ERA 25 implementation timeline updated
The ERA 25 implementation timeline has been updated once again. Key changes are that the provisions strengthening tipping law will now come into force on 1 January 2027, having most recently been scheduled "by the end of 2026". Changes to fire and rehire rules have been delayed until March 2027 (see below). Meanwhile, the zero hours contract provisions relating to the right to guaranteed hours and reasonable notice of, and payment for, shift cancellations or changes no longer have an implementation date - the timeline will be updated on that following the outcome of the recent consultation process. A month by month schedule has also now been published for other provisions previously scheduled to come into force "during 2027". For full details, see ERA 25 implementation timeline.
Changes to fire and rehire rules delayed until March 2027
The UK Government response to the fire and rehire – changes to expenses, benefits and shift patterns consultation has been published. The response includes more detail on how expenses, benefits and shift patterns will be treated, and it also confirms an intention to implement the ERA 25 fire and rehire provisions in March 2027 and not as previously indicated in January. The effect of the ERA 25 provisions is that some core contractual terms are protected as "restricted variations". If an employee is dismissed for not agreeing to changes to any such term, the dismissal will be automatically unfair, subject to a limited exception for employers facing serious financial difficulties. The core terms include pay, total hours, leave entitlement, pensions and certain shift entitlements. Dismissal to replace an employee with a non-employee doing substantially the same job will also be automatically unfair. Dismissals arising from changes to non-core terms ("unrestricted variations") may also be unfair under enhanced ordinary unfair dismissal protections that require meaningful consultation and information sharing.
The consultation response confirms that the changes to travel expenses, accommodation expenses and long-term accommodation as a benefit in kind will fall under the "restricted variation" provisions. Changes to shifts from day to night work (or vice versa) and weekday to weekend working (or vice versa) will also be treated as restricted variations. Changes to all other expenses, benefits or shift patterns will be treated as unrestricted variations.
Alongside the response, a draft revised Code of Practice on Dismissal and Re-engagement (intended to replace the 2024 Code) and an accompanying consultation has been published. The consultation is open for responses until 17 December 2026.
UK Government response to consultation on new family friendly dismissal protections
The UK Government has published its response to its consultation on enhanced dismissal protections for pregnant women and new mothers. The response contains some significant changes to not only the rights of pregnant women and new parents, but also the legal test to be applied by employment tribunals when assessing whether a dismissal is fair. The enhanced dismissal protections will apply for pregnant women and new mothers from when they notify their employer of the pregnancy until 6 months after they return from leave. For all other types of relevant leave (adoption, shared parental leave, neonatal care leave and bereaved partner's paternity leave) the enhanced protections start from the first day of leave. For adoption leave, the protection continues until 6 months after the employee's return. For the other forms of leave, protection only continues for 6 months following their return if at least 6 weeks' leave has been taken. Where a pregnancy ends before 24 weeks, the protection lasts for 2 weeks from the end of the pregnancy. The protections are available from the first day of employment, with no qualifying service requirement.
Where a dismissal takes place during the protected period, the employer will still have to show that the reason for the dismissal is one of the five potentially fair reasons set out in the Employment Rights Act 1996. However, thereafter, rather than showing that the decision to dismiss was within the "band of reasonable responses" open to an employer to make, employers will have to objectively justify it. That means employers will have to show that the dismissal was a proportionate means of achieving a legitimate aim, and that there were no less discriminatory alternatives available.
This concept of justification is well known to employers as it mirrors the justification defence available for some discrimination claims. However, in the context of unfair dismissal it is a higher threshold for an employer to meet when demonstrating fairness. Another key difference is that it is for the tribunal to decide whether the treatment, in this case the dismissal, is justified. That is a significant step away from a standard unfair dismissal situation where employment tribunals must consider what a reasonable employer might do and not substitute their own view.
The changes are intended to take effect from October 2027.
Consultation on draft Code of Practice on requests for flexible working published
Hot on the heels of the UK Government's response to its consultation on improving flexible working (see our October ERA update), Acas has published a consultation on its updated draft Code of Practice on requests for flexible working. The Code is being updated to reflect the changes being made to the statutory flexible working regime via ERA 25. These changes include that an employer may only refuse a request where it is reasonable to do so (for one or more of the statutory business reasons), an employer must explain why it considers its refusal to be reasonable, and an employer must follow mandatory consultation steps. The mandatory consultation steps will be set out in secondary legislation. The consultation is open for responses until 17 December 2026. The changes are intended to take effect in October 2027.
