan of the decision but we are where we are. I have written about what the Supreme Court held and why here: https://hrcentre.uk.brightmine.com/commentary-and-insights/the-definition-of-a-woman-the-legal-meaning-and-practical-implications-of-the-supreme-court-ruling/167641/]

This week the Supreme Court will hear the case of For Women Scotland Ltd v The Scottish Ministers. FWS (a campaigning organisation) are arguing that statutory guidance issued by the Scottish Government about the effect of the Gender Representation on Public Boards (Scotland) Act 2018 is unlawful. The guidance says that a woman includes someone born male but who now has a gender recognition certificate describing them as female. 

The case is not really about the 2018 Act, which only applies in Scotland. It is really about the meaning of ‘male’ and ‘female’ in the Equality Act 2010. This is because the 2018 Act was originally held to have gone beyond the powers of the Scottish Government by specifying that all trans women were women. This adopted a definition of the protected characteristic of sex that went beyond the Equality Act 2010 in which sex and gender reassignment are treated separately. As a result of that case the Scottish Government issued new guidance saying that woman had the meaning given to it by the Equality Act, but went on to say:

In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.

FWS are now challenging this part of the guidance arguing that it is incorrect. Their application to have it struck down was rejected by the Court of Session and will now be heard by the Supreme Court.

So the question is this: when The Equality Act 2010 refers to sex – to the question of whether someone is male or female – is it limited to biological sex or does it also refer to someone with a gender recognition certificate (GRC)? In other words, is a trans woman with a GRC treated as being of the same sex as someone who is biologically female? 

The argument that the Scottish Government’s guidance is right to say that she is has the advantage of being short and straightforward. S.9(1) of the Gender Recognition Act 2004 says:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(emphasis added)

S.9(3) of the Act says that this provision is subject to provisions made in any other enactment, so the Equality Act 2010 could have expressly disapplied it – but did not. On that basis, the argument goes, the concept of sex in the Equality Act encompasses both the sex into which someone is born and also the sex that they are deemed to be once they have a GRC.

The arguments against this interpretation are long and complex. That doesn’t mean that they will fail. The Supreme Court would not have agreed to hear the case if they thought there was no point worth arguing. FWS has very helpfully made its written case publicly available. They don’t need to do this so it would be churlish to complain about the font it is written in or the extent to which it uses italics (less is more guys) – but reading it did make my head swim a bit.  It sets out a number of problems contradictions and anomalies that it says result from including individuals with a GRC as being members of the sex aligned with their gender identity.

I have to say that the problems that are relied on in the written case seem rather abstract and theoretical to me. I struggle to see how treating a trans woman with a GRC as a woman for the purposes of the Equality Act 2010 presents any real practical difficulty. 

Take direct discrimination for example. This depends not on the identity of the victim but the reason for the treatment complained of. It is direct sex discrimination to treat someone less favourably because they are a woman or because they are not a woman. But the Tribunal only has to decide what was going on in the mind of the discriminator. Whether the victim is actually a woman or not (and by what criteria you judge that question) doesn’t matter. The same goes for harassment. If there is unwanted conduct ‘related to’ the protected characteristic of sex or conduct of a sexual nature then that is enough if the conduct has the required effect on the victim. There is no need for a tribunal to decide whether or not someone with a GRC is either a woman or a man – the question does not arise. 

Indirect discrimination is slightly different. There we are looking at an unjustifiable ‘provision criterion or practice’ which places people who share a protected characteristic at a particular disadvantage. The question could arise as to whether a trans woman with a GRC shares the characteristic of being a woman with those who were born female. But it is hard to envisage a circumstance where the issue of whether such trans women should be counted as women would make a difference to the outcome. In their written submissions FWS argue:

For example, height requirements (such as used to be imposed for service in the police) would be likely to place women at a particular disadvantage. However, when men are included within the definition of woman, the nature of any actual disadvantage will inevitably be reduced (page 19)

The fact that the best example they can come up with is a condition that is no longer used is telling I think. But even if that requirement were still in effect I very much doubt that the whole population of trans women with a GRC would be sufficient to skew the statistics to the extent that women would no longer be disproportionately disadvantaged by a height requirement. 

Equal Pay raises an interesting question. To claim Equal Pay an employee must identify a comparator of ‘the opposite sex’. Suppose a trans woman with a GRC is paid less than a man. As I understand the FWS argument, she should not be able to claim equal pay because her male comparator would not be of the opposite sex. I have to say that the idea that a trans woman would be prevented from claiming in such circumstances strikes me as wrong. Surely if she has a GRC she should be accepted as being of the opposite sex of her male comparator? It is true that this means that a trans man with a GRC could not claim equal pay citing a man as a comparator – but would a trans man even want to bring such a claim?

What about occupational requirements? Part 1 of Schedule 9 of the Equality Act allows an employer to insist that a job should be done by a woman in circumstances where the nature or context of the work makes it an occupational requirement – and insisting on recruiting a woman is a proportionate means of achieving a legitimate aim. Suppose a man sought to challenge the employer’s use of that exception and argued that because a trans woman was given one of the available roles that meant that ‘being a woman’ was not really an occupational requirement? In theory I suppose the question of whether trans women counted as women under the Equality Act would then arise – but I really can’t see any Tribunal getting tangled up in that. Surely they would just say that irrespective of the legal definition of a woman, the employment of a trans woman in a role does not on its own show that being a woman is not an occupational requirement?

It would then follow that a trans man with a GRC could be lawfully excluded from a role reserved for women – but I’m not sure who would really find that objectionable. Imagine a trans man who has gone to the trouble of obtaining a GRC trying to get a job reserved exclusively for women and suing for sex discrimination when he is turned down. It just seems incredibly unlikely. The same principle would hold for shortlists for political parties or other forms of permitted positive action. 

Note that the Equality Act does allow an occupational requirement to exclude trans people when it is a proportionate means of achieving a legitimate aim to do so (Schedule 9, para 3). So if the employer thought that a job could only be done by a woman but could not be done by a trans woman and could justify that choice then that too could be lawful. Defining trans women as women would not make a difference to that argument.

The same is true for the provisions relating to single sex accommodation and facilities. These can be reserved for women but does that mean that such services must not exclude trans women with a GRC? The Court of Session pointed to provisions which allow discrimination based on gender reassignment in such services where that is a proportionate means of achieving a legitimate aim. FWS argue in their written case that the Court was wrong about that and that employers or service providers would not be able to make that distinction– but I have to admit that I can’t quite follow their argument. It’s at page 40 of their written case so have a look for yourself and see what you think. 

[Edit: I’ve just had another look at this and I think I get it now! – see the PS at the end of the post]

I do see a potential issue with the rules on associations. Schedule 16 of the Equality Act allows for associations to be restricted to people who share a protected characteristic. So a lesbian support group could lawfully exclude people who were not lesbians. FWS argues that a trans woman with a GRC who is attracted to women would have to be accepted as a lesbian if the Equality Act treated her as a woman. I think that is probably right – there is no exception in the Act allowing for gender-reassignment discrimination in such a case. But is that position obviously objectionable? I do not want to speak for others but I suspect that there may be disagreement among lesbians as to whether a trans woman attracted to women should be regarded as a lesbian or not.  I also very much doubt that the Supreme Court will want to be drawn into ruling on the legal definition of a lesbian.  

One issue that was relied on in the Court of Session relates to maternity discrimination. Section 18 of the Equality Act says that “a person discriminates against a woman if… in relation to a pregnancy of hers” the person treats her unfavourably (emphasis mine – obviously). This section (and the similarly worded S.17 which deals with non-work cases) clearly refers to the claimant as being a woman. But what if a trans man had a GRC and was pregnant? If the guidance issued by the Scottish Ministers is right, he would be a man rather than a woman and so, the argument goes, unable to claim pregnancy discrimination.

I want you to imagine the look on the Employment Judge’s face as you explain that your employer client was not guilty of pregnancy discrimination because the employee they dismissed for being pregnant had a gender recognition certificate which meant that they were not a woman and therefore barred from claiming. In its written case FWS says that this argument would have to succeed (pages 34/35). The Court of Session disagreed. with that reasoning, saying that what matters in that scenario is the fact of the pregnancy and the use of the term ‘woman’ in that context could be given a purposive interpretation so that a trans man with a GRC could still claim. My instinct is that the Court of Session is right about that. But in any event I suspect the Supreme Court would not want to make a definitive ruling on such a hypothetical case. 

And that, I think, may be a key point. We should remember that this case is about statutory guidance given by the Scottish Government about a Scottish Act dealing with gender representation on public boards. I struggle to see the Supreme Court being keen to engage in a lengthy legal analysis of hypothetical discrimination claims – unlikely to arise in practice – in order to decide whether that guidance is accurate or not. I think the most straightforward approach is to say that the guidance is lawful – because it is in accordance with the clear wording of the Gender Recognition Act and that although Parliament could have qualified that wording in the Equality Act it chose chose not to do so. If that means that there are some potentially difficult cases that may then arise in the interpretation of the Equality Act then we can wait for an actual case to crop up in real life before deciding the point.  

One of the really great things about the Supreme Court is that cases are livestreamed. I will certainly be watching (here) and it may be possible to get a sense of what the Court thinks as the arguments play out. It is also perfectly possible that as the argument unfolds I will realise that I have missed a key point that could affect the outcome.  If that happens I’ll write a postscript below.

Postscipt

As I mention above, in response to a comment below I have had another think about the issue of gender reassignment discrimination in relation to service provision.

Suppose a service provider objects to providing intimate care to a trans woman with a GRC. Could they object to doing so on the grounds of gender reassignment? Under paragraph 28(1) of Schedule 3 of the Equality Act they would have to argue that doing so is a proportionate means of achieving a legitimate aim. But their actions would have to relate to one of the following ‘matters’

(a)the provision of separate services for persons of each sex;

(b)the provision of separate services differently for persons of each sex;

(c)the provision of a service only to persons of one sex.

I think that FWS must be arguing that since the trans woman with a GRC would be deemed to be a woman, the service provider could not claim that refusing to serve her was something done in relation to the provision of a service only to persons of one sex.

I accept that there is something to that. But it is surely it would at least be arguable – if such a case arose – that the conduct at related to the provision of same sex services? It certainly does in the mind of the service provider. I am sure that any lawyer representing a service provider in such a case would mount a spirited argument to that effect. FWS, however, regards such an argument as completely impossible – which seems rather defeatist. On balance I don’t think this changes my overall view that the Supreme Court is unlikely to want to get entangled in ruling on such hypothetical cases – but we shall see.

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Fire and Rehire – Unintended Consequences of the Employment Rights Bill

Posted on November 15, 2024 by Darren Newman

The Employment Rights Bill is about to enter into the part of the Parliamentary process where the Government will consider amendments. This is not something it needs to do in order to ensure the Bill is passed. With a huge majority the Government does not need to worry about political opposition. Anyone who wants to advocate for a particular amendment needs to persuade the Government that it is genuinely a good idea. And there is no point in arguing against the grain of the Bill itself. You might think that abolishing the qualifying period for unfair dismissal is the wrong thing to do or that the Trade Union Act 2016 made a number of sensible reforms that should be kept in place. But there is no point in advocating for such positions – those ships have sailed. 

But there may be areas where the Government could be persuaded that the Bill as currently drafted will not achieve its aims or will have ‘unintended consequences’. Those two words are very powerful. If you want a Government to change course you need to give it a ladder to climb down and ‘unintended consequences’ do just that. The policy is right, the Government will say, but the current draft runs the risk that there will be unintended consequences that will undermine that policy and so a change needs to be made. 

As it happens, I think I have a genuine example of unintended consequences that merit an amendment to the provisions on fire and rehire. I’ve written about those provisions already, but in brief the Bill will make it automatically unfair to dismiss someone for refusing to agree to new terms and conditions or in order to replace them with someone (or rehire the same person) doing substantially the same work but on different terms. 

In the policy paper ‘Labour’s Plan to Make Work Pay’ we read this:

It is important that businesses can restructure to remain viable, to preserve their workforce and the company when there is genuinely no alternative, but this must follow a proper process based on dialogue and common understanding between employers and workers. 

So how is that policy translated into the Bill? An exception is created (see page 33, line 11 of the Bill) if:

the reason for the variation was to eliminate, prevent or significantly reduce, or significantly mitigate the effect of, any financial difficulties which at the time of the dismissal were affecting, or were likely in the immediate future to affect, the employer’s ability to carry on the business as a going concern or otherwise to carry on the activities constituting the business, and 

in all the circumstances the employer could not reasonably have avoided the need to make the variation.

I argued in my previous post that this was a very narrow exception. Having spoken to many employers since about the circumstances in which they may need to seek a variation of contract I think it is clear that the exception is simply too narrow. Consider these scenarios:

  • an employer is a contractor providing after-school activities to a local authority. When the contract comes up for renewal the contractor is told that under the new contract those activities will be required at other times of the day including mornings and lunchtimes.
  • an employer is providing support services running Monday-Friday and the client informs them that this needs to change so that the services are also available at weekends
  • an employer undertakes a new contract handling personal data which for security reasons cannot be accessed by employees working at home so that those working remotely will have to come into the office to work
  • A manufacturing firm invests in new machinery that will increase productivity but only if shift patterns are changed so that the plant runs seven days a week rather than five.  

You get the point. In all of these cases the employer would have a strong case for seeking changes to contractual terms. Not necessarily to make them worse, but changing the provisions on working time or location to meet the new requirements of the business. But none of these reasons for seeking the employee’s agreement to a variation would meet the test of ‘financial difficulties’ that would ‘in the immediate future’ affect the employer’s ability to operate as a going concern. 

You might look at those scenarios and think of alternative ways in which the employer could achieve its objectives. But suppose there was no realistic alternative? The Bill as currently drafted would make it automatically unfair to dismiss any employees who did not agree to the change. What is a law-abiding employer to do in those circumstances? Would a contractor have to just lose the contract and make employees redundant? That would not be straightforward as a new contractor would probably inherit the employees under TUPE – on their current terms and conditions – and face exactly the same problem. Would the manufacturer simply have to make do with its current machinery and not seek to improve productivity?

These are the unintended consequences of confining the exception to cases of ‘financial difficulties’. A sensible amendment would be to add ‘technical or organisational reasons’ to the exception. 

An amendment along these lines would not undermine the overall impact of the new right. Dismissal would still only be lawful when the employer ‘could not reasonably have avoided’ the need to make the variation. This test is significantly more restrictive than the current test of reasonableness in unfair dismissal cases. The Bill would still contain provisions saying that even if the exception is met the Tribunal must consider the extent to which employee representatives were consulted about the change and what the employer was offering the employee in return for agreeing to the change (page 33, lines 25-40). 

Even with the change that I am suggesting the provisions on fire and rehire will amount to a significant new right that will prevent employers from forcing through a change in terms and conditions except in cases where there there is no realistic alternative. Limiting the exception to financial difficulties will result in severe unintended consequences that I think the Government will ultimately want to avoid.  

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The Employment Rights Bill – Closing the ‘Woolworths’ Loophole

Posted on October 21, 2024 by Darren Newman

In my last post I was trying to make sense of 11 pages of densely-worded text in the Employment Rights Bill. For this post I have set myself the easier task of explaining the implications of removing just three words from the law on collective redundancy consultation. 

Clause 23 of the Bill removes the words ‘at one establishment’ from S.188 of the Trade Union Reform and Employment Rights (Consolidation) Act 1992. To understand why this is important we need to look at what S.188 does. 

Section 188 of the 1992 Act provides that when an employer is engaging in a large-scale redundancy exercise, it must first consult with a trade union or other employee representatives with a view to reaching an agreement about ways to avoid, reduce or mitigate the effect of the redundancies that are being proposed. The consultation must start at least 30 days before the first dismissal takes effect – or 45 days where 100 or more dismissals are proposed. A failure to consult in accordance with the statutory requirements may result in those employees who are dismissed being given a ‘protective award’ of up to 90 days’ pay. That award is quite separate from any compensation for unfair dismissal and is intended to be punitive. Employees who have lost nothing at all as a result of being dismissed – who have walked straight into a better paying job and pocketed a redundancy payment – will still be entitled to a protective award if the employer has failed to consult. 

The duty to consult is (currently) triggered by the employer proposing to dismiss as redundant 20 or more employees at one establishment over a period of 90 days or less. Over the years, the courts have had some trouble with the concept of an ‘establishment’. The word is taken from the EU Collective Redundancy Directive which we obviously no longer need to worry about, but it has always been a niggling problem that there isn’t a clear definition of what an establishment is. 

The amendment made by the Employment Rights Bill is prompted by the closure of Woolworths in 2011. The collective consultation procedures were held not to have been followed but not all of the employees were given a protective award. About 4,500 of them missed out because they worked in branches of Woolworths that had fewer than 20 employees. It was held that each branch was an establishment in its own right and so the duty to consult only applied where 20 or more employees were being dismissed from a particular branch. You can see why many people would regard that as an unsatisfactory result. 

The effect of the Employment Rights Bill in removing the words ‘at one establishment’ will be that future closures of multi-site businesses will require consultation whenever the total number of redundancies across the whole business reaches 20 or more over a 90-day period. That would mean that in a future ‘Woolworths’ case all of the affected employees would be included in the consultation, not just those employed at sites of 20 or more.  To that extent we might regard the change as merely closing a loophole. But there are also unintended consequences that large-scale employers are going to struggle with. 

Imagine a nationwide company with sites across the UK. It proposes to restructure the sales team in its Southampton branch with the result that there will be 12 redundancies. The employer will have to behave reasonably in selecting the employees to be dismissed and will have to engage in a consultation process to avoid any findings of unfair dismissal – but the specific duties under S.188 will not apply because the total number of redundancies is less than 20. If at around the same time the company is merging two offices in Wales with the loss of a further 7 jobs then the nothing changes as the threshold will still not have been reached. But if the Aberdeen office then decides to reduce the number of its admin staff then the employer will find that it is proposing to dismiss 20 or more employees. If the dismissals are spread over a period of no more than 90 days then the duty to consult will apply. 

The problem for the employer is that each location is engaged in a completely separate redundancy exercise that may not be coordinated in any way. Does it have to carry out one single consultation exercise or can it carry out three separate ones? What if the 20 employee threshold is only triggered by the last proposal and some dismissals have already taken effect? Does that mean that all the dismissed employees will be entitled to a protective award? Section188(3) says that where consultation has already started in respect of some employees then their numbers are not treated as part of the total. But if the initial proposal was for just 12 redundancies then collective consultation would not have started.  So as a result of an office reorganisation in Aberdeen the employer may find that it has already acted unlawfully. Is that fair? 

These issues could in theory arise under the current law but only if the employer is conducting a series of uncoordinated redundancy exercises at the same establishment. But once redundancies can be aggregated across different establishments in different parts of a business and spread over the whole country, then these are certainly questions that many large employers will need to consider. Some of the case law that follows might lead to some surprising results. 

My suggestion would be an amendment providing that genuinely separate redundancy exercises – not driven by a common underlying business reason – should not be aggregated in this way. The Woolworths loophole would still be closed, but employers would not be caught by surprise when a series of separate redundancy exercises happened to occur within the same 90-day period. 

On the other hand, the Government might well believe that nudging employers towards consultation is a good thing. One consequence of the removal of the ‘at one establishment’ requirement is that large employers may feel obliged to engage in formal collective consultation when they are proposing fewer than 20 redundancies – just in case further redundancies occur elsewhere in the business. I don’t think this Government would see that as a bad outcome.

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The Employment Rights Bill – The Right to Guaranteed Hours

Posted on October 16, 2024 by Darren Newman

The right to guaranteed hours is the mechanism the Government has chosen to ‘ban’ zero hours contracts. It takes up 11 densely worded pages in the Employment Rights Bill inserting a new Chapter into Part 2A of the Employment Rights Act 1996. It is not an easy read. One reason for this is that after you have slogged through it you emerge little the wiser. All of the crucial details are left to be ‘specified’ by future Regulations. As a result it is impossible to tell how significant this new right will be and how far it goes towards ‘banning’ zero hours contracts. 

All we can see in these eleven pages of text is the overall structure and framework of the new right. What follows is an explanation of how I understand that structure. I think I have understood it, but it is quite possible that I have missed something important or got confused somewhere along the way. I’m happy to be corrected, but slightly sorry for anyone with enough time on their hands to correct me. 

So here goes. 

Qualifying workers

In essence, these new provisions will oblige employers to offer contracts with guaranteed hours to ‘qualifying workers’ whose working pattern over an as yet to be specified reference period reaches an as yet to be specified threshold. Qualifying workers include zero hours workers – hourly paid workers for whom there are no guaranteed hours –  or workers whose guaranteed hours fall below a level set by the Secretary of State in Regulations. 

The number of hours at which that threshold is set will obviously be crucial. The Next Steps document says the right will apply to workers with a ‘low’ number of guaranteed hours but does not give any indication of what ‘low’ means. Does it mean just two or three hours? If so, then this new right will not be very significant. Does it mean sixteen hours or even more? If so, then employers will have to constantly review the hours that they are offering workers to see if they need to translate that working pattern into a contractual offer. 

The new right is based on a reference period that will be set out in Regulations. The Next Steps document talks about a 12-week reference period and this has been an established part of Labour’s policy since the beginning. However, the Bill itself does not set the reference period. I don’t think this reflects second thoughts on the part of the Government so much as a desire to reserve the option of adjusting the reference period over time depending on how the new right operates in practice. For now, I think it is safe to work on the basis that the reference period will be set at 12 weeks. 

An Offer of Guaranteed Hours

A worker will qualify for an offer of guaranteed hours if over the course of the reference period they work a number of hours which is in excess of the minimum number of hours under their contract and do so with a level of regularity that will be set out in Regulations. 

So, for example, the Regulations could apply to workers whose contract guarantees no more than 8 hours a week and an offer of guaranteed hours could be required if over the 12 week period the worker works in excess of 8 hours in at least 6 of those 12 weeks. Or, of course the Regulations might say something completely different.

Where the duty is triggered the employer must make an offer to the worker either of a new contract or of a variation to their existing contract. The offer must ‘reflect’ the total number of hours worked in the reference period.  So if the worker worked 240 hours over the 12 week reference period then the offer would have to ‘reflect that’. Exactly what that means, you will be astonished to learn, is something that will be set out in Regulations. 

Once the offer has been made and assuming it is accepted then the cycle begins again. If the worker still qualifies because of the ‘low’ number of hours that are guaranteed then there will be another reference period and another potential obligation to offer a contract to reflect hours worked in excess of the new guaranteed minimum. This continues – essentially a ratcheting effect – until the worker no longer qualifies because their guaranteed hours are no longer ‘low’. 

We then get some quite complicated (!) provisions preventing the employer from offering the varied or new contract for a limited term unless it is reasonable to make the offer on that basis. There is also the power to make Regulations specifying when the offer needs to be made, what form it should take and what other information the employer needs to give to the worker.

The offer that is made should not be less favourable to the worker in relation to terms other than hours and time of work. For example, the employer couldn’t make an offer that guaranteed the worker a certain number of hours but reduced the hourly rate of pay.  The exception is that if it is a ‘proportionate means of achieving a legitimate aim’, the offer may include less favourable individual terms provided that it is ‘overall’ no less favourable than the terms on which the worker worked during the reference period. 

The employer’s duty to make an offer ends if the worker resigns (or terminates the working arrangement if they are not an employee) or if the employer reasonably terminates the contract / arrangement for a  qualifying reason. That is then defined in the same terms as the ‘potentially fair’ reasons for dismissal that we are used to in unfair dismissal cases (conduct, capability, redundancy etc). If the termination happens after the offer but before the offer is accepted (the ‘response period’) then it is treated as having been withdrawn.

Accepting the Offer

A feature of the right to guaranteed hours is that it operates as an obligation on the employer to make an offer which then has to be accepted by the employee. This contrasts with the rather more straightforward approach in the Fixed Term Employees Regulations under which the contract simply becomes permanent once the relevant conditions are met. 

Because of this approach we have to have a provision (about a page and a half) dealing with the worker accepting or rejecting the offer during the ‘response period’. In a startling move, the duration of the response period is left to Regulations to determine. The Bill then goes into detail about what happens if the contract or arrangement ends before the end of the response period – it seems that the offer still stands unless the employer has fairly terminated the contract / arrangement.

The last part of these provisions are pretty standard – giving the worker the right to bring a Tribunal claim if the employer is in breach of its obligations with the Tribunal being able to make a declaration and order compensation if the claim succeeds. 

And that’s all there is to it.

Will this Work?

The overall shape of the new right seems to make sense. But it is hugely complex and it will be quite a challenge to translate the legislation into guidance that employers – particularly small businesses – will be able to follow. 

There are also some gaps. How, for example, does the Government set the various thresholds that will need to be specified without giving employers a target to aim at? If the Regulations say an offer must be made if the worker works more than 8 hours in at least six weeks of the reference period (for example) then what is to stop the employer from ensuring that the hours offered are never quite as regular as that? Will the new right create an incentive for employers to restrict working hours or ensure that workers never develop a regular pattern of work? 

I also don’t see how the new right will cope with seasonal work or other surges in activity. If someone is recruited in October and the next 12 weeks are really busy with lots of work offered, will the employer really have to offer a contract guaranteeing consistent hours after the Christmas rush is over? Perhaps the limited permitted use of fixed-term contracts could help here, but I don’t quite see how that could work in practice. 

These issues might be addressed as the Bill progresses, but there is a danger that the Government will wave away concerns by promising that they will be dealt with in the subsequent Regulations.

And that of course is my central objection. I don’t criticise the Government for not yet knowing how this new right can be made to work. That’s OK. The idea of banning zero hours contracts may have been Labour Party policy for almost a decade, but they have never before had to translate that political goal into a workable legislative framework. It is early days. If they hadn’t made the absurd commitment to introduce legislation inside the first 100 days then they could simply have announced that they would begin a formal consultation in the autumn on how to achieve their aim with a view to legislating sometime in 2025. That would be the sensible way to implement a policy that is complex and difficult and needs to be thought through carefully.

As it is, in order to meet a meaningless 100-day target they will force Parliament to spend months slogging through empty provisions before eventually launching a consultation on the parts of the policy that really matter. The results will then be presented to Parliament in the form of Regulations that will receive next to no legislative scrutiny and which cannot be amended. This is not a recipe for good lawmaking. It would be better if the Government just scrapped the measures currently in the Bill and undertook to legislate separately once they have consulted fully and have a clearer idea of what their actual policy will be. 

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The Employment Rights Bill – Unfair Dismissal as a Day-One Right.

Posted on October 11, 2024 by Darren Newman

One of the features of the Employment Rights Bill that has attracted particular attention is the abolition of the qualifying period for unfair dismissal making it a day-one right (see Schedule 2 of the Bill). This is something that a Government already has the power to do by statutory instrument, so in theory there is no need to include the measure in the Bill at all. If they wanted to, the Government could abolish the qualifying period by Christmas.

But they don’t want to. Recognising the impact that the change will have and the concerns that the business lobby have expressed the Government has actually committed (in a Next Steps document published alongside the Bill) not to introduce the change before the autumn of 2026 – more than two years after the election. Essentially this amounts to a long transition period with the effective qualifying period reducing over time. Employees recruited today will qualify for unfair dismissal about two years from now. Employees recruited in a year’s time will qualify after about one year’s service – and so on. 

Once the change is made, it is clearly intended to be permanent. Section 108 of the Employment Rights Act 1996, which sets out the current qualifying period, is repealed. A future Government will not be able to issue regulations increasing it because there will be nothing to increase. They would need to introduce primary legislation which – as we are seeing – takes a great deal of time and effort. 

I have suggested a few times that it is wrong to refer to the abolition of the qualifying period as making unfair dismissal a ‘day-one’ right. If there is no qualifying period then employees who have been recruited and have a contract of employment but who have not yet started work could also qualify. Well, the Bill takes care of that. A new S.108A provides that an employee cannot claim unfair dismissal unless they have started work. So if you manage to dismiss an employee before they cross the office threshold on the morning of their first day then you are safe. There are the expected exceptions here for ‘automatic’ unfair dismissal where the reason for dismissal is things like union membership, whistleblowing or asserting a statutory right etc. 

More contentious is the provision for a probationary period. The Bill doesn’t actually use the word probation – but it does refer to an ‘initial period of employment’. It creates a Regulation making power that allows the Secretary of State to provide for a different standard of reasonableness to apply to dismissals that take place during that initial period. This includes situations where the employer gives notice during that period which expires up to three months after the initial period has ended. 

The duration of the initial period of employment (shall we call it the IPE?) is not set out in the Bill – that is something for the Secretary of State to specify in the Regulations themselves. The Government has indicated in its Next Steps document that it currently favours a 9 month period. In the real world six months is much more common – but many employers do allow for three month extensions to probation so I suppose 9 months is not a figure simply plucked from the air. 

Even if the dismissal does take place during the IPE it will still be possible for the employee to claim unfair dismissal. The employer will have to show that the reason for dismissal is either related to the employee’s conduct or capability, is because the employee is subject to a statutory ban (e.g. not entitled to work in the UK, or disbarred from the profession)  or is ‘some other substantial reason related to the employee’. 

Importantly, a dismissal for redundancy is not included in this list. This means that employees who are made redundant on day one can claim unfair dismissal in the same way as any other employee and the same test of fairness will apply. 

The reference to some other substantial reason (SOSR) is a little bit different from the version we see elsewhere. In a normal unfair dismissal claim the employer has to show that the reason for dismissal is “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (S.98(1)(b) ERA 96). But the special rules covering the IPE will only apply if the reason is ‘related to the employee’ which suggests the something like a dismissal connected with a business reorganisation would not be covered, though a dismissal following a breakdown in working relationships would. This is obviously a deliberate choice as Regulations can specify whether or not particular reasons should be seen as relating to an employee.  There is also no suggestion that the reason in itself needs to be one that is ‘capable of justifying dismissal’ – which is usually an important part of the SOSR test. This difference might be deliberate or it might just be something that will be amended as the Bill progresses. I’m intrigued by what the Government is thinking about here. 

So how easy will it be to dismiss employees during the IPE? The Bill doesn’t say. The Regulations introduced by the Secretary of State can ‘modify’ the test of reasonableness when assessing an unfair dismissal claim. In theory they could only give a slight tweak – merely requiring the Tribunal to take the fairness of any probation period into account for example. Or they could apply a completely different reasonableness test, perhaps requiring a specific procedure to be followed but providing that a dismissal should otherwise be presumed to be fair. 

In the Next Steps document the Government says. 

As a starting point, the Government is inclined to suggest [a fair procedure] should consist of holding a meeting with the employee to explain the concerns about their performance (at which the employee could choose to be accompanied by a trade union representative or a colleague). The Government will consult extensively, including on how it interacts with Acas’ Code of Practice on Disciplinary and Grievance procedures. 

I’m still worried that the rules on probation will turn into something reminiscent of the statutory dispute resolution procedures (if you don’t know what they were, ask someone who has been in HR or employment law for 20 years and watch the corner of their eye twitch as they remember). But this is an argument for next year.

In the meantime, yes the Government is legislating to make unfair dismissal a day one right – but not for a while yet. Employers will be able to operate a probation period but we don’t yet know how long for or what they will need to do to ensure that any dismissal during that period is fair. 

That all seems nice and straightforward. Do I have to look at zero hours contracts now or can I find something else to write about first? 

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Fire and Rehire under the Employment Rights Bill

Posted on October 10, 2024 by Darren Newman

There is a lot to say about the Employment Rights Bill which was introduced in Parliament earlier today.  In many ways it really is transformative – its also long and detailed. My plan is not to write one big summary of it (dull) but to highlight individual reforms that I think are interesting or important. 

I’m starting with Clause 22 on fire and rehire  because as well as being both interesting and important – it is also simple and easy to grasp.  I have to admit that I can’t say the same for the proposals on zero hours contracts – but that is an issue for a future post. 

The provisions on fire and rehire frankly go much further than I had expected. Here is what Labour’s Plan to Make Work Pay said before the election: 

Labour will end the scourges of ‘fire and rehire’ and ‘fire and replace’ that leave working people at the mercy of bullying threats. We will reform the law to provide effective remedies against abuse and replace the inadequate statutory code brought in by the Government, with a strengthened code of practice.

That all sounded a bit soft to me. Like they weren’t really going to ban the practice, just strengthen the Code of Practice (the current one is very vanilla) and limit ‘abuse’. 

What we actually get is a provision – inserting a new S.104I into the Employment Rights Act – that says that it is unfair to dismiss an employee if the principal reason for dismissal is either that the employee refused to agree to a variation of contract sought by the employer or to enable the employer to recruit another person (or rehire the employee) under new terms but with substantially the same duties. 

That is essentially a blanket ban on the practice of fire and rehire / dismissal and reengagement. It is (will be) automatically unfair to dismiss an employee for refusing to agree to a variation in contract. Once you have agreed terms with an employee, you are stuck with them. You cannot force through a change. Nor can you skip the proposed variation and just replace one employee with another on worse terms. Both practices will be automatically unfair.

There is an exception. The Government says in a ‘Next Steps’ document that businesses will be able to ‘restructure to remain viable’ but as the Bill is drafted strikes me that this is a very narrow exception. 

Under the new provision, for a dismissal to be lawful the employer has to show that it was in ‘financial difficulties’ (no other kind will do) that would affect its ability to carry on the business. It must also show that it could not reasonably have avoided the need to make the variation. As I read it, the variation needs to be a last resort in the face of an existential threat to the employer’s business. That is a major shift from the current position where the decision need only be within the range of reasonable responses. I’m sure lots of employers will want to argue that their particular case meets the kind of ‘financial difficulties’ that are envisaged by the Bill, but I really think the exception is intended to be a very narrow one. I would not like to be the lawyer advising an employer that its situation allowed for dismissal and reengagement.

The exception is so narrow that I think many employers, in the private sector at least, will seek a way around it. One tactic might be an increasing reliance on variation clauses. These can allow an employer to vary a contract without seeking an employee’s agreement because that agreement is essentially baked into the contract itself. They would have to be careful not to operate these clauses in a way that undermined trust and confidence, as that could lead to a constructive dismissal claim. But otherwise the case law suggests that a clearly worded variation clause can be relied on even for changes that are detrimental to the employee. 

Before employment lawyers start brushing up their model variation clauses, however, I suspect that as the Bill goes through Parliament there will be some debate as to whether an amendment is needed to close this loophole. But even if that doesn’t happen, this is still a significant new right that will have a big impact on how employers approach restructuring and redundancy. 

There may be more to come. The Next Steps document says:

As key remedies to end this practice, we are committed to consult on lifting the cap of the protective award if an employer is found to not have properly followed the collective redundancy process as well as what role interim relief could play in protecting workers in these situations. 

Neither of these measures are in the bill itself as far as I can see. instead they are matters that may be consulted on separately. Interim relief – currently used mainly in whistleblowing cases – allows a hearing at very short notice at which the Tribunal can issue a ‘continuation of contract order’ to ensure that the employee continues to be paid while the matter is litigated. I can see why the Government might want to extend it to situations where employees are being threatened with dismissal unless they agree new terms.

But lifting the cap on the protective award seems an odd idea. This is the sum paid to employees who are dismissed when the employer has not complied with its collective consultation obligations under the Trade Union Reform and Employment Rights (Consolidation) Act 1992. It is currently set at a maximum of 90 days’ pay and that is taken as the starting point for any calculation – with the award being reduced to reflect the extent to which the employer has engaged in consultation. Removing the 90-day cap makes no sense to me because Tribunals would have no benchmark to use in calculating the award. It is punitive in nature and not based on any losses the employee might have suffered.  Still, if the Government wants to consult on that we can all weigh in when it does so. 

There will be a lot of debate following the Bill’s publication about how much the Government has watered down its proposals or caved in to the business lobby. But let’s be clear. On the issue of fire and rehire this is a big win for trade unions who have long opposed the practice. To all intents and purposes, the Employment Rights Bill makes fire and rehire unlawful. 

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Probation Periods and Unfair Dismissal

Posted on September 19, 2024 by Darren Newman

The Financial Times reported last night that 

Companies will be able to keep new hires on probation for up to six months under a compromise Labour plan despite an election pledge to give employees “day one rights”

It seems there has a been a ‘lot of back and forth’ between Angela Rayner and Business Secretary Johnathan Reynolds about how long probation periods should be with the latter favouring a longer period and the Deputy PM preferring an even shorter one. A Whitehall source is quoted as saying “its a decent compromise”

Personally I am surprised that ministers have spent any time at all thinking about this. Six months is – by some margin – the most common probationary period I have come across. Encouraging employers to operate a longer period would hardly seem in keeping with the principle of day-one rights and a shorter period which undercut arrangements already in place and would have struck many businesses as unfair. If a probationary period is going to be provided for in the forthcoming Employment Rights Bill, then six months is the obvious duration to go for. 

Back in September last year I predicted that Labour would probably end up introducing a qualifying period of six months. Since that could be done by Regulations (see this post) it would be a quick and easy change and would reflect most probationary periods already in place. 

But it does not look like this is what Labour is proposing. Unfair dismissal will become a day-one right – the manifesto is quite clear on that – but there will be provisions specifically dealing with dismissals during a six month probation period. 

The big question is what the position during probation will be. I can think of a number of options. 

Option 1 – If an employee is taken on with a probationary period then any dismissal during that period will be held to be fair.

Option 2 – Provided any dismissal is shown to be for the reason of capability or conduct then a dismissal during the probationary period will be held to be fair.

Option 3 – In deciding the fairness of a dismissal the Tribunal will be required to take into account the fact that the dismissal took place during a probationary period.

Option 4 – A specific procedure will be set out for the operation of a fair probation period and the fairness of any dismissal will depend on whether or not the employer has followed that procedure. 

Personally I would go for Option 3. It would be easy to draft (Johnathan Chamberlain of Gowling WLG has helpfully shown how) and would allow for common sense. Option 1 is really no better than just having a six month qualifying period and Option 2 would deem blatantly unreasonable dismissals to be fair. 

Option 4 would be an abomination. Anything but Option 4. I shouldn’t even have suggested it in case someone reads it and thinks it’s a good idea. If Option 4 happens I will stand outside Parliament with a loudspeaker like an employment law version of Steve Bray. Those of us who remember the statutory dispute resolution procedures will shiver at the prospect of Option 4. Forget I mentioned it. 

Option 3 seems to me to be the way to go. It fulfils the manifesto commitment because it clearly makes unfair dismissal a proper day-one right while allowing employers to assess employees during probation and make a reasonable decision as to whether they should be kept on or not. The Financial Times quotes Matthew Percival of the CBI as calling for ‘only a light touch approach’, but in unfair dismissal cases a light touch is already baked into the test of reasonableness. I don’t think it is too much to ask employers to behave reasonably when operating probation periods. It is easy enough to see how that would work. Tribunals would be likely to look for

  • transparency about the process,
  • reasonable communication and an opportunity to improve
  • a decision based on an honest belief that the employee is unsuited to the work
  • reasonable grounds to back up that honest belief

Specifically directing Tribunals to take probation into account may not be strictly necessary – they would do that anyway – but there is nothing wrong with adding something to that effect in the test of unfair dismissal. It has been done before. One thing I particularly like about the wording that Johnathan Chamberlain came up with is that he added the reference to probation immediately after a requirement that Tribunals take into account the ‘size and administrative resources of the employer’s undertaking’. Those words were added by the Employment Act 1980 soon after a new Conservative Government came into power. Giving tribunals a bit of a steer by requiring them to look at particular factors, but without undermining their ability to make a judgment about fairness, has a long history. 

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Labour’s new right to a four-day week

Posted on August 30, 2024 by Darren Newman
Screenshot 2024-08-30 at 12.57.39

So a story seems to have exploded over the the course of the day that the Government is going to give workers the right to work a compressed four-day week. They aren’t. But they might be about to strengthen a right that already exists.

What these press stories are about is the ‘right to request flexible working’. This was introduced by the Employment Act 2002 and was originally aimed at employees with child-care responsibilities wanting to work part-time. Over the years it has been expanded so that it is a right that now applies to all workers who want to change their hours of work – irrespective of their reason for doing so. 

The reference to flexible working is a bit of a misnomer really. The key section of the Employment Rights Act actually refers to a right to request a contract variation. Essentially a worker can ask the employer to make a change to their contract relating to the hours they are required to work, the times they are required to work or to allow them to work from home. When a request is made under this section the employer must ‘deal with the application in a reasonable manner’. If the application is refused it must be refused for one of a number of listed business reasons and the decision must not be based on incorrect facts. 

So if an employee asks to be allowed not to work on Fridays, the employer could refuse that request on the grounds that Friday is actually their busiest day – but if it does so then it must be true that Friday is their busiest day. The worker could also ask to work a four-day week (whether under compressed hours or otherwise) or for that matter a three-day week or a two-day week. A worker could ask to work nothing but Sunday mornings if that’s what they want. Each of these would be a valid request and the employer would have to deal with that request in a reasonable manner.

Crucially, however, the employer’s refusal does not have to be a reasonable one. If the employer refuses the request because of the additional costs involved, there can be no argument that the costs are small enough that a reasonable employer should absorb them. The employer is required to be sincere in its reasons for refusal – but does not have to be reasonable. The worker can ask to work compressed hours but the employer can pretty easily say ‘no’.

In 2019 the Conservative Party manifesto promised to change the law, saying: 

We will encourage flexible working and consult on making it the default unless employers have good reasons not to. 

What that turned into was the Employment Relations (Flexible Working) Act 2023 which tweaked the procedure for making a request. Separately, the Government also made it a a ‘day one’ right. But the reforms did not do anything to change the grounds on which the employer could refuse a request or to introduce a requirement for any refusal to be reasonable. 

Labour’s proposals for employment say they will act by: “making flexible working the default from day one for all workers, except where it is not reasonably feasible.”

Love the use of the word ‘default’ there – a deliberate call-back to the 2019 Tory manifesto. The trouble is we still don’t have a clear idea of what it means. My assumption is that the law will be changed to raise the threshold of reasonableness – so that it is harder for an employer to refuse a request.  But I’m happy to wait until a Bill is published to see what is actually intended. One thing I am sure about however. Whatever the new Bill says it will not create a specific right to ask for a four-day week – whether that is a move to part-time working or compressed hours.

Workers already have that right and have had it for years.

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