So far the beginning of February has seen no fewer than five new consultations on various provisions in the Employment Rights Act 2025 (the Act)!
We thought it would be useful to provide a quick introduction to these so you can get a feel for what the government is planning.
The following consultations are currently open, with closing dates ranging from April to May 2026:
Fire and rehire
By way of reminder, once the fire and rehire provisions come into force in January 2027 any dismissal or replacement of an employee in order to make changes to core terms in their employment contract will be automatically unfair. These changes are classified as "restricted variations" under the Act.
The consultation (which closes on 1 April) deals with two kinds of potential restricted variation:
Employment expenses and benefits in kind
The government's view is that employers should have flexibility to make reasonable operational adjustments to the way they cover work expenses and benefits in kind. Its preferred option is to make regulations to exclude all expenses and benefits in kind from being restricted variations. The other option is to exclude all expenses and benefits in kind apart from certain types of share schemes, travel expenses and accommodation.
Shift patterns
The government acknowledges that employers need the flexibility to make reasonable operational changes but also that this needs to be balanced against the adverse effect that significant changes in an employee's schedule can have on their life.
Its preferred option is to make a narrow category of the most extreme shift changes restricted variations. It identifies these as changes from day to night working (or vice versa) and weekday to weekend working (or vice versa). Such changes would amount to a restricted variation. The other option is to make any changes to the timing or duration of a shift a restricted variation.
Trade unions
This section covers two consultations (both closing on 1 April) relating to trade union balloting procedures.
Electronic and workplace balloting for statutory trade union ballots is currently due to be introduced in August, while for recognition and derecognition ballots we will have to wait until 2027.
Revised Code of Practice on Access and Unfair Practices during Recognition and Derecognition Ballots
The consultation on the revised Code of Practice asks for views on updates to the Code of Practice on Access and Unfair Practices during Recognition and Derecognition Ballots. The Code has been amended to allow for the changes that will be made by the Act to the Trade Union and Labour Relations (Consolidation) Act 1992. These include:
The provision by the employer of certain information about the workers in a bargaining unit within 5 days of being notified of receipt of a trade union's application for recognition.
The setting of a timetable for the parties to a recognition agreement to agree the terms on which the union can access the workers in the proposed bargaining unit.
The strengthening of the prohibition of unfair practices taken by either the employer or the union to improperly influence the outcome of a recognition or derecognition ballot.
Unfair practices in electronic balloting
The government plans to provide for two methods of electronic balloting for unions:
- Pure e-balloting – where the distribution of the voting pack and the voting itself is done electronically
- Hybrid e-balloting – where ballots are distributed via post and voting is done either electronically or via post.
Electronic balloting will be introduced in phases. In phase one unions will be able to use either voting method for all statutory union ballots and elections, other than for recognition and derecognition ballots (which also involve the balloting of workers who are non-union members). Phase two will allow pure electronic balloting to be used in recognition and derecognition ballots once necessary safeguards are in place to stop interference.
The government is looking at whether the existing list of unfair practices that improperly influence the outcome of a ballot related to union recognition or derecognition should be amended. It proposes legislating to prohibit employers or unions from interfering in pure electronic ballots (these would bring the operation of a ballot within the scope of the employer's email systems) and seeks views on how this could be done without unintended consequences.
Flexible working
The day one right to request flexible working is due to come in sometime in 2027. The consultation (which closes on 30 April) seeks views on a "light touch" process which employers will have to follow when considering statutory flexible working requests. This draws on the existing Acas non-statutory guidance.
"Light touch" process
- Setting up the meeting
- Where the employer is considering rejecting a statutory flexible working request it must meet the employee to consider ways to address the challenges posed by the requested arrangement and explore whether a suitable alternative arrangement could be agreed.
- The meeting has to be held without unreasonable delay and within the two-month decision-making period. In practice it should be held within six weeks of the request and the employee must be informed about the context of the meeting in advance to allow them to prepare.
- The decision-maker (someone with the authority to make decisions about flexible working arrangements, such as the employee's line manager) must attend the meeting and will be required to keep a record of the discussion.
- During the meeting
- The meeting must allow for sufficient discussion of the request and any potential alternatives and the decision-maker must clarify whether the employee would like the proposed request to be considered as a reasonable adjustment under the Equality Act 2010.
- The decision-maker must clearly communicate any challenges they identify with the original request and explain why they feel it would not be feasible to accommodate the request, or why it is not reasonable referring to the relevant business reason(s). They must consider whether there might be ways to navigate these challenges and accommodate the request (for instance by suggesting a different start date or by choosing to trial an arrangement for a fixed period of time).
- The decision-maker should also consider whether there are feasible alternative arrangements if the original request can't be accommodated. Proposed alternative arrangements can only be rejected where a relevant business reason applies. The outcome of the discussion must be recorded and communicated with the employee.
- Written notification
- Provide written notification of both the outcome of the meeting (a summary of what was discussed and any conclusions or next steps agreed during the meeting) and the outcome of the request.
Training, resources and support
The consultation also asks about the type of challenges faced by employers when handling statutory flexible working requests, and about the desired format, location and content of additional guidance on flexible working and the barriers to flexible working that the government should explore in the future.
Strengthening the law on tipping
The new provisions in relation to tipping are due to come into force in October. The consultation (which closes on 1 April) seeks input about implementing the Act's requirements and improving existing guidance.
The Act provides that before producing the first version of a written tips policy, an employer will be required to consult about the policy with recognised trade union representatives or workers' representatives. Where there are no trade union or worker representatives the employer will be able to consult directly with workers. The tips policy will have to be reviewed at least once every three years and union or workers' representatives, or the workers directly, will have to be consulted with.
Modernising the agency work regulatory framework
The Act will amend the definition of "employment business" in the Employment Agencies Act 1973 to include umbrella company activities. This will bring them in the scope of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 and the Agency Workers Regulations 2010.
The consultation (which closes on 1 May) asks for how best to adapt and modernise the rules while maintaining strong protections for workers. The areas under review include security (ensuring fair payment amongst other things), transparency (addressing clarity for workers and pay transparency), choice (not being forced to use umbrella companies and freedom to turn down work without detriment), and streamlining to reduce administrative burden.
