First, a Health Warning! Some of the dates of implementation keep changing! On 14 March 2013 BIS published “Employment Law 2013:Progress on Reform
Coalition Government’s employment law policy – areminder Employment Law Review throughout the life of government Remove regulatory burdens – The Red Tape Challenge – A “lighttouch” Employment Law is “costly, time-consuming and overlybureaucratic” 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) Whole series of Consultations and “Calls for Evidence” Encourage parties to settle rather than go to ET - & save money!
In 2012 Maximum award for unfair dismissal is £74,200 (Feb2012) Change in qualifying period for claiming unfairdismissal increased from one to two years on 6 April2012 Auto Enrolment for pensions (ongoing) CRB becomes Disclosure & Barring Service (DBS) (Dec2012) – but problems with IT!
April 2013 Consolidation of NMW Regulations Consultation period for collective redundancies involving 100or more employees reduced from 90 days to 45 days – with ACASguide Employees whose fixed-term contracts due to expire excludedfrom collective consultation requirements Consultation on the recruitment sector
Summer 2013 Introduction of Settlement Agreements: details of pre-termination negotiations will be inadmissible at ET – exceptwhere “improper behaviour” – with Code of Practice & guidanceand letters & templates for employers – see next slide [Government has dropped “Protected conversations”?] 12 months’ pay cap on compensation award for unfairdismissal – what it means Revised ET rules/procedure – mostly accepted Underhill Reportrecommendations
Settlement Agreements(SAs) Change of name – Why? - new s.111A of the ERA 1996 – replaceCAs SAs are legally binding contracts which can be used to endemployment relationship on agreed terms. Individual waivesrights to make claim to court/tribunal on matters specificallycovered in the agreement It’s all about “confidentiality” – specific focus of ACAS draftCode of Practice The current situation – “without prejudice” discussions etc. –must relate to existing dispute between parties – these can stillrun alongside SA procedure
Settlement Agreements cont. Voluntary - If SA cannot be agreed dispute can go to ET 7 (?) days to consider offer Void if “improper behaviour” – examples in draft ACAS Code Right of accompaniment? Non-binding model letters for employers and templateagreement Still consulting on “good practice” Implications?
Summer 2013 continued Changes to whistle blowing rules: breach of employmentcontract no longer protected disclosure; “good faith”; andemployer’s liability & defence New tribunal fees regime – 2-stage fee structure: “issue” fee and“hearing” fee – Implications? Review of Agency Workers paperwork Portable online DBS checks
Autumn 2013 Proposed changes to TUPE 2006 (“gold plating of EU law”)— Repeal of SPC – but likely to be 3-5 years’ lead-in time?— ELI and other changes— Implications & potential problems? Call for Evidence on PIDA 1998 Interactive guide on discipline
Spring 2014 Right of flexible working extended to all employees with 26weeks’ service New Assessment Service for employees absent for 4 weeks dueto sickness & revision of “Fit-Note” Mandatory ACAS pre-claim conciliation: if no agreement ACASwill issue certificate & if no certificate, no ET – and a POTENTIALNIGHTMARE! Financial penalties in ET for employers (£5000) Evaluation of Workplace Mediation Services
Which leaves?• Amendments to Working Time Regs. re. annual leave & sickness• Updating of ACAS Code of Practice on Disciplinary and GrievanceProcedures. No qualifying period for unfair dismissal when reason fordismissal is or is related to employee’s political opinion oraffiliation (Redfearn v UK) – but to come into effect 12 monthsafter E&RR Bill receives Royal Assent
Case law 1- Religious discrimination Religious discrimination – Eweida & others v UK(ECtHR)o Any manifestation of religious belief in workplace should beprotected, provided close link between the manifestation andthe beliefo Interference with this right can be justified but theemployee’s rights must be balanced against those of theemployer
Eweida continuedo BA’s corporate aims breached Ms E’s desire to manifest herreligion (Article 9)– UK had breached its “positive obligation “to protect this right. The other applicants lost – employersable to justify their refusal to accommodate theirmanifestations of beliefo The EHRC has produced guidance on religion & belief in theworkplaceo Implications?
Case law 2 – Annual Leave Long-term sickness & annual leave: LHS Leeds v Larnero A reminder of the CJEU caseso Claimant, unable to take leave because she was sick, entitled tocarry her untaken leave forward to next leave year withoutmaking a prior request to do soo On termination she was entitled to payment for paid annualleave she had been prevented from takingo And how long the carry over?
Case law 3 – Social Media Unlawful disciplining, demotion & dismissal: Smith v TraffordHousing Trust In Facebook Mr S, a practising Christian, described proposals forsame–sex marriage as an “equality too far” Dismissed for gross misconduct – contravened equal opportunitiespolicy Too late to bring claim for unfair dismissal Awarded damages (£100) for wages in notice period
Case 4: Disciplinary warnings Warnings – Wincanton Group plc v StoneQ.s: To what extent can earlier warnings be relied upon indisciplinary hearings? And must earlier warnings be about similarmisconduct? EAT says “Yes” to both and provides following guidance:o In deciding sanction, employer should take into account factualcircumstances of any earlier warningo Always take into account how other employees treated (consistencyis important)o A final warning normally means that any further misconduct (ofwhatever nature) may result in further disciplinary action (dismissal)
Case law 5: Volunteers Volunteers not covered by discrimination law – X v Mid SussexCAB No contract, no claim under the EqA (then the DDA) or Directive Volunteer will not be employee unless…!? And interns? Finally, ET rejected claims in Quick v Cornwall Council thatconversations about the employee’s potential retirementconstituted unfair dismissal and age discrimination