At the time of writing, it is not clear exactly when the Employment Rights Bill (ERB) will become law. This is due to ongoing parliamentary 'ping-pong' between the House of Commons and the House of Lords over certain provisions of the ERB.
Earlier this week the House of Lords voted but still did not agree with the House of Commons, on several key sections of the ERB. These included continuing to insist on unfair dismissal rights being acquired after six-months service, rather than on 'day one', an opt out to receiving guaranteed hours offers, and to have regard to seasonal work requirements, resisting the removal of the requirement of a turnout of at least 50% for ballots on industrial action and disagreeing with the proposal that there is an automatic opt-in to a trade union's political fund for its members. These issues will now return to the House of Commons, but the longer the issues in dispute take to resolve, the more likely it is that the ERB's proposed implementation timings will be adversely affected.
However, last month the Government launched four consultations on measures being introduced under the Employment Rights Bill (ERB). Views are being sought from businesses, workers, trade unions and other interested parties on how the ERB reforms will work in practice. These are in relation to bereavement leave including pregnancy loss, enhanced protection from dismissal for pregnant women and new mothers; and on the right of trade unions to access workplaces and the duty to inform workers of the right to join a union.
Leave for bereavement including pregnancy loss
The ERB introduces a new statutory day-one right to unpaid bereavement leave for employees who experience the loss of a loved one, including pregnancy loss before 24 weeks, which is not covered by existing statutory rights to bereavement leave. The right is to a minimum of one week's unpaid leave and a period of at least 56 days for the employee to take the leave. The consultation invites views on:
- who should qualify for the leave including and the relationship between the employee and the person who passed away
- types of pregnancy loss in scope
- length of leave and flexibility on when it's taken
- notice and evidence requirements to take the leave
The closing date for the consultation is 15 January 2026, and the measures are due to be implemented during 2027.
Enhanced dismissal protections for pregnant women and new mothers
Currently it is currently automatically unfair to dismiss a woman because of pregnancy, and employees who are pregnant, on maternity leave, or for up to 18 months from the child's birth, have additional protection in redundancy situations and must be offered any suitable alternative employment ahead of other employees. The consultation is seeking views on how to strengthen protection from unfair dismissal for pregnant women and new mothers with the presumption that it is unfair to dismiss a pregnant woman or new mother, except in specified circumstances. Options are:
- that the existing reasons for dismissal should remain as they are for pregnant women and new mothers, but with a new stricter test of fairness
- the Government could reduce, restrict or remove some of the existing five fair reasons for dismissal where an employer wishes to dismiss a pregnant woman or new mother. For example, it would only be permissible to dismiss for gross misconduct (rather than the broader misconduct), remove dismissal for poor performance during a protected period or dismiss for redundancy where there is imminent financial difficulty and there is no alternative but for the employer to dismiss (similar to the fire and rehire threshold).
The consultation is also seeking views on whether the protected period should run from when employee notifies employer of pregnancy to 18 months after birth, whether it should be a day-1 right or only apply after a probationary period and whether other types of family leave should mirror the protections being proposed for pregnant women and new mothers.
The closing date for the consultation is 15 January 2026, and the measures are due to come into force in October 2027.
Duty to inform workers of right to join a trade union
In order to raise awareness of the right to join a trade union, the ERB introduces a new duty on employers to give a written statement to workers informing them at the start of their employment, and at other times during their employment, of their right to join a union. The consultation is seeking views on the statement's contents (perhaps provided with written particulars of employment) and how frequently (for example provided annually) so that employers have the flexibility to choose the approach that most suits the needs of their workers and workplace.
Right of trade unions to access workplaces
Currently unions do not have an independent right of access to workplaces so where there is no voluntary agreement with an employer, they can only act through individual members in a workplace, which if membership is low, can impact on a union's ability to negotiate, resolve disputes, represent workers and facilitate collective bargaining. The ERB will establish a statutory right for unions to access workplaces physically and digitally. Where employers and unions already operate voluntary access agreements, there will be no change.
In its consultation the Government is inviting views on:
- the right to access process and its terms such as physical, digital or online access to workers, and whether during working hours
- how the Central Arbitration Committee (CAC) will resolve disputes
- appropriate enforcement mechanisms and sanctions including possible fines for breaches.
The closing date for both trade union related consultations is 18 December 2025. This would be followed by a consultation on a new statutory Code of Practice with practical guidance for unions and employers. The new rights are due to be implemented in October 2026.
Future consultations
The government has indicated that due to specific provisions of the ERB still going back and forth between the House of Commons and the House of Lords consultations on areas such as those relating to day one unfair dismissal rights and the consequent statutory probation period, guaranteed hours contracts and changes relating to trade union balloting and recognition processes are likely to be delayed.
