Legislation – Employment Rights Act 2025

“Chapter 1Exclusivity terms and other restrictions”.

“Chapter 2Right to guaranteed hours

Guaranteed hours offers

27BARight for qualifying workers to be offered guaranteed hours

(1)

An employer must make a guaranteed hours offer to a worker in accordance with section 27BB after the end of every period—

(a)

that is a reference period in relation to that worker and that employer, and

(b)

in relation to which the worker is a qualifying worker of the employer.

(2)

Section 27BD makes provision for exceptions to this duty, including in certain cases where the worker ceases to be employed by the employer.

(3)

A worker is a qualifying worker of an employer in relation to a reference period if—

(a)

during the reference period the worker was employed by the employer under one or more worker’s contracts (whether or not continuously) and either—

(i)

the worker’s contract was, or the worker’s contracts were, a zero hours contract or entered into in accordance with a zero hours arrangement, or

(ii)

the worker’s contract, or the worker’s contracts (taken together), required the employer, or were entered into in accordance with an arrangement that required the employer, to make work available to the worker during the reference period for a number of hours (“the minimum number of hours”) not exceeding a specified number of hours,

(b)

during the reference period the worker worked under the worker’s contract or the worker’s contracts (taken together) for a number of hours (the “reference period hours”),

(c)

where paragraph (a)(ii) applies, the reference period hours exceeded the minimum number of hours,

(d)

the reference period hours satisfy such conditions (or, where paragraph (a)(ii) applies, such further conditions) as to number, regularity or otherwise as are specified, and

(e)

when the worker worked the reference period hours, it was not as an excluded worker or an agency worker (but see Part 1 of Schedule A1 for provision about guaranteed hours and agency workers).

(4)

In relation to a worker and the worker’s employer, each of the following is a “reference period”—

(a)

the initial reference period, and

(b)

each subsequent reference period.

(5)

“The initial reference period”, in relation to a worker and the worker’s employer, means the period—

(a)

beginning with—

(i)

where the worker is employed by the employer on the day on which subsection (1) comes into force (“the commencement day”), the commencement day, or

(ii)

where the worker is not so employed, the first day after the commencement day on which the worker is employed by the employer, and

(b)

ending with the specified day.

(6)

A “subsequent reference period”, in relation to a worker and the worker’s employer, means a period beginning and ending with the specified days.

(7)

See paragraph 6(4) of Schedule A1 for provision about when the initial reference period is not a reference period in relation to a worker who is a former agency worker and that worker’s employer.

(8)

For the purposes of this Chapter—

(a)

references to a “qualifying worker” are to a worker who is a qualifying worker of an employer in relation to a reference period by virtue of subsection (3), and

(b)

the reference period in relation to which the worker is a qualifying worker of the employer is referred to as “the relevant reference period”.

(9)

If, during a reference period—

(a)

a worker was employed by an employer under one or more worker’s contracts of the type described in subsection (3)(a)(i) and one or more worker’s contracts of the type described in subsection (3)(a)(ii), and

(b)

the hours that the worker worked under the worker’s contract, or the worker’s contracts, that are of the type described in subsection (3)(a)(ii) did not exceed the minimum number of hours,

the worker’s contract, or the worker’s contracts, that are of the type described in subsection (3)(a)(ii) are to be disregarded in the application of this Chapter (other than this subsection) in relation to the worker and the reference period (and accordingly that worker’s contract, or those worker’s contracts, are to be treated as not existing).

(10)

Subsection (11) applies where—

(a)

a worker’s contract or arrangement requires an employer to make work available to a worker for a number of hours, and

(b)

some or all of those hours may be made available either on days falling within a reference period or on days falling within another period (all of the days on which the hours may be so made available together forming the “longer period”).

In subsection (11), “the unassigned hours” are the hours that may be made available at any time during the longer period as described in paragraph (b).

(11)

Where this subsection applies—

(a)

subsection (3)(a)(ii) is to apply as if the contract or arrangement required the employer to make work available to the worker during the reference period for the apportioned number of the unassigned hours (in addition to any other hours that the employer is required to make available to the worker during the reference period);

(b)

“the apportioned number” of the unassigned hours is—

$H\times \frac{D1}{D2}$

where—

H is the number of the unassigned hours,

D1 is the number of days in the reference period that fall within the longer period, and

D2 is the number of days in the longer period.

(12)

Where there is more than one longer period in relation to the same reference period, subsection (11) is to be applied separately in relation to each longer period.

(13)

Nothing in this Chapter prevents an employer from making one or more other offers to a qualifying worker, to vary the worker’s terms and conditions of employment or enter into a new worker’s contract, at the same time as making a guaranteed hours offer.

(14)

Regulations made under subsection (3)(d), (5) or (6) may, in particular, include provision to take account of time when a worker does not work for a specified reason.

(15)

Before making—

(a)

the first regulations to be made under subsection (5), the Secretary of State must consult such persons as the Secretary of State considers appropriate about when the initial reference period is to end;

(b)

the first regulations to be made under subsection (6), the Secretary of State must consult such persons as the Secretary of State considers appropriate about when a subsequent reference period is to begin and end.

(16)

In this section, “excluded worker” means a worker who is of a specified description.

27BBRequirements relating to a guaranteed hours offer

(1)

An offer by an employer to a qualifying worker is a guaranteed hours offer for the purposes of this Chapter if it is an offer—

(a)

to vary the worker’s terms and conditions of employment (but see subsection (6)), or

(b)

to enter into a new worker’s contract,

and the terms and conditions as varied or (as the case may be) the new worker’s contract will require the employer to provide the qualifying worker with work, and the qualifying worker to do work, for a number of hours that reflects the reference period hours in the relevant reference period.

(2)

The Secretary of State may by regulations provide that an offer by an employer to a qualifying worker is a guaranteed hours offer for the purposes of this Chapter only if it also satisfies the condition in subsection (3).

(3)

The condition referred to in subsection (2) is that—

(a)

the offer sets out—

(i)

the days of the week, and the times on those days, when the offered number of hours are to be provided and worked, or

(ii)

a working pattern of days, and times of day, by reference to which the offered number of hours are to be provided and worked, and

(b)

those days and times reflect, or that pattern reflects, when the qualifying worker worked the reference period hours in the relevant reference period.

(4)

Where no regulations are in force under subsection (2) that apply in relation to an offer by an employer to a qualifying worker, the offer is a guaranteed hours offer for the purposes of this Chapter only if it also proposes terms and conditions relating to when the offered number of hours are to be provided and worked (which need not be on particular days of the week, or at particular times on those days, or by reference to a particular working pattern of days or times of day).

(5)

The Secretary of State may by regulations make provision about how it is to be determined—

(a)

whether an offer reflects the number of hours worked by a qualifying worker during a reference period;

(b)

where regulations are in force under subsection (2) that apply in relation to an offer, whether the offer reflects when hours were worked by a qualifying worker during a reference period.

(6)

A guaranteed hours offer may take the form of an offer to vary a qualifying worker’s terms and conditions of employment (as opposed to an offer to enter into a new worker’s contract) only if—

(a)

the qualifying worker worked for the employer under a worker’s contract at the beginning of the relevant reference period,

(b)

the qualifying worker is still working for the employer under that worker’s contract on the day the offer is made, and

(c)

the qualifying worker did not work for the employer under any other worker’s contract during the period beginning with the first day of the relevant reference period and ending with the day the offer is made.

(7)

A guaranteed hours offer that takes the form of an offer to vary a qualifying worker’s terms and conditions of employment—

(a)

must propose the removal of any term that provides for the contract to terminate by virtue of a limiting event unless, if the contract were entered into on the day the offer is made, it would be reasonable for it to be entered into as a limited-term contract;

(b)

may not propose any other variation of the worker’s terms and conditions of employment (other than what is required by or under subsections (1) and (2) or subsections (1) and (4)).

(8)

A guaranteed hours offer that takes the form of an offer to enter into a new worker’s contract—

(a)

must not propose a new worker’s contract that is a limited-term contract unless it is reasonable for it to be entered into as such a contract, and

(b)

must (in addition to what is required by or under subsections (1) and (2) or subsections (1) and (4)) propose terms and conditions of employment—

(i)

that, taken as a whole, are no less favourable than the terms and conditions of employment relating to matters other than working hours and length of employment that the qualifying worker had when working for the employer during the relevant reference period, or

(ii)

where section 27BC applies, that comply with subsection (2) of that section.

(9)

For the purposes of this section it is reasonable for a worker’s contract of a qualifying worker to be entered into as a limited-term contract only if—

(a)

it is reasonable for the qualifying worker’s employer to consider that the worker is only needed to perform a specific task and the contract provides for termination when the task has been performed,

(b)

it is reasonable for the qualifying worker’s employer to consider that the worker is only needed until the occurrence of an event (or the failure of an event to occur) and the contract provides for termination on the occurrence of the event (or the failure of the event to occur), or

(c)

it is reasonable for the qualifying worker’s employer to consider that there is only a temporary need of a specified description (not falling within paragraph (a) or (b)) for the qualifying worker to do work under the contract and the contract is to expire at a time when it is reasonable for the employer to consider that the temporary need will come to an end.

(10)

Before making the first regulations to be made under subsection (9)(c) the Secretary of State must consult—

(a)

such persons representing the interests of seasonal workers as the Secretary of State considers appropriate,

(b)

such persons representing the interests of employers of seasonal workers as the Secretary of State considers appropriate, and

(c)

such other persons as the Secretary of State considers appropriate.

(11)

A guaranteed hours offer—

(a)

must be made by no later than the specified day,

(b)

must be made in the specified form and manner, and

(c)

must be accompanied by specified information relating to the offer.

(12)

The Secretary of State may by regulations make provision about when a guaranteed hours offer is to be treated as having been made.

(13)

In this section, “reference period hours”, in relation to a qualifying worker and a relevant reference period, has the same meaning as in section 27BA(3).

27BCRequirements relating to a guaranteed hours offer: supplementary

(1)

This section applies where—

(a)

a guaranteed hours offer made by an employer to a qualifying worker takes the form of an offer to enter into a new worker’s contract, and

(b)

during the relevant reference period—

(i)

the qualifying worker worked for the employer under more than one worker’s contract and did not have the same terms and conditions of employment relating to matters other than working hours and length of employment under those worker’s contracts, or

(ii)

the qualifying worker worked for the employer under only one worker’s contract but there was a variation during the relevant reference period of the qualifying worker’s terms and conditions of employment relating to matters other than working hours and length of employment.

(2)

Where this section applies, the guaranteed hours offer may propose terms and conditions of employment (in addition to what is required by or under section 27BB(1) and (2) or section 27BB(1) and (4)) that, taken as a whole, are less favourable than the most favourable terms and conditions of employment relating to matters other than working hours and length of employment that the qualifying worker had when working for the employer during the relevant reference period, but only if—

(a)

those proposed terms and conditions, taken as a whole, are no less favourable than the least favourable terms and conditions relating to matters other than working hours and length of employment that the qualifying worker had when working for the employer during the relevant reference period, and

(b)

the proposal of those terms by the employer constitutes a proportionate means of achieving a legitimate aim.

(3)

If an employer relies on subsection (2) when making a guaranteed hours offer to a qualifying worker, the employer must give to the qualifying worker a notice that—

(a)

states that the employer has done so, and

(b)

explains how the proposed terms and conditions constitute a proportionate means of achieving a legitimate aim.

(4)

A notice under subsection (3) must be given by no later than the same day, and in the same form and manner, as the guaranteed hours offer (see section 27BB(11)).

27BDGuaranteed hours offer: exceptions to duty to make offer and withdrawal of offer

(1)

The duty imposed by section 27BA(1) on an employer in relation to a qualifying worker does not apply if during the relevant reference period or the offer period there is a relevant termination of—

(a)

the worker’s contract under which the qualifying worker has been working for the employer, or

(b)

the arrangement in accordance with the terms of which the qualifying worker has been working for the employer.

(2)

A guaranteed hours offer made by an employer to a qualifying worker is to be treated as having been withdrawn if during the response period there is a relevant termination of—

(a)

the worker’s contract under which the qualifying worker has been working for the employer, or

(b)

the arrangement in accordance with the terms of which the qualifying worker has been working for the employer.

(3)

Where a qualifying worker works for an employer under more than one worker’s contract, or in accordance with the terms of more than one arrangement, during—

(a)

the relevant reference period,

(b)

the offer period, or

(c)

the response period,

the references in subsections (1) and (2) to the worker’s contract or (as the case may be) the arrangement are to the worker’s contract under which, or (as the case may be) the arrangement in accordance with the terms of which, the qualifying worker last worked for the employer before the end of the period in question.

(4)

There is a relevant termination of a worker’s contract entered into between a qualifying worker and an employer if—

(a)

the qualifying worker terminates (with or without notice) the worker’s contract otherwise than in circumstances in which the worker is entitled to terminate it without notice by reason of the employer’s conduct,

(b)

the employer terminates (with or without notice) the worker’s contract and—

(i)

the employer’s reason for doing so (or, if more than one, the employer’s principal reason for doing so) is a qualifying reason, and

(ii)

in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acts reasonably in treating the reason (or the principal reason) as a sufficient reason for terminating the contract, or

(c)

the worker’s contract terminates by virtue of a limiting event and it was reasonable for the contract to have been entered into as a limited-term contract.

(5)

There is a relevant termination of an arrangement entered into between a qualifying worker and an employer if—

(a)

the qualifying worker or the employer terminates the arrangement and the termination is equivalent to a termination falling within subsection (4)(a) or (b), or

(b)

the arrangement was not intended to be permanent and the termination of it is equivalent to a termination falling within subsection (4)(c).

(6)

The Secretary of State may by regulations make provision for the duty imposed by section 27BA(1) not to apply in relation to a reference period, or for a guaranteed hours offer that has been made to be treated as having been withdrawn, in other specified circumstances.

(7)

In exercising the power under subsection (6) the Secretary of State must, in particular, have regard to—

(a)

the benefit to workers of receiving a guaranteed hours offer under this Chapter, and

(b)

the desirability of preventing this Chapter from having a significant adverse effect on employers who are dealing with exceptional circumstances.

(8)

Where, by virtue of subsection (2), a guaranteed hours offer made by an employer to a qualifying worker is treated as having been withdrawn, the employer must, by no later than the end of the response period, give a notice to the qualifying worker stating this to be the case.

(9)

Where, by virtue of regulations under subsection (6)—

(a)

an employer who would otherwise have been subject to the duty imposed by section 27BA(1) in relation to a qualifying worker and a particular reference period is not required to make a guaranteed hours offer to the qualifying worker, or

(b)

a guaranteed hours offer made by an employer to a qualifying worker is treated as having been withdrawn,

the employer must give a notice to the qualifying worker that states which provision of the regulations has produced the effect referred to in paragraph (a) or (b) (as the case may be).

(10)

A notice under subsection (9) must be given by an employer to a qualifying worker—

(a)

where it is required to be given by virtue of paragraph (a) of that subsection, by no later than the end of the offer period;

(b)

where it is required to be given by virtue of paragraph (b) of that subsection, by no later than the end of the response period.

(11)

The Secretary of State may by regulations make provision about—

(a)

the form and manner in which a notice under subsection (8) or (9) must be given;

(b)

when a notice under subsection (8) or (9) is to be treated as having been given.

(12)

For the purposes of subsection (4)(c) (and subsection (5)(b), which applies subsection (4)(c))—

(a)

subsection (9) of section 27BB (when it is reasonable for a worker’s contract to be entered into as a limited-term contract) applies as it applies for the purposes of that section;

(b)

it is to be presumed, unless the contrary is shown, that it was not reasonable for the worker’s contract to have been entered into as a limited-term contract if the work done by the qualifying worker under the worker’s contract was of the same or a similar nature as the work done under another worker’s contract under which the qualifying worker worked for the employer—

(i)

where the period in question is the relevant reference period, during that period;

(ii)

where the period in question is the offer period, during that period or the relevant reference period;

(iii)

where the period in question is the response period, during that period, the relevant reference period or the offer period.

(13)

In this section—

“the offer period”, in relation to a qualifying worker and the qualifying worker’s employer, means the period beginning with the day after the day on which the relevant reference period ends and ending with—

(a)

the day on which a guaranteed hours offer is made to the qualifying worker by the employer, or

(b)

if no guaranteed hours offer is made before the day specified under section 27BB(11)(a) as the last day on which the employer may make such an offer to the qualifying worker, that last day;

“qualifying reason” means—

(a)

a reason of the type mentioned in section 98(1)(b), or

(b)

in relation to a worker who was not an employee immediately before ceasing to be employed, a reason that would be of the type mentioned in section 98(1)(b) if references in that provision and in section 98(2) and (3) to an employee were references to a worker;

“the response period”, in relation to a guaranteed hours offer made to a qualifying worker, means the period—

(a)

beginning with the day after the day on which the offer is made, and

(b)

ending with the specified day.

27BEAcceptance or rejection of a guaranteed hours offer

(1)

Where an employer makes a guaranteed hours offer to a qualifying worker and the offer is not treated as having been withdrawn by virtue of section 27BD(2) or regulations under section 27BD(6), the qualifying worker may, by giving notice to the employer before the end of the response period, accept or reject the offer.

(2)

Where the guaranteed hours offer takes the form of an offer to vary the qualifying worker’s terms and conditions of employment and the qualifying worker gives notice under subsection (1) accepting the offer, the variation (assuming the worker’s contract that was in force when the guaranteed hours offer was made is still in force) is to be treated as taking effect on the day after the day on which notice is given (but this is subject to subsection (6)).

(3)

If the guaranteed hours offer takes the form of an offer to vary the qualifying worker’s terms and conditions of employment but the worker’s contract that was in force when the guaranteed hours offer was made ceases to be in force during the response period—

(a)

the qualifying worker may (if the offer is not treated as having been withdrawn by virtue of section 27BD(2) or regulations under section 27BD(6)) still give notice under subsection (1) accepting the offer, and

(b)

if the qualifying worker does so—

(i)

the qualifying worker and the employer are to be treated as entering into a worker’s contract on the day after the day on which notice is given (but this is subject to subsection (6)), and

(ii)

the terms of the contract are to be treated as being the terms of the worker’s contract that was in force when the guaranteed hours offer was made as varied in accordance with the terms of the offer.

(4)

Where the guaranteed hours offer takes the form of an offer to enter into a new worker’s contract and the qualifying worker gives notice under subsection (1) accepting the offer—

(a)

the qualifying worker and the employer are to be treated as entering into a worker’s contract in the terms of the offer on the day after the day on which notice is given (but this is subject to subsection (6)), and

(b)

that worker’s contract is to be treated as replacing any other worker’s contract entered into between the qualifying worker and the employer that is in force on that day.

(5)

But where, by virtue of subsection (4)(b), a new worker’s contract replaces another worker’s contract of a qualifying worker who is an employee—

(a)

that is not to be treated for the purposes of this Act as breaking the continuity of a period of employment of the qualifying worker;

(b)

the worker’s contract that is replaced is not to be treated for the purposes of Part 10 as having terminated.

(6)

A qualifying worker and an employer may agree, for the purposes of subsection (2), (3) or (4), that the variation of the qualifying worker’s terms and conditions of employment is to be treated as taking effect, or (as the case may be) the new worker’s contract is to be treated as being entered into, on a later day than the day mentioned in the subsection (and, in subsection (4)(b), the reference to “that day” is then to be read as a reference to the later agreed day).

(7)

If a qualifying worker to whom a guaranteed hours offer has been made does not give notice under subsection (1) before the end of the response period, the qualifying worker is to be treated as having rejected the offer.

(8)

The Secretary of State may by regulations make provision about—

(a)

the form and manner in which notice under subsection (1) must be given by a qualifying worker to an employer;

(b)

when notice given by a qualifying worker to an employer under subsection (1) is to be treated as having been given.

(9)

In this section, “the response period” has the same meaning as in section 27BD.

(10)

Where—

(a)

an employer is permitted by section 27BY(3) to withdraw a guaranteed hours offer (withdrawal of offer following incorporation of terms of collective agreement), and

(b)

the employer withdraws the offer by giving notice under that section,

subsection (1) of this section ceases to apply in relation to the offer when the notice is given.

Information

27BFInformation about rights conferred by Chapter 2

(1)

An employer who employs a worker who it is reasonable to consider might become a qualifying worker of the employer in relation to a reference period (whether the initial reference period, or a subsequent reference period, as defined in section 27BA) must take reasonable steps, within the initial information period, to ensure that the worker is aware of specified information relating to the rights conferred on workers by this Chapter.

(2)

An employer who is subject to the duty in subsection (1) in relation to a worker must take reasonable steps to ensure that, after the end of the initial information period, the worker continues to have access to the specified information referred to in that subsection at all times when—

(a)

the worker is employed by the employer, and

(b)

it is reasonable to consider that the worker might become (or might again become) a qualifying worker of the employer in relation to a reference period.

(3)

“The initial information period”, in relation to a worker and the worker’s employer, means the period of two weeks beginning with—

(a)

where the worker is employed by the employer on the day on which section 27BA(1) comes into force (“the commencement day”), the commencement day, or

(b)

where the worker is not so employed, the first day after the commencement day on which the worker is employed by the employer.

(4)

But where, on the day referred to in subsection (3)(a) or (b), it was not reasonable to consider that the worker might become a qualifying worker of the employer in relation to any reference period, subsection (3) is to be read as if it provided for “the initial information period” to mean the period of two weeks beginning with the day on which it becomes reasonable so to consider.

Enforcement

27BGComplaints to employment tribunals: grounds

(1)

A worker may present a complaint to an employment tribunal that—

(a)

the duty imposed by section 27BA(1) applies to the worker’s employer in relation to the worker and a particular reference period, but

(b)

by the end of the last day of the offer period, the employer has not made an offer to vary the worker’s terms and conditions of employment or to enter into a new worker’s contract in compliance (or purported compliance) with that duty (whether because the employer does not consider that the worker is a qualifying worker in relation to the reference period or for any other reason).

(2)

A worker may present a complaint to an employment tribunal that—

(a)

the duty imposed by section 27BA(1) applies to the worker’s employer in relation to the worker and a particular reference period, but

(b)

the offer that the employer has made to the worker in relation to that reference period to vary the worker’s terms and conditions of employment or to enter into a new worker’s contract is not a guaranteed hours offer as described in—

(i)

where regulations are in force under subsection (2) of section 27BB that apply in relation to the offer, subsections (1) and (3) of that section (read with any regulations in force under subsection (5)(a) or (b) of that section), or

(ii)

where no regulations are in force under subsection (2) of section 27BB that apply in relation to the offer, subsections (1) and (4) of that section (read with any regulations in force under subsection (5)(a) of that section).

(3)

A worker may present a complaint to an employment tribunal that—

(a)

the duty imposed by section 27BA(1) applies to the worker’s employer in relation to the worker and a particular reference period, but

(b)

the guaranteed hours offer that the employer has made to the worker in relation to that reference period—

(i)

takes the form of an offer to vary the worker’s terms and conditions of employment where that is prohibited by section 27BB(6),

(ii)

does not comply with section 27BB(7), or

(iii)

does not comply with section 27BB(8).

(4)

A worker may present a complaint to an employment tribunal that—

(a)

the duty imposed by section 27BA(1) applies to the worker’s employer in relation to the worker and a particular reference period, but

(b)

the guaranteed hours offer that the employer has made to the worker in relation to that reference period is on terms requiring the employer to provide, and the worker to do, less work than would have been the case if the employer had not, during that reference period—

(i)

limited (by whatever means, including termination of a worker’s contract or an arrangement) the number of hours of work made available to the worker, or

(ii)

decided to make work available to the worker in the way that the employer did,

for the sole or main purpose of being able to comply with the duty by making such a reduced offer.

(5)

A worker may present a complaint to an employment tribunal that the duty imposed by section 27BA(1) would have applied to the worker’s employer in relation to the worker and a particular reference period if the employer had not, during that reference period—

(a)

limited (by whatever means, including termination of a worker’s contract or an arrangement) the number of hours of work made available to the worker, or

(b)

decided to make work available to the worker in the way that the employer did,

for the sole or main purpose of preventing the worker from satisfying, in relation to that reference period, one or more of the conditions in section 27BA(3)(b) to (d).

(6)

A complaint under subsection (2), (3) or (4)—

(a)

may be presented whether or not the offer in question has been accepted by the worker, but

(b)

may not be presented in relation to an offer that is—

(i)

treated as having been withdrawn by virtue of section 27BD(2) or regulations under section 27BD(6), or

(ii)

withdrawn in accordance with section 27BY(3) (withdrawal of offer following incorporation of terms of collective agreement).

(7)

A worker may present a complaint to an employment tribunal that the worker’s employer—

(a)

has failed to give to the worker a notice under section 27BD(8) or (9);

(b)

has given to the worker a notice under section 27BD(8) or (9)(b) in circumstances in which the employer should not have done so;

(c)

has given to the worker a notice in purported compliance with section 27BD(9) that does not refer to any provision of the regulations or refers to the wrong provision.

(8)

A worker may present a complaint to an employment tribunal that the worker’s employer has failed to comply with—

(a)

the duty imposed by section 27BF(1);

(b)

the duty imposed by section 27BF(2).

(9)

In this section “the last day of the offer period”, in relation to a reference period, means the day specified under section 27BB(11)(a) as the last day on which a guaranteed hours offer may be made in relation to that reference period.

27BHComplaints to employment tribunals: time limits

(1)

An employment tribunal must not consider a complaint under section 27BG(1) unless it is presented before the end of the period of six months beginning with the day after the last day of the offer period (as defined in section 27BG(9)).

(2)

An employment tribunal must not consider a complaint under section 27BG(2) unless it is presented before the end of the period of six months beginning with the day after the day when the offer referred to in that provision is made.

(3)

An employment tribunal must not consider a complaint under section 27BG(3) or (4) unless it is presented before the end of the period of six months beginning with the day after the day when the guaranteed hours offer referred to in that provision is made.

(4)

An employment tribunal must not consider a complaint under section 27BG(5) unless it is presented before the end of the period of six months beginning with the day after what would have been the last day of the offer period (as defined in section 27BG(9)) if the duty imposed by section 27BA(1) had applied.

(5)

An employment tribunal must not consider a complaint under section 27BG(7)(a) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on or before which the notice should have been given (see section 27BD(8) and (10)).

(6)

An employment tribunal must not consider a complaint under section 27BG(7)(b) or (c) relating to a notice unless it is presented before the end of the period of six months beginning with the day after the day on which the notice is given.

(7)

An employment tribunal must not consider a complaint under section 27BG(8)(a)unless it is presented before the end of the period of six months beginning with the day after the last day of the initial information period (see section 27BF(3) and (4)).

(8)

An employment tribunal must not consider a complaint under section 27BG(8)(b) unless it is presented before the end of the period of six months beginning with the day on which the worker first becomes aware of the failure to which the complaint relates.

(9)

But, if the employment tribunal is satisfied that it was not reasonably practicable for a complaint under section 27BG to be presented before the end of the relevant period of six months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable.

(10)

Section 207B (extension of time limits to facilitate conciliation before institution of proceedings) applies for the purposes of subsections (1) to (8).

27BIRemedies

(1)

Where an employment tribunal finds a complaint under section 27BG well-founded, the tribunal—

(a)

must make a declaration to that effect, and

(b)

may make an award of compensation to be paid by the employer to the worker.

(2)

The amount of compensation under subsection (1)(b) is to be such amount, not exceeding the permitted maximum, as the tribunal considers just and equitable in all the circumstances to compensate the worker for any financial loss sustained by the worker which is attributable to the matter complained of.

(3)

In ascertaining the financial loss sustained, the tribunal must apply the same rule concerning the duty of a person to mitigate their loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.

(4)

For the purposes of subsection (2), “the permitted maximum” is—

(a)

where the complaint is under section 27BG(1), (2), (3), (7) or (8), such number of weeks’ pay as the Secretary of State may specify in regulations;

(b)

where the complaint is under section 27BG(4) or (5), such amount as the Secretary of State may specify in regulations.

(5)

In calculating a week’s pay for the purposes of determining the permitted maximum for an award of compensation to a worker who is not an employee, Chapter 2 of Part 14 is to apply as if—

(a)

references in that Chapter and in section 234 (normal working hours) to an employee were references to a worker;

(b)

references in that Chapter and in section 234 to a contract of employment were references to a worker’s contract;

(c)

“week” meant—

(i)

in relation to a worker whose remuneration is calculated weekly by a week ending with a day other than a Saturday, a week ending with that other day, and

(ii)

in relation to any other worker, a week ending with Saturday.”

“Chapter 5Agency workers: guaranteed hours and rights relating to shifts

27BVAgency workers

(1)

In this Part, “agency worker” means an individual—

(a)

who has a worker’s contract or an arrangement with a work-finding agency by virtue of which the individual is (or is to be) supplied to work for and under the supervision and direction of another person,

(b)

who does not do (or is not to do) the work under a worker’s contract with the other person, and

(c)

who is not (or is not to be) a party to a contract under which the individual undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.

(2)

In this Part—

(a)

references to an agency worker include, where the context requires, a former agency worker, and

(b)

where that is the case, references in relation to the agency worker to a work-finding agency, and references (however expressed) to a person for and under the supervision and direction of whom the agency worker works, are to be read accordingly.

(3)

An individual is an “agency worker” for the purposes of this Part—

(a)

whether the individual is (or is to be) supplied to work for and under the supervision and direction of another person—

(i)

by the work-finding agency referred to in subsection (1)(a), or

(ii)

by a person other than the work-finding agency;

(b)

whether the individual is (or is to be) paid, for work done for and under the supervision and direction of another person—

(i)

by the work-finding agency referred to in subsection (1)(a), or

(ii)

by a person other than the work-finding agency.

(4)

In this Part, “work-finding agency” means a person carrying on the business (whether or not with a view to profit and whether or not in conjunction with any other business) of finding, or seeking to find, work for individuals to do for and under the supervision and direction of other persons (but not in the employment of those other persons).

(5)

Part 1 of Schedule A1 contains provision about guaranteed hours and agency workers.

(6)

Part 2 of Schedule A1 contains provision about rights of agency workers to reasonable notice in relation to shifts.

(7)

Part 3 of Schedule A1 contains provision about rights of agency workers to payment for shifts that are cancelled, moved or curtailed at short notice.”

“Chapter 6Collective agreements: contracting out

27BWZero hours workers, etc

(1)

This section applies in relation to—

(a)

a duty imposed on an employer in respect of a worker, and

(b)

a right conferred on a worker in respect of an employer,

by or under any provision of Chapter 2, 3 or 4.

(2)

The duty or right is excluded if—

(a)

the worker is employed by the employer under a worker’s contract (“the contract”),

(b)

a relevant collective agreement contains—

(i)

terms that expressly exclude the duty or right, and

(ii)

terms that expressly replace the excluded duty or right,

(c)

the terms within paragraph (b)(ii) are incorporated into the contract, and

(d)

the employer notifies the worker in writing of the incorporation and effect of those terms.

(3)

A relevant collective agreement is a collective agreement that is—

(a)

in writing, and

(b)

made by or on behalf of—

(i)

one or more trade unions which each have a certificate of independence, and

(ii)

the worker’s employer.

27BXAgency workers

(1)

This section applies in relation to—

(a)

a duty imposed on a hirer or a work-finding agency in respect of an agency worker, and

(b)

a right conferred on an agency worker in respect of a hirer or a work-finding agency,

by or under any provision of Chapter 5 (including Schedule A1).

(2)

The duty or right is excluded if—

(a)

the agency worker is supplied to work for and under the supervision and direction of the hirer by virtue of a worker’s contract (“the contract”) that the agency worker has with another person (“the other party”),

(b)

a relevant collective agreement contains—

(i)

terms that expressly exclude the duty or right, and

(ii)

terms that expressly replace the excluded duty or right,

(c)

the terms within paragraph (b)(ii) are incorporated into the contract, and

(d)

the other party notifies the agency worker in writing of the incorporation and effect of those terms.

(3)

A relevant collective agreement is a collective agreement that is—

(a)

in writing, and

(b)

made by or on behalf of—

(i)

one or more trade unions which each have a certificate of independence, and

(ii)

the other party.

27BYSupplementary provision

(1)

For the purposes of sections 27BW and 27BX, it does not matter whether—

(a)

terms in a collective agreement that expressly replace a duty or right relate to the same subject matter as the duty or right, or

(b)

a collective agreement ceases to be in force after the terms mentioned in section 27BW(2)(b)(ii) or 27BX(2)(b)(ii) are incorporated into the contract (within the meaning of section 27BW or 27BX, as the case may be), provided the terms continue to be incorporated.

(2)

Where the duty to make a guaranteed hours offer under Chapter 2 or 5 is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BW(2)(c) or 27BX(2)(c), during the offer period, the duty ceases to apply.

(3)

Where—

(a)

the duty to make a guaranteed hours offer under Chapter 2 or 5 is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BW(2)(c) or 27BX(2)(c),

(b)

a guaranteed hours offer has already been made in compliance with the duty, and

(c)

the worker or agency worker has not accepted the offer,

the person who made the offer may withdraw it during the response period by giving a notice to the worker or agency worker.

(4)

The notice must include a statement to the effect that the offer is withdrawn in consequence of the exclusion of the duty to make a guaranteed hours offer as a result of the incorporation into the worker’s or agency worker’s contract, as mentioned in section 27BW(2)(c) or 27BX(2)(c), of terms contained in a collective agreement that expressly replace that duty.

(5)

A worker or an agency worker to whom a notice is given in reliance on subsection (3) may present a complaint to an employment tribunal that subsection (3) did not permit the notice to be given.

(6)

Where a complaint is presented under subsection (5)—

(a)

by a worker, sections 27BH and 27BI apply in relation to the complaint as they apply in relation to a complaint under section 27BG(7)(b);

(b)

by an agency worker, paragraphs 10 and 11 of Schedule A1 apply in relation to the complaint as they apply in relation to a complaint under paragraph 8(7)(b) of that Schedule.

(7)

Subsection (8) applies where—

(a)

the duty to make a guaranteed hours offer under Chapter 2 or 5 is excluded by virtue of terms that are incorporated into a contract with a worker or, as the case may be, an agency worker, as mentioned in section 27BW(2)(c) or 27BX(2)(c), and

(b)

the duty ceases to be excluded as a result of the terms ceasing to be incorporated into the contract (including where the contract ceases to be in force).

(8)

In applying Chapter 2 or 5 for the purposes of the duty after it has ceased to be excluded—

(a)

in any case where there was a reference period in relation to the duty as it had effect before being excluded, that reference period is to be disregarded;

(b)

in relation to a worker and the worker’s employer—

(i)

section 27BA(5)(a) has effect as if for sub-paragraphs (i) and (ii) there were substituted—

“(i)

where the worker is employed by the employer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or

(ii)

where the worker is not so employed, the first day after the effective day on which the worker is employed by the employer, and”;

(ii)

section 27BF(3) has effect as if for paragraphs (a) and (b) there were substituted—

“(a)

where the worker is employed by the employer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or

(b)

where the worker is not so employed, the first day after the effective day on which the worker is employed by the employer.”;

(c)

in relation to an agency worker and a hirer for and under the supervision and direction of whom the agency worker works, paragraph 1(5)(a) of Schedule A1 has effect as if for sub-paragraphs (i) and (ii) there were substituted—

“(i)

where the agency worker is working for and under the supervision and direction of the hirer on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or

(ii)

where the agency worker is not so working, the first day after the effective day on which the agency worker is working for and under the supervision and direction of the hirer, and”;

(d)

in relation to an agency worker and the work-finding agency with which the agency worker has a worker’s contract or an arrangement by virtue of which the agency worker is (or is to be) supplied to work for and under the supervision and direction of a hirer, paragraph 7(3) of Schedule A1 has effect as if for paragraphs (a) and (b) there were substituted—

“(a)

where the worker’s contract or arrangement is in force on the day (“the effective day”) after the day on which terms cease to be incorporated as mentioned in section 27BY(7)(b), the effective day, or

(b)

where it is not in force on the effective day, the first day after the effective day on which it is in force.”

27BZRegulations

(1)

The Secretary of State may by regulations make further provision for the purposes of section 27BW or 27BX.

(2)

The regulations may, in particular, make provision about—

(a)

the effect on a duty in Chapters 2 to 5 of terms being or ceasing to be incorporated as mentioned in section 27BW(2)(c) or 27BX(2)(c),

(b)

the form and manner in which a notice under section 27BY(3) is to be given, and

(c)

when a notice under section 27BY(3) is to be treated as having been given.

27BZ1Interpretation

(1)

Terms used in this Chapter that are used in—

(a)

Chapters 2 to 4 (rights relating to zero hours workers, etc), or

(b)

Chapter 5 (including Schedule A1) (rights relating to agency workers),

have the same meaning as in those Chapters or that Chapter (including that Schedule).

(2)

In this Chapter, “certificate of independence” means a certificate issued under section 6 of the Trade Union and Labour Relations (Consolidation) Act 1992.”

“(za)

does not apply to terms of a collective agreement or contract that exclude a duty or right by virtue of provision made by or under Chapter 6 of Part 2A,”.

“Chapter 7General

27BZ2Interpretation

(1)

In this Part—

“agency worker” has the meaning given by section 27BV;

“arrangement” (when used by itself and not as part of the expression “zero hours arrangement”) means an arrangement (whether contractual or non-contractual) other than a worker’s contract;

“specified” means specified in, or determined in accordance with, regulations made by the Secretary of State;

“work-finding agency” has the meaning given by section 27BV;

“zero hours arrangement” means an arrangement under which—

(a)

an employer and an individual agree terms on which the individual will do any work where the employer makes it available to the individual and the individual agrees to do it, but

(b)

the employer is not required to make any work available to the individual, nor the individual required to accept it,

and in this Part “employer”, in relation to a zero hours arrangement, is to be read accordingly;

“zero hours contract” means a contract of employment or other worker’s contract under which—

(a)

the undertaking to do work is an undertaking to do so conditionally on the employer making work available to the worker, and

(b)

there is no certainty that any such work will be made available to the worker.

(2)

For the purposes of this Part—

(a)

a person who is, or is treated as, an employer makes work available to a worker or other individual if they request or require the individual to do it;

(b)

references to work and doing work include references to services and performing them.

27BZ3Regulations

(1)

Regulations under this Part may—

(a)

make different provision for different purposes;

(b)

make provision subject to exceptions.

(2)

Regulations under this Part may provide that a reference in the regulations to a provision of legislation is to be read as a reference to that provision as amended from time to time.”

“(b)

may refuse the application only if—

(i)

the employer considers that the application should be refused on a ground or grounds listed in subsection (1ZA), and

(ii)

it is reasonable for the employer to refuse the application on that ground or those grounds.

(1ZA)

The grounds mentioned in subsection (1)(b) are—

(a)

the burden of additional costs;

(b)

detrimental effect on ability to meet customer demand;

(c)

inability to re-organise work among existing staff;

(d)

inability to recruit additional staff;

(e)

detrimental impact on quality;

(f)

detrimental impact on performance;

(g)

insufficiency of work during the periods the employee proposes to work;

(h)

planned structural changes;

(i)

any other grounds specified by the Secretary of State in regulations.”

“(1ZB)

If an employer refuses an application under section 80F, the notification under subsection (1)(aa) must—

(a)

state the ground or grounds for refusing the application, and

(b)

explain why the employer considers that it is reasonable to refuse the application on that ground or those grounds.”

“(1E)

The steps which an employer must take in order to comply with subsection (1)(aza) include, among others, any steps specified in regulations made by the Secretary of State.”

“(eza)

Part 8A,”.

“(1)

The weekly rate of statutory sick pay that an employer must pay to an employee is the lower of—

(a)

£118.75, and

(b)

80% of the employee’s normal weekly earnings.”

“(1)

The weekly rate of statutory sick pay that an employer must pay to an employee is the lower of—

(a)

£118.75, and

(b)

80% of the employee’s normal weekly earnings.”

“(2A)

Before producing the first version of the written policy for a place of business, an employer must consult—

(a)

representatives of an independent trade union recognised by the employer in respect of workers who are likely to be affected by the policy, or representatives appointed or elected by those workers and having authority to receive information and to be consulted about the policy on behalf of those workers, or

(b)

if there are no such trade union or worker representatives, workers who are likely to be affected by the policy.”

“(3A)

Where an employer makes a written policy available to workers at a place of business under this section, the employer must review the policy from time to time.

(3B)

A review must be carried out—

(a)

at least once during the period of three years beginning with the first day on which the first version of the policy is made available (including where that day precedes the coming into force of this subsection), and

(b)

after that, no more than three years after the completion of the previous review.

(3C)

An employer must consult persons as described in subsection (2A) as part of every review of the written policy.”

“(7)

An employer who has carried out a consultation required by this section in relation to a written policy for a place of business must make a summary of the views expressed in the consultation available in anonymised form to all workers of the employer at the place of business.

(8)

In this section “recognised”, in relation to a trade union, has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 (see section 178 of that Act).”

“40BPrevention of sexual harassment: power to specify “reasonable steps”

(1)

Regulations may specify steps that are to be regarded as “reasonable” for the purpose of determining whether, for the purposes of this Act, an employer (A) has taken, or failed to take, all reasonable steps to prevent sexual harassment of an employee of A (see, in particular, sections 40 and 40A and section 109).

(2)

The steps that may be specified in regulations under this section include, among others—

(a)

carrying out assessments of a specified description;

(b)

publishing plans or policies of a specified description;

(c)

steps relating to the reporting of sexual harassment;

(d)

steps relating to the handling of complaints.

(3)

Regulations under this section that specify any steps may require an employer to have regard to specified matters when taking those steps.

(4)

In this section—

“sexual harassment” means harassment of the kind described in section 26(2) (unwanted conduct of a sexual nature);

“specified” means specified in the regulations.”

“(aa)

regulations under section 40B (prevention of sexual harassment: power to specify “reasonable steps”);”.

“(da)

that sexual harassment has occurred, is occurring or is likely to occur,”.

““sexual harassment” means harassment of the kind described in section 26(2) of the Equality Act 2010 (unwanted conduct of a sexual nature).”

“Harassment and discrimination: contractual duties of confidentiality

202AContractual duties of confidentiality relating to harassment and discrimination

(1)

Any provision in an agreement between an employer and a worker of the employer (whether a worker’s contract or not) is void in so far as it purports to preclude the worker from making—

(a)

an allegation of, or a disclosure of information relating to, relevant harassment or discrimination, or

(b)

an allegation, or a disclosure of information, relating to the response of an employer of the worker to—

(i)

relevant harassment or discrimination, or

(ii)

the making of an allegation or disclosure within paragraph (a).

(2)

Harassment or discrimination is “relevant” for the purposes of subsection (1) if—

(a)

the harassment or discrimination consists of, or is alleged to consist of, conduct engaged in by—

(i)

an employer of the worker, or

(ii)

another worker of such an employer, or

(b)

the person who is, or is alleged to be, the victim of the harassment or discrimination is—

(i)

the worker, or

(ii)

another worker of an employer of the worker.

(3)

Subsection (1) does not apply to provision in an agreement (an “excepted agreement”) that satisfies such conditions as the Secretary of State may specify by regulations.

(4)

But the Secretary of State may by regulations provide that any provision in an excepted agreement is void in so far as it purports to preclude the worker from making an allegation or disclosure within subsection (1)(a) or (b)—

(a)

to a specified description of person;

(b)

for a specified purpose;

(c)

in specified circumstances.

(5)

The Secretary of State may by regulations—

(a)

provide for this section to have effect as if references to a worker included a specified description of individual who is not a worker as defined by section 230(3) but who—

(i)

works or worked, or is or was provided with work experience or training, in specified circumstances, or

(ii)

has entered into, or works or worked under, a relevant contract of a specified description;

(b)

make provision as to who is to be regarded as an employer of such an individual for the purposes of this section.

(6)

In subsection (5), “relevant contract” means any contract, other than a contract of employment, whether express or implied and (if express) whether oral or in writing, by which an individual undertakes to do or perform (whether personally or otherwise) any work or services for another party to the contract whose status is by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.

(7)

Regulations under this section may—

(a)

make different provision for different purposes;

(b)

make consequential provision.

(8)

For the purposes of this section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet is to be treated as employment by the relevant officer under a contract of employment.

“The relevant officer” has the meaning given by section 43KA(2).

(9)

Nothing in this section affects the operation of any other enactment or rule of law by virtue of which provision in an agreement may be void.

(10)

In this section—

“discrimination” means discrimination within any of sections 13, 15 to 19A and 21(2) of the Equality Act 2010;

“harassment” means harassment of the kind described in subsection (1), (2) or (3) of section 26 of that Act;

“specified” means specified in the regulations.”

“(1A)

The Secretary of State may, by regulations, make provision about dismissal (other than by reason of redundancy) during, or after, a protected period of pregnancy.”

“49ESection 49D: supplemental

Regulations under section 49D may—

(a)

make provision about notices to be given, evidence to be produced and other procedures to be followed by employees and employers;

(b)

make provision for the consequences of failure to give notices, to produce evidence or to comply with other procedural requirements;

(c)

make provision for the consequences of failure to act in accordance with a notice given by virtue of paragraph (a);

(d)

make special provision for cases where an employee has a right which corresponds to a right under section 49D and which arises under a contract of employment or otherwise;

(e)

make provision modifying the effect of Chapter 2 of Part 14 (calculation of a week’s pay) in relation to an employee who is or has been absent from work during, or after, a protected period of pregnancy;

(f)

make provision applying, modifying or excluding an enactment, in such circumstances as may be specified and subject to any conditions specified, in relation to a person during, or after, a protected period of pregnancy;

(g)

make different provision for different cases or circumstances.”

“104IContracts of employment: restricted variations

(1)

An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if—

(a)

the employee was employed for the purposes of a business carried on by the employer, and

(b)

the reason (or, if more than one, the principal reason) for the dismissal is a reason within subsection (2) or (3).

(2)

The reason within this subsection is that—

(a)

the employer sought to vary the employee’s contract of employment to make a restricted variation (see subsection (5)), and

(b)

the employee—

(i)

did not agree to the restricted variation, or

(ii)

where the employer sought to make more than one variation, did not agree to a number of variations that included the restricted variation.

(3)

The reason within this subsection is to enable the employer to employ another person, or to re-engage the employee, under a varied contract of employment to carry out the same duties, or substantially the same duties, as the employee carried out before being dismissed.

(4)

For the purposes of subsection (3), a contract of employment is a “varied” contract of employment if—

(a)

the terms of the contract are not the same as the terms of the contract of employment under which the employee worked before being dismissed, and

(b)

one or more of the differences between the two sets of terms constitutes a restricted variation (see subsection (5));

and, in a case where subsection (3) applies, any reference in this section to the restricted variation is to be read accordingly.

(5)

In this section “restricted variation” means any of the following—

(a)

a reduction of, or removal of an entitlement to, any sum payable to an employee in connection with the employment (but see subsection (6));

(b)

where the amount of any sum payable to an employee in connection with the employment is determined by reference to a measure of the amount of work done by the employee (including a measure referable to results achieved by the employee), a variation of that measure;

(c)

a variation of any term or condition relating to pensions or pension schemes;

(d)

a variation of the number of hours which an employee is required to work;

(e)

a variation of the timing or duration of a shift which meets such conditions as may be specified in regulations made by the Secretary of State;

(f)

a reduction in the amount of time off which an employee is entitled to take;

(g)

a variation of a description specified in regulations made by the Secretary of State;

(h)

the inclusion in a contract of employment of a term enabling the employer to make any variation within any of the preceding paragraphs without the employee’s agreement.

(6)

The Secretary of State may by regulations provide that a reference in subsection (5) to a sum payable to an employee in connection with the employment does not include a reference to—

(a)

a sum payable in respect of—

(i)

any expenses incurred by an employee;

(ii)

any expenses of a specified description incurred by an employee;

(iii)

any expenses incurred by an employee other than expenses of a specified description;

(b)

a payment or benefit in kind, a payment or benefit in kind of a specified description, or a payment or benefit in kind other than one of a specified description.

In this subsection “specified” means specified in the regulations.

(7)

Subsection (1) does not apply in relation to an employee if on the effective date of termination the employee has not yet started work.

(8)

In the case of an employer that is not a local authority, subsection (1) does not apply in relation to an employee if the employer shows that—

(a)

the reason for the restricted 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—

(i)

the employer’s ability to carry on the business as a going concern, or

(ii)

where the employer is a public sector employer, the financial sustainability of carrying out the employer’s statutory functions, and

(b)

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

(9)

In the case of an employer that is a local authority, subsection (1) does not apply in relation to an employee if—

(a)

at the time of the dismissal, a relevant intervention direction has effect in relation to the authority,

(b)

the relevant intervention direction—

(i)

specifies that the reason, or one of the reasons, for the giving of the direction is that the authority is undergoing financial difficulties, and

(ii)

contains provision relating to the financial management or financial governance of the authority, and

(c)

the authority shows that—

(i)

the reason for the restricted variation was to eliminate or significantly reduce, or significantly mitigate the effect of, any of the financial difficulties referred to in paragraph (b)(i), and

(ii)

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

(10)

In determining whether—

(a)

in the case of a public sector employer (other than a local authority), subsection (8)(b) is met, or

(b)

in the case of a local authority, subsection (9)(c)(ii) is met,

an employment tribunal must apply the same principles as would be applied by a court on an application for judicial review.

(11)

Where the employer shows that the conditions in paragraphs (a) and (b) of subsection (8) are met, or (where the employer is a local authority) the conditions in paragraphs (a), (b) and (c) of subsection (9) are met, the matters that must be considered in determining the question whether the dismissal is fair or unfair include the following—

(a)

any consultation carried out by the employer with the employee about varying the employee’s contract of employment;

(b)

if the employee is of a description in respect of which an independent trade union is recognised by the employer, any consultation carried out by the employer with that trade union;

(c)

if the employee is not of a description in respect of which an independent trade union is recognised by the employer, any consultation carried out by the employer with any other person representing the interests of the employee that, at the time of the dismissal, had authority to receive information and to be consulted about the dismissal on the employee’s behalf;

(d)

anything offered to the employee by the employer in return for agreeing to the restricted variation;

(e)

any matters specified for the purposes of this subsection in regulations made by the Secretary of State.

(12)

In this section—

“English local authority” means—

(a)

a county council or district council in England;

(b)

a London borough council;

(c)

the Greater London Authority;

(d)

the Council of the Isles of Scilly;

(e)

the Common Council of the City of London in its capacity as a local authority, a police authority or a port health authority;

(f)

a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;

(g)

a combined county authority established under section 9(1) of the Levelling-up and Regeneration Act 2023;

“local authority” means—

(a)

an English local authority,

(b)

a Welsh local authority, or

(c)

a Scottish local authority;

“public sector employer” means a person that—

(a)

is wholly or mainly funded from public funds,

(b)

is under a statutory duty to carry out any functions of a public nature, and

(c)

so far as carrying out those functions, does not operate on a commercial basis;

“recognised”, in relation to a trade union, has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 (see section 178 of that Act);

“relevant intervention direction” means—

(a)

in the case of an English local authority, a direction under section 15(5) or (6)(a) of the Local Government Act 1999 (powers to deal with failure to comply with duties relating to best value authorities);

(b)

in the case of a Welsh local authority, a direction under section 106 or 107 of the Local Government and Elections (Wales) Act 2021 (asc 1) (intervention powers of Welsh Ministers);

(c)

in the case of a Scottish local authority, an enforcement direction under section 24 of the Local Government in Scotland Act 2003 (asp 1) relating wholly or partly to a failure of the authority to comply with its duties under section 1 of that Act (local authorities’ duty to secure best value);

“Scottish local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

“statutory duty” means a duty imposed by or under any enactment, including—

(a)

a Measure or Act of the National Assembly for Wales or an Act of Senedd Cymru, and

(b)

an Act of the Scottish Parliament;

“statutory functions”, in relation to a public sector employer, means functions of a public nature which the employer is under a statutory duty to carry out;

“Welsh local authority” means—

(a)

a county council or county borough council in Wales;

(b)

a corporate joint committee established under Part 5 of the Local Government and Elections (Wales) Act 2021.

(13)

The reference in subsection (9)(a) to a relevant intervention direction includes a relevant intervention direction given before the day on which the Employment Rights Act 2025 was passed.

104JContracts of employment: variations that are not restricted variations

(1)

This section applies to the dismissal of an employee if—

(a)

the employee was employed for the purposes of a business carried on by the employer, and

(b)

the reason (or, if more than one, the principal reason) for the dismissal is a reason within subsection (2) or (3).

(2)

The reason within this subsection is that—

(a)

the employer sought to vary the employee’s contract of employment,

(b)

the variation was not a restricted variation or, where the employer sought to make more than one variation, none of the variations was a restricted variation, and

(c)

the employee did not agree to the variation.

(3)

The reason within this subsection is to enable the employer to employ another person, or to re-engage the employee, under a varied contract of employment to carry out the same duties, or substantially the same duties, as the employee carried out before being dismissed.

(4)

For the purposes of subsection (3), a contract of employment is a “varied” contract of employment if—

(a)

the terms of the contract are not the same as the terms of the contract of employment under which the employee worked before being dismissed, and

(b)

none of the differences between the two sets of terms constitutes a restricted variation;

and, in a case where subsection (3) applies, any reference in this section to the variation is to be read accordingly.

(5)

The matters that must be considered in determining the question whether the dismissal is fair or unfair include the following—

(a)

the reason for the variation;

(b)

any consultation carried out by the employer with the employee about varying the employee’s contract of employment;

(c)

if the employee is of a description in respect of which an independent trade union is recognised by the employer, any consultation carried out by the employer with that trade union;

(d)

if the employee is not of a description in respect of which an independent trade union is recognised by the employer, any consultation carried out by the employer with any other person representing the interests of the employee that, at the time of the dismissal, had authority to receive information and to be consulted about the dismissal on the employee’s behalf;

(e)

anything offered to the employee by the employer in return for agreeing to the variation;

(f)

any matters specified for the purposes of this subsection in regulations made by the Secretary of State.

(6)

In this section—

“recognised”, in relation to a trade union, has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 (see section 178 of that Act);

“restricted variation” has the same meaning as in section 104I.

104KRedundancy: replacement of employees with people who are not employees

(1)

An employee who is dismissed is to be regarded for the purposes of this Part as unfairly dismissed if—

(a)

the employee was employed for the purposes of a business carried on by the employer, and

(b)

the reason (or, if more than one, the principal reason) for the dismissal is to enable the employer to replace the employee with an individual who is not an employee of the employer.

(2)

For the purposes of this section—

(a)

an employer replaces an employee with an individual who is not an employee of the employer if (and only if)—

(i)

the individual, or the individual taken together with one or more employees of the employer or other individuals, is to carry out activities, in pursuance of a relevant contract, for the purposes of the employer’s business,

(ii)

those activities are the same, or substantially the same, activities as the employee, or the employee taken together with one or more other employees of the employer, carried out before being dismissed, and

(iii)

the employee’s dismissal is not wholly or mainly attributable to the fact that the requirements of the employer’s business for those activities to be carried out have ceased or diminished or are expected to cease or diminish;

and any reference in this section to replacing an employee is to be read accordingly;

(b)

a reference to replacing an employee with an individual who is not an employee of the employer includes the case where the individual is the one who has been dismissed;

(c)

“relevant contract”, in relation to an employer, means a contract, other than a contract of employment, to which the employer is a party (whether or not the individual carrying out activities in pursuance of the contract is a party to it).

(3)

Subsection (1) does not apply in relation to an employee if on the effective date of termination the employee has not yet started work.

(4)

In the case of an employer that is not a local authority, subsection (1) does not apply in relation to an employee if the employer shows that—

(a)

the reason for the replacement 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—

(i)

the employer’s ability to carry on the business as a going concern, or

(ii)

where the employer is a public sector employer, the financial sustainability of carrying out the employer’s statutory functions, and

(b)

in all the circumstances the employer could not reasonably have avoided the need to replace the employee.

(5)

In the case of an employer that is a local authority, subsection (1) does not apply in relation to an employee if—

(a)

at the time of the dismissal, a relevant intervention direction has effect in relation to the authority,

(b)

the relevant intervention direction—

(i)

specifies that the reason, or one of the reasons, for the giving of the direction is that the authority is undergoing financial difficulties, and

(ii)

contains provision relating to the financial management or financial governance of the authority, and

(c)

the authority shows that—

(i)

the reason for the replacement was to eliminate or significantly reduce, or significantly mitigate the effect of, any of the financial difficulties referred to in paragraph (b)(i), and

(ii)

in all the circumstances the authority could not reasonably have avoided the need to replace the employee.

(6)

In determining whether—

(a)

in the case of a public sector employer (other than a local authority), subsection (4)(b) is met, or

(b)

in the case of a local authority, subsection (5)(c)(ii) is met,

an employment tribunal must apply the same principles as would be applied by a court on an application for judicial review.

(7)

Where the employer shows that the conditions in paragraphs (a) and (b) of subsection (4) are met, or (where the employer is a local authority) the conditions in paragraphs (a), (b) and (c) of subsection (5) are met, the matters that must be considered in determining the question whether the dismissal is fair or unfair include the following—

(a)

any consultation carried out by the employer with the employee about replacing the employee;

(b)

if the employee is of a description in respect of which an independent trade union is recognised by the employer, any consultation carried out by the employer with that trade union;

(c)

if the employee is not of a description in respect of which an independent trade union is recognised by the employer, any consultation carried out by the employer with any other person representing the interests of the employee that, at the time of the dismissal, had authority to receive information and to be consulted about the dismissal on the employee’s behalf;

(d)

any matters specified for the purposes of this subsection in regulations made by the Secretary of State.

(8)

In this section—

“contract” means a contract whether express or implied and (if it is express) whether oral or in writing;

“English local authority” means—

(a)

a county council or district council in England;

(b)

a London borough council;

(c)

the Greater London Authority;

(d)

the Council of the Isles of Scilly;

(e)

the Common Council of the City of London in its capacity as a local authority, a police authority or a port health authority;

(f)

a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;

(g)

a combined county authority established under section 9(1) of the Levelling-up and Regeneration Act 2023;

“local authority” means—

(a)

an English local authority,

(b)

a Welsh local authority, or

(c)

a Scottish local authority;

“public sector employer” means a person that—

(a)

is wholly or mainly funded from public funds,

(b)

is under a statutory duty to carry out any functions of a public nature, and

(c)

so far as carrying out those functions, does not operate on a commercial basis;

“recognised”, in relation to a trade union, has the same meaning as in the Trade Union and Labour Relations (Consolidation) Act 1992 (see section 178 of that Act);

“relevant intervention direction” means—

(a)

in the case of an English local authority, a direction under section 15(5) or (6)(a) of the Local Government Act 1999 (powers to deal with failure to comply with duties relating to best value authorities);

(b)

in the case of a Welsh local authority, a direction under section 106 or 107 of the Local Government and Elections (Wales) Act 2021 (asc 1) (intervention powers of Welsh Ministers);

(c)

in the case of a Scottish local authority, an enforcement direction under section 24 of the Local Government in Scotland Act 2003 (asp 1) relating wholly or partly to a failure of the authority to comply with its duties under section 1 of that Act (local authorities’ duty to secure best value);

“Scottish local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994;

“statutory duty” means a duty imposed by or under any enactment, including—

(a)

a Measure or Act of the National Assembly for Wales or an Act of Senedd Cymru, and

(b)

an Act of the Scottish Parliament;

“statutory functions”, in relation to a public sector employer, means functions of a public nature which the employer is under a statutory duty to carry out;

“Welsh local authority” means—

(a)

a county council or county borough council in Wales;

(b)

a corporate joint committee established under Part 5 of the Local Government and Elections (Wales) Act 2021.

(9)

The reference in subsection (5)(a) to a relevant intervention direction includes a relevant intervention direction given before the day on which the Employment Rights Act 2025 was passed.”

“(go)

subsection (1) of section 104I (read with subsections (7) to (9) of that section) applies,

(gp)

subsection (1) of section 104K (read with subsections (3) to (5) of that section) applies,”.