Law Update :
Where are we?
A NEW UNFAIR DISMISSAL REGIME
DEVELOPMENTS IN DISCRIMINATION LAW
AMENDMENTS TO TUPE
WHAT’S IN STORE?
SELECTED and RELEVANT CASE LAW 2013
Coalition Government’s employment law policy – a
Employment Law Review throughout the life of government
Remove regulatory burdens – The Red Tape Challenge – A “light
Remove barriers to “flexible, effective and fair” labour market
Aim to support employers, individuals and their families
Better information & guidance (e.g. the Employer’s Charter)
Encourage parties to settle rather than go to ET - & save money!
The relevant legislation
Enterprise and Regulatory Reform Act 2013
Growth & Infrastructure Act 2013
Collective Redundancies and Transfer of Undertakings
(Protection of Employment) (Amendment) Regulations
Children and Families Act 2014
1. CHANGES TO UNFAIR DISMISSAL
REGIME – including REDUNDANCY
Changes to unfair dismissal- a brief reminder
Change in qualifying period increased from one to two years
Cap on compensation for unfair dismissal: employee’s wages for
12 months or current cap of £76,574 – whichever is the lower.
New unfair dismissal claim – where the reason for dismissal is
the employee’s political opinion or affiliation
Introduction of Settlement Agreements
Introduction of Fees at Employment Tribunals[
And 2014 : referral of all claims to ACAS for Early Conciliation
Implications for LA employers
Obviously now more difficult for employees to bring
claim of unfair dismissal. Claims by other routes?
Will trade unions be able to fund multiple claims?
Implications of announcement of fall in claims?
“Whistleblowing” regime: new liabilities for employer
Response to new claims for dismissals on grounds of
political opinion or affiliation (the Redfearn case)?
Employees on fixed-term contracts excluded from
collective consultation obligations (but agency
Minimum consultation period reduced from 90 days to
45 days (where 100+ employees are affected within
90 days’ period)
BUT upper limit on protective award remains 90 days
ACAS non-statutory code of practice “How to manage
collective redundancies” – checklist of key points
“Woolies” case referred to CJEU (legality of “one
establishment” in legislation)
DISCRIMINATION: A CLIMATE CHANGE?
Significant changes to EHRC
Removal of third party harassment: now what?
Review of Public Sector Equality Duty and specific
equality duties – not fit for purpose?
Discrimination questionnaire procedure repealed –
Amendments to TUPE 2014
Amendments to TUPE 2006 in January 2014
New BIS guidance on TUPE
Major reform or merely tinkering?
Amendments to TUPE 2014
SPC retained with new test: “fundamentally the same”
Changes to collective agreements
- the “static” approach to liability for terms and conditions (pay)
- possible variation after 12 months subject to “overall”, no less
Amendments to dismissal regime ( new test: transfer the reason;
“connection with the transfer” removed from legislation)
Amendments to TUPE 2014: variation of terms
More opportunities for transferee to vary terms and conditions:
Changes void if transfer the reason, unless:
ETO reason entailing changes in workforce- and new ETO
Express term in contract(mobility or flexibility clause) (location)
Collective agreements ; after 12 months but , overall, new terms
must be no “less favourable”
And, according to BIS guidance, where positive/ beneficial for
employee – can this be right?
Amendments to TUPE 2014: variation to terms
BUT “Harmonisation” remains unlawful ( contrary to EU law -
see Daddy’s Dance Hall) – UK to consult with EU partners –
So what can the transferee do? Only safe legal way is
reorganisation – satisfies ETO reason entailing changes in
Amendments to TUPE 2014
Transferee can start to consult pre-transfer – subject to
transferor’s approval – how realistic?
ETI – now 28 days
All came into effect on 31 January 2014 – apart from ELI, which
will change on 1 May 2014.
Legislation 2014: in place in April 2014
ACAS Early conciliation
—The 4-stage process
—Will it work?
Financial penalties in ET for employers (£5000?)-
Legislation 2014 continued
Right of flexible working extended to all employees with 26
weeks’ service – but delayed (to end of June 2014?)
— Outline of the scheme
— Acas Code of Practice & Guidance
— Implications and problems?
New Health & Work Service for employees absent for 4 weeks
due to sickness (spring 2014) & revision of “Fit-Note (?)
Consultation on ACAS Disciplinary & Grievance Code
Zero Hours Contracts – to improve transparency
Caste discrimination – but see ET case
And remember need for changes in Working Time
Regs – carry over of annual leave
Flexible/ Shared Parental Leave – parents will have
the ability to “split” 52 weeks of parental leave at any
point from 2 weeks after birth
Time off for Ante-natal appointments - fathers and
other qualified persons will be entitled to time off
work to attend 2 ante-natal appointments with
Case law - 1
USDAW v Ethel Austin Ltd (in administration) – the
“Woolworths’ case” Collective consultation obligation is
triggered by 20 in business/organisation – regardless of the
number at individual sites-referred to CJEU.
Wright v North Ayrshire Council: for constructive
dismissal claim the employer’s breach must be part of the cause
of resignation, not the effective cause.
Toal v GB Oils: EAT ruled that the right to choose companion
was the employee’s choice and the employee’s alone -Acas
advice misleading – Code to be revised.
Case law - 2
Wade v Sheffield Hallam University (EAT): waiver of
competitive interview not a reasonable adjustment – Archibald
will not always apply
Sohbi v Commissioner of Police of the Metropolis
(EAT): new second limb of test of disability: whether the
impairment impacts on someone’s participation in professional
City and Council of Swansea v Gayle (EAT): Fraudster
not unfairly dismissed & no breach of Article 8 (right to privacy)
or of Employment Practices Code ( DPA).
Working Time cases
Case law - 3
Redundancy – alternative work – unfair selection:
Somerset County Council v Chaloner
City of Newcastle Council v Ford
Lessons for employers and HR?