The Employment Rights Bill (“ERB”) is still in the process of making its, rather torturous, way through Parliament; with the House of Commons and House of Lords remaining in disagreement over a number of key provisions.
The Government began four ERB consultations in October
On 23 October 2025, the Government began consultations in relation to the following provisions in the ERB:
- “Consultation on Duty to Inform Workers of Right to Join a Union”; which closes on 18 December 2025. A link to the consultation can be found here.
- “Consultation on Trade Union Workplace Access”; which closes on 18 December 2025. A link to the consultation can be found here.
- “Consultation on Leave for Bereavement, Including Pregnancy Loss”; which closes on 15 January 2026. A link to the consultation can be found here.
- “Consultation on Enhanced Dismissal Protections for Pregnant Women and New Mothers”; which closes on 15 January 2026. A link to the consultation can be found here.
Any organisations wishing to put forward their views on any of these consultations should ensure that they do so in good time before the applicable deadline.
The outcomes to these consultations are not expected until the New Year.
While the draft ERB continued to move back and forth between the House of Commons and the House of Lords
On 28 October 2025, the ERB returned to the House of Lords, which voted on further amendments, including:
- Having a six-month qualifying period for unfair dismissal protection, rather than making this a “day one right”.
- Introducing an obligation on employers, in relation to zero hours contracts, to write to workers at the end of each reference period, explaining their right to receive a guaranteed hours contract and giving them the opportunity to decline. In addition, adding a definition of “seasonal work” to the legislation (and in respect of which exemptions would likely apply).
- Inserting a provision requiring Trade Unions to opt their members out of contributions to political funds, unless they have expressly requested to opt in. In addition, requiring a 50% turnout threshold for an industrial action ballot.
On 5 November, the ERB was sent back to the House of Commons, and the Lords’ amendments were rejected.
On 17 November, the ERB returned to the Lords, for review. The Lords once again voted on the inclusion of their previous amendments, including:
- Insisting on a six-month qualifying period for unfair dismissal protection.
- Insisting, in relation to zero hours contracts, on a scheme whereby workers can choose to opt-out of receiving guaranteed hours offers, and pushing for a provision which requires that regard be given to the ‘specific characteristics and requirements of seasonal work’.
- Disagreeing with the Government’s proposal that union members be automatically opted-in to a Union’s political fund, and contesting the removal of the requirement that there is a turnout of at least 50% for industrial action ballots.
Several key points in the Bill therefore remain in dispute, with both the Commons and the Lords seemingly unwilling to compromise on their respective positions.
The Bill will now return to the House of Commons. If this “parliamentary ping pong” continues, there is a real risk that the Government’s “Implementation Roadmap” for the Bill’s provisions will slip. (For a reminder on the Implementation Roadmap timelines, see our article here.)
However, following publication of this article, on 27 November the Government announced that it will concede the ongoing battle over unfair dismissal protection, and agree to a six-month qualifying period. Presumably, this move is intended to break the current deadlock and bring parliament one step closer to being able to pass the Bill – perhaps even before the New Year.
Whilst this concession may result in more of a balance between job security for employees and flexibility in recruitment for employers, the changes being brought in by the ERB will still constitute a significant change for employers, and will necessitate substantial adjustments to practices around recruitment, probation periods, and performance management.
The Government has also indicated that it intends to “lift” the cap on unfair dismissal compensation (which is currently up to either 12 months’ salary or the statutory cap of £118,223, whichever is lower). It is not clear whether the cap will be removed entirely, or simply increased. This is a new proposal, and has not been included in previous drafts of the ERB. It is subject to further consultation.
It is not yet clear how the remaining points in dispute (regarding zero hours contracts and Trade Union provisions) will be resolved.
We await the next stages of the parliamentary process with interest.
And pressure on the Employment Tribunal system increases
As the ERB was being debated in the Lords on 17 November, His Majesty’s Courts and Tribunal System (“HMCTS”) released data showing that the backlog of Employment Tribunal claims waiting to be heard has increased by more than 25% in the past year. Critics of the ERB have voiced concerns that the proposals to extend protection from unfair dismissal to day one of employment (a provision which is currently being debated in Parliament) may increase this growing backlog, and hinder access to justice for employees and employers alike.
This follows a recent announcement by the Government, that the Advisory Conciliation and Arbitration Service (“ACAS”) Early Conciliation period (which is a mandatory step required before a claim can be brought in the Employment Tribunal), will be increasing from 6 weeks to 12 weeks, from 1 December 2025; in a bid to ease the corresponding rise in requests for Early Conciliation being faced by ACAS.
If you’d like to discuss any of the issues outlined in this article, please get in touch and our team of experienced Employment lawyers would be happy to help.
The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice or information about management training which we offer.