Whistleblowing and collective consultation changes
Whistle blowing, collective consultationand other changesRichard Miskella and Rebecca Peedell
What we will cover• Changes to the collective redundancyconsultation rules• Changes to whistle-blowing law• Pensions auto-enrolment• Sickness absence related changes• Other changes currently on the horizon
Collective redundancy consultation• Changes apply to redundancies “proposed” on or after 6April 2013
Collective redundancy consultationOn 23 April 2013, ABC Ltd proposes 120redundancies at one establishment within a 90 dayperiod.What will it need to do differently under the newrules?
Collective redundancy consultation• Consultation periodWhat has changed? What hasn’t changed?Where 100 or more dismissals areproposed, employer must consult for aminimum of 45 days before the firstdismissal takes effect(Pre-6 April 2013 the minimumconsultation period where 100 or moredismissals were proposed was 90 days)No change to minimum consultationperiod where between 20 and 99dismissals are proposed – still 30 daysNo change to protective award –remains capped at 90 days’ payTUPE regime remains separate andunchanged by this
Collective redundancy consultation• HR1 formWhat has changed? What hasn’t changed?Where 100 or more dismissals areproposed, notification to the Secretaryof State must be made at least 45 daysbefore the first dismissal takes effect(Pre-6 April 2013 where 100 or moredismissals were proposed notificationwas required at least 90 days before thefirst dismissal takes effect)No change to notification period wherebetween 20 and 99 dismissals areproposed – still at least 30 days beforefirst dismissal takes effectSame penalty for failing to comply(£5,000 fine)
Collective redundancy consultation• Fixed term contractsWhat has changed? What hasn’t changed?Fixed term contracts which havereached their agreed termination pointsare not covered by the collectiveconsultation obligationsIf fixed term contracts are beingterminated early they are covered bythe collective consultation obligations
Collective redundancy consultation• ACAS guidance on “How to managecollective redundancies”Sets expectations of best practiceBut it is guidance only – which meansthat employers to do not have to followit
Collective redundancy consultation• ACAS guidance on “How to managecollective redundancies”Contains:> 10 point checklist for handling collectiveredundancies> Sample selection matrix and redundancyprocedure> Overriding themes are:» Good quality consultation» Protecting employee wellbeing (particularlythose employees who “break the bad news”)for the benefit of employers and employees
Collective redundancy consultation• ACAS guidance on “How to managecollective redundancies”Meaning of “establishment”The legal test for an establishment:> Question of fact for Tribunal – and Tribunal hasconsiderable latitude> The unit to which the employees are assigned> Geographical and organisational factors arerelevant> Does the unit perform specific tasks?> Does it have facilities, such as a workforce and anorganisational structure, to enable it to performthose tasks?
Collective redundancy consultation• Practical implications of changes for employers Form and content of consultation process remains the same Although the minimum consultation period for 100+ redundancies is shorterthis does not mean that consultation can start later – consultation must stillbegin when the proposals are at a formative stage Unlikely to mean employers change their commercial approaches toconsultation – e.g. if approach is to breach consultation obligations and pay90 days’ pay, that is unlikely to change Less of an imperative to keep number of proposed dismissals under 100 Implementing contractual changes via dismissal and re-engagement moreattractive? Will employees want a slice of the 45 day “saving” on pay? Will the ACAS guidance raise employee expectations about having apositive consultation experience?
Collective redundancy consultationFOOTNOTE*Remember recent case of Unison v London Borough ofBarnet and another where protective awards were made forfailure to provide employee representatives with informationabout agency workers
Collective redundancy – ACTION POINTSReview redundancy policies to reflect 45 dayminimum consultation period where 100+redundancies are proposed and changed positionon fixed term contractsBuild into processes an acknowledgement of theimportance of employee wellbeingMake sure fixed term contracts have fixed expirypoints
Whistle-blowing• Requirement for disclosures to be made “in good faith” hasbeen removed• However, Tribunals will have the power to reducecompensation by up to 25% if the disclosure was not madein good faith
Whistle-blowingABC Ltd employs Bob. Bob complains to ABC Ltd that theyhave breached his contract by not paying him a bonus andhave understated their profits in the accounts they have filedwith Companies House. Jim, one of his co-workers, finds outabout this and tells other co-workers, and they all give Bobthe cold shoulder.• Does Bob have a whistle-blowing claim against ABC Ltdnow?• What about after summer 2013?
Whistle-blowing• Breach of contract by not paying a bonusUnder current law this could be a qualifying disclosureFrom summer 2013 unlikely to be a qualifying disclosure dueto new “public interest” test• Understated profits in accountsUnder current law this could be a qualifying disclosureFrom summer 2013 – position unclear ... but not too much of astretch to argue there is a public interest?
Whistle-blowing• Is ABC Ltd liable for Jim’s actions?Under current law probably no> NHS Manchester v Fecitt and others > Court of Appeal held that an employer cannot be liableunder whistle-blowing legislation where an employeevictimises a whistle-blower colleague – this may even bethe case where the employer has done nothing to stop itFrom summer 2013 probably yes> a worker will have the right not to be subjected to anydetriment by any act, or any deliberate failure to act, doneby another worker in the course of that other worker’semployment – subject to a reasonable steps defence
Whistle-blowing• Are further changes expected?• The Whistle-blowing Commissionhas launched a public consultationasking for views and experiences ofwhistle-blowing in the UK (closesJune 2013)
Whistle-blowing – ACTION POINTSReview whistle-blowing policies to reflectintroduction of “in public interest” test and removalof “good faith” requirementAmend bullying and harassment/whistle-blowingpolicies to expressly prohibit subjecting co-workers to bullying and harassment for makingprotected disclosuresTrain staff on policy so that you can takeadvantage of the reasonable steps defence
Pension auto-enrolment• What is it?• See “In-Brief” in packs
Pension auto-enrolment• Top 5 questions from clients1. What is the current auto-enrolment consultation about?2. Which workers are in the scope of auto-enrolment?3. Which elements of pay come within the concept of “qualifyingearnings” and are qualifying earnings different topensionable pay?4. Are salary sacrifice mechanisms and flexible benefitsschemes inducements to opt out?5. Do I need to change employees’ contracts of employmentand how do I go about doing that?
Sickness absence related changes• Changes take effect in Spring 2014• New Independent Assessment Service to provide expertadvice for sickness absences lasting for more than fourweeks• Revisions to fit notes
Changes on the horizon• Include:Review of impact of Agency Worker RegulationsNew ACAS Code on disciplinary and grievance proceduresNew rapid resolution scheme for simple low value claims