At the beginning of February, the government published an updated timeline for implementation of the Employment Rights Act 2025 (the Act).  In addition, five further consultation papers relating to changes in the Act were published.  In this post, we look at the changes to the timetable and consider the consultation papers and what this means for employers.

Implementation Timetable

The original implementation roadmap on the Act was published in July 2025.  Although the Act did not receive Royal Assent until 18 December 2025 and there was therefore concern that there would be delay with some of these provisions, the government’s revised roadmap published on 3 February, contains only a few changes to the timetable.  The key points are:

  • Key reforms which were anticipated for April 2026 are expressly coming into force on 6 April 2026.  The new Fair Work Agency will be formally established on 7 April.
  • The introduction of electronic and workplace balloting has been delayed.  It will now be brought in in two phases:  the first for statutory trade union ballots will come into force in August 2026 and balloting for union recognition and derecognition will be in 2027.
  • The changes to fire and rehire has been delayed from October 2026 to January 2027.

Government consultations

In addition to the updated timeline, the government has issued further consultation papers.  These are summarised below.

Fire and Rehire:

  • The Act introduces new provisions which limit the practice of fire and rehire.   One of the proposals is that a dismissal will become automatically unfair if the reason or the principal reason for the dismissal is that the employer sought to make a “restricted variation” and the employee did not agree to such a change. Restricted variations relate to various areas, including a change in pay or benefits and to hours of work. The consultation paper consults on two key elements:
    • What changes to pay should be classed as a restricted variation (i.e., whether this is limited to only reductions in pay, or whether this extends to cover other benefits and expenses).   The government’s preferred option is that all expenses and benefits in kind should be excluded from the restricted variation definition.  This preserves flexibility for the employer. Alternatively, they have included an option that only certain types with the “character of pay”, such as share schemes with guaranteed or predictable awards or travel and accommodation expenses which are essential to the ability to perform the role.  If the first option were adopted, then employers would lawfully be able to use dismissal to remove contractual expenses or benefits, but this would be subject to ordinary fairness provisions and the factors set out in the legislation would be taken into account in determining fairness.
    • What changes to shift patterns should be included as a restricted variation (i.e. – should any change to working patterns class as a restricted variation).  The governments options are that only extreme changes would be included, such as from weekday working to weekend working or day to night working.  The other alternative is that no shift pattern changes are included as restricted variations and again this would mean that any dismissal to vary shift patterns would then be assessed under enhanced ordinary unfair dismissal provisions.
  • The consultation paper is available here: Make Work Pay: fire and rehire – changes to expenses, benefits, and shift patterns – GOV.UK and is open until 1 April 2026.

Trade Union Recognition and Balloting

  • This consultation consults on the revised Code of Practice on Access and Unfair Practices during the Recognition and Derecognition Process. This updates rules for worker communication and access of trade unions to the workplace.
  • The consultation also requests views on proposed changes to unfair practice legislation with the aim of preventing interference in ballots. This is specifically ahead of the introduction of electronic voting due in 2027.
  • The consultation paper is available here: Make Work Pay: recognition code of practice and e-balloting unfair practices – GOV.UK and is open until 1 April 2026.

Tipping Policy

  • This consultation invites opinions on the new requirement for employers to regularly review their tipping policies and consult workers when developing or reviewing their policies.
  • It consults on updates to the Code of Practice on Fair and Transparent Tip Distribution and is also looking for opinions on non-statutory guidance on tip distribution, with the aim of tightening legislation to ensure that tips and service charges are passed to workers transparently in full.
  • The consultation paper is available here: Make Work Pay: strengthening the law on tipping – GOV.UK and is open until 1 April 2026.

Flexible Working

  • This consultation requests views on the process for a flexible working request, and on what grounds an employer should be able to refuse such a request with the introduction of a “reasonableness test”.
  • The Act includes a provision to introduce a new statutory test of reasonableness for refusing a flexible working request.  Employers will be required to explain why their refusal was reasonable and it must still be linked to one of the fair reasons for dismissal.  It is also proposed that there will be a mandatory consultation process which will be set out in secondary legislation.   Acas provides a non-statutory guidance and the suggested process draws on the existing guidance.
  • It considers what training and resources business may need to process such requests so response times can be shortened, and how access to flexible working can be improved.
  • The consultation is also asking for views on the “light touch” consultation process. The proposed consultation process includes the following key areas:
    • Where an employer is considering rejecting a statutory flexible working request, the employer should meet with the employee making the request.  This meeting should happen within six weeks of the request in order to allow for potential follow-up conversations.
    • Someone with authority should attend the meeting and the decision-maker will be required to keep a record of the discussion. 
    • The consultation sets out proposals for what the meeting should cover including the exploring of alternatives.
    • In addition to notifying the employee of the outcome of the request, employers would be required to provide written notification of the outcome of the meeting and the outcome of the request.
  • The consultation paper is available here: Make Work Pay: improving access to flexible working – GOV.UK and is open until 30 April 2026.

Agency Work Framework:

  • The Act includes provisions to extend the definition of “employment business” in the Employment Agencies Act 1973 to include umbrella companies.  This consultation consults on how the agency regulatory framework should be adapted to ensure that the framework applies effectively to umbrella companies and the role they play within an agency relationship.
  • It also questions whether broader changes are required to modernise the rules, including simplifying the framework and tightening rules, and is aiming to provide protection for workers whilst ensuring flexibility can be retained.
  • The consultation paper is available here: Make Work Pay: modernising the Agency Work Regulatory Framework – GOV.UK and is open until 1 May 2026. 

Collective redundancy trigger

  • This consultation looks at the threshold for collective redundancies.  Currently, the Trade Union and Labour Relations(Consolidation) Act 1992 (TULRCA) requires that an employer carries out collective redundancy consultation where an employer proposes to make 20 or more redundancies within a 90 day period at one establishment. 
  • The Act proposes an additional threshold which will consider the number of redundancies across the whole business. 
  • The consultation looks at the different options for identifying the threshold:  Whether it should be a fixed number; a percentage of the workforce; or a variable approach based on the employer size. 
  • The consultation also considers how to calculate the percentage or total number of employees.  This could be calculated over a period of months prior to a particular date to allow for fluctuations or calculated on a regular basis (monthly, quarterly or annually) and that number would apply to redundancies made in the next month, quarter or year.

 The consultation is available here: Make Work Pay: Threshold for triggering collective redundancy obligations  and  will close on 21 May 2026.

Detriment for taking industrial action

  • This consultation looks at the definition of detriment under s146 TULRCA.  Case law has determined that s 146 which protects trade union members from detriment for taking part in trade union activities does not extend to detriment for taking industrial action. 
  • The Act  introduces protection for workers against detriment which penalises, prevents or deters the worker from taking industrial action. Further regulations will set out which detriments will be prohibited.
  • This consultation looks at which forms of detriment should be prohibited and whether the provision should extend to all detriments.

The consultation paper is available here – Make Work Pay: Protection from detriments for taking industrial action  and is open until 23 April 2026

For employers, it is worth considering whether these topics are likely to have a significant impact on their workforce and employment practices, and if so whether to submit a response to the consultation papers.