The new Employment Rights Bill is here, with the aim to address the power imbalance in employment relationships and “Make Work Pay”.
The Bill contains more rights for employees than most people will have ever seen in their working life. Employers and employees across the country are now bracing themselves for the measures, set to come into force in late 2026. While more needs to be done to strengthen whistleblowers’ routes, rights and support to speak up at work, we welcome the new specific provision for people to raise concerns about sexual harassment, which has been added as a seventh type of wrongdoing specified in 43B of the Employment Rights Act.
Some of the other new measures include:
- Day one unfair dismissal rights (previously two years’ service)
- Immediate access to statutory sick pay;
- Stronger access to flexible working;
- Greater protection for employees on or returning from parental leave;
- A restriction on fire and rehire practices and exploitative zero-hour contracts; (initially intended to be a “ban”)
- A widening of equal pay claims
The Expert Take:
Whistleblowers already have a day one right to claim unfair dismissal if the reason for their dismissal was because they made protected disclosures, but this right is not always well understood by them or their employers. Our experience is that when an employee has under two years’ service, they are more vulnerable to unscrupulous employers paying lip service to their disclosures, or failing to recognise that certain rights and obligations have been triggered. Often, instead of acting on the information shared, employers proceed to dismiss quickly, carelessly and illegally, deliberately or otherwise, capitalising on employees’ lack of two years’ service as a means to quash any subsequent claims for retaliatory treatment.
With the introduction of a day one right in all unfair dismissal claims, employers will have to think twice before proceeding with dismissal in the early days of an employment relationship. This change should also prompt employers to genuinely listen, investigate and seek to resolve an employee’s concerns and protect them in the process, overall strengthening the rights of whistleblowers. This in turn, protects the interests of the public.
What would have assisted Claimants further would be an extension of time limits to make a claim. At present they are very short at three months less one day from the effective date of termination or detriment (in relation to whistleblowing claims). This means Claimants have to be quick to review their position and ensure they are ready to make a claim within this time.
Further we would like to see obligations on employers to have effective whistleblowing arrangements in place and a duty to investigate.
Lastly, and most importantly, would be to introduce a positive duty to take reasonable steps to prevent the victimisation of whistleblowers, as is about to come in force in relation to sexual harassment. A small subsection of what would be considered reasonable steps under the new duty to prevent sexual harassment relates to organisations heeding the position of witnesses (as per the EHRC guidance). We think this is a small step forward for whistleblowers, particularly in tandem with the new category of protected disclosures in the bill. However if there were a specific duty to take reasonable steps to prevent the victimisation of whistleblowers across all categories of wrongdoing, it would elevate this important issue and be a game changer in how whistleblowers are treated in the workplace.
Contact us:
If you are uncertain about what these changes mean for you, and what your rights are as a whistleblower, please get in touch with James and West Law today at enquiries@jamesandwest.co.uk. Seeking advice early is always of value, to ensure you know your rights if you are considering a claim.