Legislative Change Table


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Eversheds HR Legislation Tracker,
Recent and pending UK employment law changes
Gill Watkins

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Legislative Change Table

  1. 1. Legislative change table Recent and pending UK employment law changes
  2. 2. Key: Proposed In force Other Issue Changes Start date Background/ Implications ACAS Code Possible ACAS/ BIS to work on updating current Code to clarify certain area s and improve awareness. Not known Call for evidence: Dealing with dismissal and "compensated no-fault dismissal" for micro businesses briefly floated the idea of creating an alternative model of the ACAS Code, for small employers. This was subsequently rejected and modifications proposed to the current ACAS Code (Response to Call for Evidence ). A new online helpline service is available. Relevant dates Call for evidence Commenced 15/03/12 Closed 08/06/12 [Separately, distinct ACAS Codes will arise in respect of various topics such as settlement agreements, redundancy consultation, flexible working etc., (see below).] Agency Workers Possible Consultation the Conduct of Employment Agencies and Employment Business Regulations 2003. Not known Changes in force Amendment to s147 Equality Act 2010 (clearly extending use of such agreements to discrimination claims) As part of its “Red Tape Challenge” (see below) the Government conducted consultation in early 2013 over current agency regulation (ie the 2003 Conduct Regulations). Consultation on reforming the Consultation 17/1/13 regulatory framework Review of the Agency Workers Regulations 2010 Compromise Agreements (See Settlement Agreements, below) Response 14/09/12 Closed 11/04/13 During the latter part of 2013 the Government is additionally expected to review the Agency Workers Regulations 2010 “to ensure the practical arrangements necessary for employers and agencies are as simple as possible”. Amendment to Equality Act 2010 in force from 6 April 2012 Review late 2013. Part of Government Consultation on resolving workplace disputes looked into current use of compromise agreements and whether they are underused. They are to be re-named Settlement Agreements and their use reviewed/ extended. (See Settlement Agreements, below). Two Consultations Commencing 27/01/11 and 14/09/12
  3. 3. From 6 April 2012 a small amendment was made to section 147 of the Equality Act 2010 to ensure compromise agreements are plainly available in the context of discrimination claims. Closed 20/04/11 and 23/11/12 respectively Response 1 23/11/11 Response 2 17/01/13 Collective Redundancies Directors’ Pay Changes in force Reduction of 90 day period to 45 days; Exclusion of fixed term contracts Focus on „meaningful‟ consultation; ACAS Guidance to ensure quality of consultation and clarify: -def of “an establishment”; -what should be discussed, when. [Only looking at redundancy consultation for now –review of how the provisions inter-act with TUPE will follow.] 6 April 2013 Changes in force Increased role of shareholders in remuneration policies and payments 1 October 2013 BIS call for evidence on collective redundancy consultation sought views on the current requirements and how they are working (or hindering) consultation in practice. Call for evidence Commenced 23/11/11 Formal consultation was launched on 21st June 2012 and proposed various measures, such as reducing the 90 day min consultation and introducing a Code of Practice. BIS Consultation on Collective redundancies Closed 31/01/12 In its Response, the Government confirmed a reduction in the minimum consultation period to 45 days from 6/4/13. In addition, fixed term contracts are excluded from collective consultation obligations. ACAS Guidance aims to clarify the consultation process. Consultation Commenced 21/06/12 Closed 19/09/12 Response 18/12/12 Discussion paper on executive remuneration sought views on executive remuneration in quoted companies and how to better align pay with company performance and achieve greater transparency. Then followed a Consultation on executive pay and shareholder voting rights. Discussion paper released 19/09/11 Many of the proposals were incorporated in to the Enterprise and Regulatory reform Act 2103 which Consultation Commenced 14/03/12 Closed 25/11/11
  4. 4. amends provisions of the Companies Act 2006 regarding quoted companies‟ disclosure of directors‟ remuneration and increases shareholders‟ rights in relation to directors‟ remuneration. Revised Regulations for Large and Medium-sized Companies and Groups (Accounts and Reports) came into force on 1 October 2013 and apply where financial year end falls on or after 30 September 2013. Closed 27/04/12 Enterprise & Regulatory Reform Act 25/4/13 Consultation Commenced 12/3/13 Closed 25/3/13 Discrimination Questionnaires Changes Approved Removal of questionnaire process and current prescribed questionnaires (by repeal of s138 Equality Act 2010) Likely 6 April 2014 As part of the Govt “Red Tape Challenge”, two aspects of discrimination law became the subject of consultation: Removal of discrimination questionnaires; and Extension of ET powers to make recommendations Consultation Commenced 15/05/12 Govt Equalities Consultation. Closed 07/08/12 Office: Equality Act 2010, a The Enterprise and Regulatory Reform Act 2013 will effect the removal of the questionnaires during 2013. These will be replaced by an informal process and new ACAS guidance as to how individuals can ask questions and why employers and service providers should respond. Any change to the power of ETs to make recommendations is to be included in a Deregulation Bill announced in the Queen‟s Speech in May 2013 – details not yet known. Employee Shareholders Changes in force New form of employment 1 September 2013 One of the more controversial proposals by Government. The new provisions came into force on 1 Enterprise & Regulatory Reform Act 25/4/13
  5. 5. status whereby employment rights are exchanged for shares in the business Equal Pay audits Changes Approved Compulsory pay audits for employers who lose equal pay claims in the ET October 2014 September 2013 via the Growth and Infrastructure Act 2013. Detailed requirements must be met for the new status to apply. Guidance is available: see HMRC employee shareholder guidance Part of the Consultation on modern workplaces invited comment upon whether tribunals should subject employers who lose equal pay claims to a pay audit. The Government's response came down in favour, prompting the addition of power to order audits to the Enterprise and Regulatory Reform Act. Further consultation over how the process will work in practice is expected before implementation in October 2014. Flexible Working Proposed Extending right to request to all employees after 26 wks Replacing current procedure with ACAS Code ACAS Guidance Retaining current business reasons for rejection and limit on requests to 1 per year 2014 As part of the far-reaching Consultation on modern workplaces the Government looked to fulfil its pledge to extend the right to request flexible working to all employees, not just parents and carers. Formal response to consultation as regards the flexible working aspects was issued on 13 November 2012. It confirms the extension of flexible working requests to all parents of children under the age of 18 from 2014 and a new ACAS Code of Practice and ACAS guidance. Further consultation on the detail will follow in 2013. In the meantime, ACAS launched a Consultation regarding its draft flexible working code on 25 February 2013. Consultation closed on 20 May 2013. Consultation Commenced 16/05/11 Closed 08/08/11 Response 14 June 2012 Enterprise & Regulatory Reform Act 25/4/13 Consultation Commenced 16/05/11 Closed 08/08/11 Response 13/11/12 Acas Consultation over Code Commenced 25/02/13 Closed 20/05/13
  6. 6. Parental Leave Proposed 18 week paid maternity leave and 2 week paternity leave Re-classify remaining leave as “parental leave” Allow concurrent leave More flexibility over how leave is taken (piece-meal or in blocks) Not before 2015 As part of its Consultation on modern workplaces the Government set out some ideas to extend further the ability for parental leave to be shared. Consultation Commenced 16/05/11 Formal response to consultation as regards the parental leave aspects was issued on 13 November 2012. It confirms the extension of shared leave, enabling fathers to share untaken maternity leave from 2015. The mother would not necessarily need to return to work for this right to be exercised. Closed 08/08/11 On 25 February the Government sought to clarify the proposed mechanics of shared parental leave and pay in a further consultation paper on the, administrationof-shared-parental-leave-and-pay. Consultation closed on 17 May 2013. Consultation Commenced 25/02/13 Response 13/11/12 Closed 17/05/13 Increase in unpaid leave Rise to 18 weeks Rapid resolution Red Tape Challenge 8 March 2013 From 8 March 2013, unpaid parental leave increased from 13 to 18 weeks to comply with the revised EU Parental leave Directive. Possible Optional rapid resolution system for low value, straightforward cases; Paper-based; Determined by non-judicial Legal Officers; (See also, Tribunal Procedure below) Not known Responses to the Government Consultation on resolving workplace disputes prompted the Government to look at a simpler, “fast track” process, relying on paper-based determination of complaints by non-judicial Legal Officers. This is currently on hold. Consultation Commenced 27/01/11 The Enterprise and Regulatory Reform Act 2013 includes provision to effect the appointment/ additional powers of legal officers but there are no plans to implement this as yet. Response 23/11/11 This remains a key and ongoing objective of the Government (see Discussion document) many Review Commenced Ongoing Employment Law review Ongoing Closed 20/04/11 Enterprise & Regulatory Reform Act 25/04/13
  7. 7. Part of general commitment to reduce “red tape”. Areas of discussion included; compliance and enforcement, letting people go, managing staff and taking people on. proposals being actively pursued eg: Removal of discrimination questionnaires; and Extension of ET powers to make recommendations (see above) Govt Equalities Office: Equality Act 2010, a Consultation A Deregulation Bill, expected to progress in the autumn of 2013, will effect further changes. Settlement Agreements (see also, Compromise Agreements, above) Proposals include: Template, simplified form Name change to “Settlement Agreements” (from old-style “compromise agreements”) 29 July 2013 Part of Government Consultation on resolving workplace disputes looked into current use of compromise agreements. A change of name to “Settlement Agreements” was effected by Enterprise and Regulatory Reform Act 2013 from 29 July 2013. The initial Government response indicated it was in favour of a template, simplified agreement, prompting further Consultation, Ending the employment relationship which closed on 23/11/12. There is also a new ACAS Code of Practice (as appended to the Response to Consultation). Guidance is still awaited. 3/10/11 Concluded 19/10/11 Consultation Commenced 15/05/12 Closed 07/08/2012 Consultations Commencing 27/01/11 and 14 /09/12 Closed 20/04/11 and 23/11/12 Respectively Response 1 23/11/11 Response 2 17/01/13 Enterprise & Regulatory Reform Act 25/04/13 Sickness absence Proposals Employees absent for more than 4 weeks to be referred for indep assessment; Advisory service to be By end 2014 Review of the sickness absence system in Great Britain commissioned, chaired by David Frost and Dame Carol Black. Sickness absence review -terms of reference Review Commenced 17/02/11 Published
  8. 8. established Improved Fit notes guidance; Public sector review The Sickness absence review was published on 21/11/11 and included recommendations such as: the establishment of an Independent Assessment Service (IAS) and revised fit note guidance. 21/11/11 Government response 17/01/13 The Government response was published on 17 January 2013. It confirms the setting up of a health assessment and advisory service by the end of 2014, which would assess fitness to return to work after four weeks of sickness absence and offer ongoing support. On 7/3/13 revised guidance on fit notes was published. Employers are also to be relieved of the administrative burden of retaining sickness/ SSP records but no date has been announced yet. Third-party harassment Changes in force Removal of third-party harassment liability for employers (by repeal of s40(2)-(4) Equality Act 2010) 1 October 2013 The Equality Act 2010 introduced employer liability for third-party harassment of employees. The Govt sees this as exceeding European requirements under the Equal Treatment Directive but also believes it to be relatively unused. Home Office Consultation into repeal of third-party harassment In the context of its Red Tape Challenge this provision is repealed under the Enterprise and Regulatory Reform Act and expected to take effect from 1 October 2013. Consultation Commenced 15/05/12 Closed 07/08/12 Enterprise & Regulatory Reform Act 25/4/13
  9. 9. Tribunal Orders and Awards In force New formula for rounding up annual uplifts (in force); New penalties for employers who breach rights; Cap on compensatory award Greater powers for ET to make deposit and costs orders Cap on unfair dismissal 29 July 2013 Part of Government Consultation on resolving workplace disputes looked into tribunal awards and concluded greater flexibility is needed. Deposit orders/ costs awards 25 June 2013 Proposals included Changes to the rounding-up of awards (which was introduced in February 2013) Financial penalties for employers of 50% of the tribunal award but with a £100 minimum and £5000 maximum, payable to the Exchequer, not the claimant but subject to the employer‟s ability to pay (to be implemented in 2014); Automatic up-rating of ET awards and Stat Red Pay. New penalties in ET for employers from 2014. Consultations Commencing 27/01/11 and 14 /09/12 Closed 20/04/11 and 23/11/12 Respectively Response 1 23/11/11 Part 2 Enterprise and Regulatory Reform Act 2013 includes provision to effect these proposals. In addition the Act imposes a cap on compensatory awards at 12 months‟ pay or the current maximum figure on such awards (£74,200 from 1 February 2013) as from 29/7/13. From this date also, the power of the ET to make deposit orders increased, permitting such awards for certain aspects of a claim only. Costs awards will also be available to litigants in person. Tribunal Procedure Proposals: Increased use of mediation; Early conciliation (via ACAS pre-conciliation); Revised ET Rules to simplify the system. New category of discrimination in form of political beliefs Political belief protection 25 June 2013 New ET Rules 29 July 2013 Acas early conciliation expected 6 April 2014. Response 2 17/01/13 Various aspects of tribunal procedure were raised in the Consultation on resolving workplace disputes . Initial Consultation: Commenced 27/01/11 and Closed on 20/04/11 The Government response in November 2011 prompted the commissioning of a “root and branch review” of ET practice by Mr Justice Underhill. Underhill‟s report was then published on 11 July 2012 along with draft Employment Tribunal Rules. On 14 September 2012, the Government published a further Consultation on ET Rules/ Underhill Enterprise & Regulatory Reform Act 25/06/13 Response 23/11/11 Underhill
  10. 10. Caste discrimination tba recomms. Its Response, published on 14 March 2013 confirmed the majority of changes recommended by Underhill J will be implemented in new ET rules. The New ET Rules were published on 3 June 2013 and, for the most part came into force on 29 July 2013. In the meantime, on 17 January 2013, the Government published a consultation: Early Conciliation: a consultation on proposals for implementation setting out the detail of its proposals for early conciliation. The Response was published on 12 July 2013. This new regime, provided for by the Enterprise & Regulatory Reform Act, is expected to be implemented from early 2014. Following the case of Redfearn v UK, the Act exempts dismissals related to political opinion or affiliation from the unfair dismissal qualifying period in respect of dismissals arising on or after 25/6/13. It will also introduce caste discrimination at a time to be agreed in due course. report 11/07/12 Further Consultation commenced 14/09/12 and Closed on 23/11/12 Response 14/3/13 New ET Rules 3 June 2013 Early Concil Consultation commenced 17/01/13 and closed 15/02/13 Response 12/07/13 Enterprise & Regulatory Reform Act 25/06/13 Tribunal Fees Proposed Two main fees: ET Issue fee =£160 or £250, depending on nature of claim ET Hearing fee =£230 or £950 EAT Issue fee =£400 EAT Hearing fee =£1200 29 July 2013 The MOJ engaged in Consultation on charging fees in ET and EAT, resulting in a response to a consultation on 13 July 2012 which confirmed fees were to apply at 2 stages of ET and EAT proceedings, subject to means testing: issue of a claim and at hearing. Fees apply from 29 July 2013, accompanied by a Consultation Commenced 14/12/11 Closed 06/03/12
  11. 11. process for applying for remission (Draft Statutory Instrument). There will be 2 levels of fee according to the complexity of the case. Type A fees relate to disputes such as unpaid wages and will involve an issue fee of £160, followed by hearing fee of £250. Unfair dismissal or discrimination claims will be Type B and attract fees of £230 on issue and £950 at hearing. TUPE reform Changes Approved: Narrowing of service provision changes; Dealing with the Abellio anomaly and inability of transferor to rely on posttransfer ETO; Employee Liability Info 28 days pre-transfer. Pre-transfer collective consultation to count January 2014 Response 13 July 2012 Amid ongoing allegation that UK TUPE Regulations 2006 exceed European requirements in certain respects, the Government launched the BIS call for evidence-effectiveness of tupe regulations 2006 in November 2011. Call for evidence Commenced 23/11/11 In its Response the Government highlighted areas of concern regarding TUPE and proposals for change were then revealed in the formal TUPE Consultation launched on 17 January 2013, including controversially, repeal of the service provision change provisions and removal of Employee Liability Information. Closed 31/01/12 Response 14/09/12 Consultation 17/01/13 The Response to this latest Consultation was published on 5 September and followed by draft amending regulations on 1 November 2013. Service provisions changes will stay, as will Employee Liability Information, supported by revised Guidance. The new regulations are expected to come in to force in January 2014. Unfair Dismissal (confidential discussions) Changes Approved Protected disclosure of offers made to terminate employment on mutually acceptable terms (for unfair dismissal claims only); 29 July 2013 Closed 11/04/13 The Government Response to Consultation Ending the employment relationship, issued on 17 January 2013, confirmed the intention to introduce confidentiality for settlement offers (so that they may not be referred to in the context of any future unfair dismissal claim). Consultation 14/09/12 Response 5/ 09/13 Draft regulations 1/11/13 Closed 23/11/12
  12. 12. Excludes automatic unfair dismissal claims, such as whistleblowing; Excludes situations involving “improper” behaviour by employer. Whistleblowing Changes in force Qualification of rights so that disclosures must be made in the public interest; Removal of “good faith” requirement Employer liability for harassment by colleagues Under the Enterprise and Regulatory Reform Act these changes came into force on 29 July 2013. There is also a new ACAS Code of Practice (as appended to the Response to Consultation). Guidance is still awaited. Protected disclosures made on or after 25 June 2013 Response 17/1/13 To remove whistle-blowing protection in so far as it allowed employees to raise claims based on their own employment contracts the Enterprise and Regulatory Reform Act requires qualifying disclosures to be made in the public interest. Furthermore, employers will be liable for bullying or harassment of whistle-blowers unless they take preventative steps. Enterprise & Regulatory Reform Act 25/04/13 Further reform seems likely in due course. The Charity Public Concern at Work has concluded a „Whistle-blowing Commission‟ aimed at reviewing the current legal protection and plans to publish its findings at the end of the year. At the same time, the Government has issued its own Call for Evidence to assess whether current whistle-blowing legislation is „fit for purpose‟. Working Time Under consultation Amendment to WTR to allow for carry-over of holiday for those off sick, following EU case law; Placing a limit on the amount of carry-over leave Not known As part of the far-reaching Consultation on modern workplaces the Government considers the recent case developments in Europe (such as Schulte ) and the fact that WTR do not expressly allow for the carryover leave by those unable to take it due to sickness absence. Assuming some degree of carry-over is required, in amending WTR the Govt will need to decide the amount of leave and period of carry-over. Current proposals suggest a limit on carry-over leave to four weeks (which is supported by the recent case of Neidel). The proposed period will need to be increased from 9 to 12 months in light of this case, Enterprise & Regulatory Reform Act 25/04/13
  13. 13. however. Formal response to the consultation is awaited during 2013. Last updated 1/11/13
  14. 14. For further information please contact: Gill Watkins Senior Associate PSL Tel: 0845 498 7581 Email: gillianwatkins@eversheds.com Disclaimer This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.