To avoid creating a loophole in the legislation, the Government has confirmed that qualifying agency workers on a zero or 'low hours' contract will be included in the zero hours contracts measures. 

Another amendment will allow contracting-out from the zero hours contracts measures under the terms of a collective agreement, allowing employers and trade unions to agree to exclude the new rights and replace them with something else if new terms are incorporated into the contract.  For agency workers, the collective agreement can be with the person who has the contract with the agency worker. 

New anti-avoidance provisions seek to prevent any manipulation of hours made available to a worker with the intention of making a lower guaranteed hours offer or avoiding the obligation altogether.

The ERB is amended to:

• Allow end hirers to be obliged to offer guaranteed hours to qualifying agency workers;  
• Place responsibility on both the employment agency and the end hirer for providing an agency worker with reasonable notice of shifts, with tribunals able to apportion liability appropriately;
• Allow regulations to prescribe how agency workers should receive notice of shifts and any cancellations, curtailments or movements (but not to how end hirers should notify employment agencies of available shifts or changes to these shifts);
• Allow employment agencies to be responsible for paying short notice cancellation, movement or curtailment payments to eligible agency workers (subject to an ability to recoup these from the hirer where it is their responsibility for up to two months after the ERB is passed, after which this will need to be provided for in the agreement between the hirer and the agency);
• Clarify the obligation to “make work available” by referring to the hours that the employer must provide and the worker would be required to work, and how the notice provisions will operate when a shift has been offered to more workers than are needed to do it (although there's still no definition of what “short notice” means in relation to shift cancellation); and 
• Provide for a new potential claim to apply when an employer has tried to manipulate or avoid their obligations (save as agreed in a collective agreement).

The reference period for calculating average hours has still not been defined, although a period of 12 weeks has previously been mentioned. 

New guidance about the application of zero hours measures to agency workers will be published before the measures come into force.

Further consultation to come on:

• Ensuring agency workers receive reasonable notice of shifts.
• Rights to payments for short notice cancellation, curtailment and movement of shifts.
• What constitutes a temporary need (to be defied in regulations, in response to concerns about seasonal or temporary work).

The consultation response confirms that the maximum period of the protective award will double from 90 days to 180 days.  The proposal to make interim relief available to employees bringing claims for breach of collective redundancy or fire and rehire obligations will not be taken forward. 

Instead of removing the words "at one establishment" to determine the number of proposed redundancies across the business (as previously proposed), the ERB is amended to allow further regulations to specify an alternative threshold number for collective consultation.  This will be either a specified number, a number defined by a specified percentage of employees or determined in another way, as long as the number is not lower than 20.  This means that collective consultation will only be triggered if there are 20 or more redundancies at one establishment OR the alternative threshold is met.  This concession will be welcomed by multi-site employers who had been concerned about the scope for being in a continual state of collective consultation, although it remains to be seen where the government will set the alternative threshold.

Also, the ERB is amended to clarify that employee representatives will not all need to be consulted together nor the same agreement reached with all of them in relation to separate batches of redundancies.

Further guidance will be issued for employers on consultation processes for collective redundancies. 

Further consultation to come on: 

• Strengthening the collective redundancy framework in 2025.
• Updating the Code of Practice on Dismissal and Re-engagement in 2025.

The ERB provides an entitlement for employees to Statutory Sick Pay (SSP) from the first day of sickness absence and removes the 3-day waiting period. 

The Government has confirmed that those earning below the Lower Earnings Limit (currently £123/week but £125/week from 6 April 2025) who find themselves unable to work due to sickness will either receive 80% of their average weekly earnings or the current rate of SSP (whichever is lower).

The Government's aim is to ensure workers get comparable rights and protections when working through an umbrella company as they would when taken on directly by an employment business, as well as ensuring temporary workers are protected from large, unexpected tax bills caused by non-compliant umbrella companies.

The ERB is amended to:

• Define umbrella companies to allow for their regulation and to bring them within scope of the Employment Agency Standards Inspectorate’s (and later, the Fair Work Agency’s) remit, to allow enforcement action to be taken against any umbrella companies that do not comply;
• Move the responsibility to account for PAYE from the umbrella company that employs the worker to the recruitment agency that supplies the worker to the end client. This will take effect from April 2026.  Where there's no agency in the supply chain, this responsibility will sit with the end client.

The ERB is amended to strengthen the powers of the Government's new Fair Work Agency (FWA) to:

• Enforce failure to keeping adequate records of annual leave. Employers will be required to keep records of compliance with the Working Time Regulations 1998 on annual leave and pay for six years, with failure to comply punishable as a criminal offence with a fine.
• Enforce failure to pay statutory payments.  The ERB is amended to provide the FWA with powers to issue a notice of underpayment to the employer of non-payment or incorrect payment of any statutory payment (e.g. SSP, holiday pay or the national minimum wage) requiring that they pay the amount due within 28 days.  Underpayments may go back 6 years from the date of giving notice and can relate to sums due before the ERB comes into force.  The notice can impose a penalty up to a maximum of £20,000 which may be discounted by 50% if sums due are paid within 14 days of the notice, with courts able to enforce a failure to comply with a notice.
• Bring proceedings in the Employment Tribunal on a worker's behalf.  Where a worker has a right to bring a claim in the Employment Tribunal, a new power allows the FWA to bring those proceedings in place of the worker, as well as give legal advice or representation in employment, trade union or labour relations cases.  There is a provision requiring the employer to pay a charge so that the FWA can recover the enforcement costs.  It remains to be seen how this will work in practice or how often the powers will be used or funded.  We await further details.

During Parliamentary debates, the Government confirmed that the FWA will bring together enforcement functions currently split between several different enforcement agencies and stated its commitment to giving the FWA the tools and resources it needs to do its job effectively, with details around the implementation and funding to be provided in due course.

Further to the plans to ban dismissals of employees who are pregnant, on maternity leave or during a six month return to work period, an amendment specifies that regulations will set out specific notices that will need to be given to the employee, the evidence the employer will need to produce and “other procedures” that will need to be followed. The explanatory notes confirm the intention to ban such dismissals except in specific circumstances. We await further details, to be published in the regulations.

Although not a government amendment (instead, put forward by Labour MP Sarah Owen), a new provision for leave after miscarriage is likely to be backed by the Government.  Mothers and their partners would be given the right to two weeks of bereavement leave if they have suffered a pregnancy loss before 24 weeks.  Currently, parental bereavement leave only applies where a child dies or there is a stillbirth from 24 weeks onwards.

Whilst the amendment was not accepted before the ERB moved to the House of Lords, the Government accepted the principle of bereavement leave for pregnancy loss.  Further discussions are likely to take place with a view to the ERB being amended during its passage in the House of Lords.

After responding to the consultation, the Government amended the ERB to:

• Improve the process and transparency around trade union recognition, including streamlining the recognition process and strengthening protections against unfair practices by implementing all five measures that the Government consulted on in relation to unfair practices;
• Extend access provisions to cover digital access and introduce a fast-track route for achieving an access agreement where certain conditions are met (alongside ensuring appropriate penalties are in place for non-compliance);
• Abolish the 10-year requirement for trade unions to ballot members on the maintenance of a political fund (although members will be given notice of their right to opt-out every 10 years);
• Simplify the current information requirements on industrial action ballots and notice to employers and allow trade unions to provide a shorter 10-day notice period for industrial action (rather than 14 days);
• Deliver e-balloting, to increase participation in statutory ballots and enable the demonstration of clear mandates;
• Extend the expiry of mandate for industrial action from 6 to 12 months (a significant amendment as it will mean industrial action is easier to initiate).