1. EMPLOYMENT LAW UPDATE
30th April 2014
Presented by
Ben Power, Andrew Peters, Louise Maynard
Solicitors, Springhouse Solicitors
2. Agenda
• Introduction – Ben Power
• New TUPE and Mandatory ACAS Conciliation
– Andrew Peters
• New Whistleblowing, Flexible Working and
Changes to Parental Rights – Louise Maynard
• Cases Update covering calculation of holiday
pay, collective redundancies, maternity rights
and fairness of dismissal – Ben Power
• End and refreshments
4. New TUPE
The Old:
Transfer of Undertakings (Protection of
Employment) Regulations 2006
The New:
The Collective Redundancies and Transfer of
Undertakings (Protection of Employment)
(Amendment) Regulations 2014
5. New TUPE
Dismissals following transfer less likely to be
unfair
• no longer automatically unfair unless the
‘sole or principal reason for their dismissal is
the transfer’
6. New TUPE
Dismissals following transfer less likely to be
unfair (continued)
• new general defence that the dismissal was
for an ‘economic, technical or organisational
reason involving changes in the workforce,
including changes in working duties, and
numbers of employees’
7. New TUPE
Changing contracts after transfer will be made
easier
• changes are invalid only if ‘the sole or
principal reason for the dismissal is the
transfer’, with an ETO (economic, technical
or organisational) defence
• changes allowed where this is in the contract
of employment (now would be a good time
to review your contracts)
8. New TUPE
Changing contracts after transfer will be made
easier (continued)
• changes allowed where this is in the contract
of employment (now would be a good time
to review your contracts)
9. New TUPE
Employee information must be provided
earlier
• transferor must provide basic information
about transferring staff and any problems or
disputes 28 days before the transfer date
• this used to be 14 days
10. New TUPE
Service provision contracts are less likely to be
caught
• new TUPE will only apply where contract
carried out by the new contractor is
‘fundamentally the same’ way as before
11. New TUPE
Large scale redundancies: consultation will be
easier
• transferees planning to make more than 20
people redundant are able to carry out their
consultation before the transfer takes place,
with consent of existing employer
12. New TUPE
Flexibility for micro businesses
• businesses with fewer than 10 employees
will be able to consult with them directly,
without the need for the election of
representatives
13. New TUPE
Union negotiated terms will be easier to deal
with
• collective agreement terms can now be
changed after 1 year provided the changes,
when considered alongside the whole
employment contract, leave the employee no
worse off
14. New TUPE
Union negotiated terms will be easier to deal
with (Continued)
• where there is a union agreement in place,
terms subsequently agreed (such as pay
rises) will not affect transferred employees
16. Mandatory ACAS Conciliation
Enterprise and Regulatory Reform Act 2013,
Schedules 1 and 2
ACAS Guide – Early Conciliation Explained
New rules in force 6 May 2014
17. Mandatory ACAS Conciliation
Claimants must notify ACAS about the claim:
• before it is commenced
• by online/post/telephone
• in respect of each respondent
Forms may be rejected if incorrectly filled in
18. Mandatory ACAS Conciliation
When notification is not required:
• ACAS already contacted
• certain types of claim not covered (query
TUPE, counter-claims)
19. Mandatory ACAS Conciliation
Starting conciliation – ACAS contact with
parties:
• ACAS contacts claimant for consent to
contact respondent
• may be problems contacting right person at
respondent, but National Contacts List
• ‘settlement not possible’ if contact not
possible with either party
22. Mandatory ACAS Conciliation
• EC Certificate issued if conciliation fails:
- settlement not possible
- contact not possible
- either side refuses
- ACAS decides conciliation not possible
- time period up
23. Mandatory ACAS Conciliation
Extensions of time to bring claims:
• clock stops at Day A - date of compliant
contact with ACAS
• clock starts at Day B - date of issue of EC
Certificate
• but always at least a month to bring claim
after Day B
25. New Whistleblowing
The Old:
• Whistleblowers protected where
- disclosure of information relating to a ‘relevant
failure’ (including criminal offences and failures
to comply with legal obligations)
- ‘reasonable belief’
- ‘good faith’ in most circumstances
26. New Whistleblowing
The Old (continued):
• Parkins v Sodexho:
- alleged breaches of own contract of employment
protected
- many employment disputes therefore covered,
where no public interest
27. New Whistleblowing
The New:
• Enterprise and Regulatory Reform Act 2013:
• The new ‘public interest’ test for protection
• in the ‘reasonable belief’ of the worker
28. New Whistleblowing
The New (continued):
• tending to show
- criminal offence
- failure to comply with legal obligation etc
• no need to show ‘good faith’
29. New Whistleblowing
How will ‘public interest’ be interpreted?
• undefined
• potential meanings to be decided by
tribunals and courts
30. New Whistleblowing
How will ‘public interest’ be interpreted?
(continued)
• potential meanings could be very wide
- from: of some interest to the public (favoured by
the press!)
- to: demonstrable benefit to the public generally
- but easy to satisfy either? i.e. general interest in
employers complying with their contracts, or that
discrimination is a pernicious evil?
31. New Whistleblowing
Removal of ‘good faith’ requirement
• now only relevant to award, which can be
reduced by up to 25%
• malicious disclosures permitted
• courts may allow detriment due to manner of
disclosure, but this remains to be seen
33. New Flexible Working
What changes?
• Right to request flexible working extended:
- to all employees with 26 weeks’ continuous
service
- irrespective of caring responsibilities
34. New Flexible Working
What changes? (continued)
• Statutory procedures scrapped
• Employer must consider request in a
‘reasonable manner’
- new draft ACAS Code of Practice
- new ACAS Guidance
35. New Flexible Working
What changes? (continued)
• Employer must give decision within three
months from date of application
• Employee’s failure to attend a meeting and
re-convened meeting can lead to application
being treated as withdrawn
36. New Flexible Working
What remains the same?
• Flexible working request must be made in
writing and include:
- date of application
- changes being sought and from when
- effect on employer and ways to deal with any
such effect
- confirm it is a statutory request and the date of
any previous application
37. New Flexible Working
What remains the same? (continued)
• Eight business reasons to refuse a request
• One request in any 12 month period
• Decisions must be made objectively avoiding
unlawful discrimination
39. Changes to Parental Rights
New right to shared parental leave for parents
of children expected to be born or placed with
them for adoption from 5 April 2015
40. Changes to Parental Rights
• Key Rights:
- Share maternity leave and 37 weeks SPP
- Employee can make three notifications
- Parents can take SPL together or separately
- Employer not obliged to agree to work pattern
- Where employer cannot agree to work pattern
employee entitled to take one continuous block
of SPL to start on their chosen date
41. Changes to Parental Rights
• Key Rights (continued):
- SPL to start on their chosen date
- 20 keeping in touch days
• Protection from unfair dismissal or detriment
available from 1 October 2014
42. Changes to Parental Rights
New right for father and partners (employee
and qualifying agency workers) to take time
off to attend antenatal appointments
• Up to 2 x max 6.5 hour appointments -
unpaid
43. Changes to Parental Rights
New right for adoptive parents to take time off to
attend adoption appointments
• Up to 2 x max 6.5 hour appointments – paid or
unpaid
• Employer can require employee to first sign a
declaration
• Employer’s unreasonable refusal can lead to
liability for compensation equal to 12 hours’ pay
• Effective from 1 October 2014
46. Holiday Pay
Lock v British Gas Trading Ltd and others
• Comission payments to be taken into account
when calculating statutory holiday pay
47. Collective Redundancy
Consultation
USDAW v Ethel Austin Ltd (in administration)
and another case (the ‘Woolworths case’)
• Employees of the retail chains Woolworths
and Ethel Austin, who worked in stores
where fewer than 20 employees were
employed, were entitled to be consulted
collectively
48. Meetings with Employees
Crime Reduction Initiatives (CRI) v Lawrence
• Employer's letter to a disabled employee,
which mistakenly invited her to a disciplinary
hearing rather than a capability meeting
49. Philosophical Belief
Olivier v Department of Work and Pensions
• Was Labour Party member's belief in
‘democratic socialism’ a philosophical belief
under Equality Act 2010?
