Stephen Miller and Graham Mitchell from Clyde & Co (Scotland) LLP provided a helpful primer on several aspects of employment law, including offering some clarity on key aspects of the incoming Employment Rights Bill and explaining the new duty to prevent sexual harassment.

Employment Rights Bill

The Employment Rights Bill provides plenty of changes for employers to get their heads around, some of which have the potential to significantly impact local authorities. Mitchell offered some reassurance that “none of this is coming in soon”. For example, changes to unfair dismissal will not come into effect until autumn 2026, giving employers time to prepare.

You can read Clyde and Co’s briefing on key points in the new bill here. Mitchell explained the areas local authorities particularly need to watch out for as follows:

• Unfair dismissal and probationary periods: Employees will have a right not to be unfairly dismissed from day one, ending the current two-year qualifying period. Probationary periods or ‘initial periods of employment’ (the government suggests nine months) will allow employers to assess new hires, with a lighter touch dismissal process during this time. The government is currently consulting further on this. Mitchell suggested issues may arise around what the standard of reasonableness is to let someone go and around the suggested procedure (also under consultation), which may become too drawn out, risking employers running out of time in the probationary period. He advised HR professionals to support managers to actually manage performance, note things down and keep on top of under-performing or potentially unsuitable employees from the start, to try and ensure dismissals happen within the initial period of employment.
• Ending fire and rehire: “This is one of the most radical bits of the bill, which hasn’t got much attention in the press and could really affect local authorities,” said Mitchell. A new law will make it an automatically unfair dismissal to dismiss an employee for refusing to agree to a variation to their employment contract or dismiss an employee to replace them with another person (or re-engage the same employee) to carry out the same duties under a varied contract, with the exception of businesses that need to do so to “remain viable”. The government is also considering increasing the maximum protective award from 90 days to 180 days and increasing the length of collective consultation required from 45 to 90 days. “This is something we need to think about,” advised Mitchell, adding that details remain scant given everything in the Bill remains under consultation.
• Zero-hours contracts: The government has said it will ban “exploitative” zero-hours contracts and give workers on these contracts (or on low guaranteed hours contracts) who regularly work more than their contracted hours the right to a contract that reflects the number of hours they regularly work over a 12-week period. Workers will also be entitled to compensation for shifts cancelled or curtailed at short notice. Mitchell predicted these amends, if not subject to changes, will be “a headache” for councils, given every local authority will have people on zero-hours contracts, for example relief, pool or bank staff, pointing out the issues that could be caused in areas like supply teaching. “It’s surely not what’s intended, but it’s what the bill says at the moment,” he added.

The duty to prevent sexual harassment

Since the end of October, employers have been subject to a new duty to take reasonable steps to prevent sexual harassment in the workplace.

Recently updated EHRC guidance contains key points including the fact that employers are required to take reasonable steps to prevent harassment not only by their own workers but also by third parties like clients and customers, and that employers should undertake risk assessments to identify situations in which workers may be subject to sexual harassment and take action to prevent it. You can read more about the details in this Clyde & Co briefing.

Miller revealed that in the three days following the launch of the regulations, Acas received 35,000 calls, adding: “It’s clearly big news”. According to the EHRC guidance, the duty is designed to transformation workplace cultures by requiring employers to take positive and proactive reasonable steps to prevent the sexual harassment of their workers. Miller agreed that the changes are “more culturally than legally significant”. He added: “This isn’t about worker compensation; it’s about worker protection.”

Miller advised HR professionals to focus on getting colleagues to take sexual harassment training seriously. “The challenge isn’t to eliminate anyone capable of harassing,” he said. “It’s to think about the subdivisions of that group: those people capable of harassing, but with the right conditions and the right training might not do so, and those…who are unreachable.” Given the financial risk attached, Miller predicted the new regulation should make HR professionals’ jobs “a bit easier” in terms of creating the appetite among leaders to take sexual harassment training more seriously.

 In part two of this article, we cover practical commentary on the legal landscape around mental health, dealing with protected beliefs on social media and drugs and alcohol testing.

Blog by Katie Jacobs, an award-winning freelance journalist, writer and editor, who specialises in writing about the world of work.

She was previously Editor of HR Magazine and Senior Stakeholder Lead at the CIPD.