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PPMA Annual Seminar 2014 - Employment Law Update

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PPMA Annual Seminar 2014 - Employment Law Update

  1. 1. Employment Law Update : Where are we? Stuart Chamberlain
  2. 2. Programme A NEW UNFAIR DISMISSAL REGIME DEVELOPMENTS IN DISCRIMINATION LAW AMENDMENTS TO TUPE WHAT’S IN STORE? SELECTED and RELEVANT CASE LAW 2013
  3. 3. Coalition Government’s employment law policy – a reminder  Employment Law Review throughout the life of government  Remove regulatory burdens – The Red Tape Challenge – A “light touch”  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!
  4. 4. The relevant legislation  Enterprise and Regulatory Reform Act 2013  Growth & Infrastructure Act 2013  Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014  Children and Families Act 2014 4
  5. 5. 1. CHANGES TO UNFAIR DISMISSAL REGIME – including REDUNDANCY
  6. 6. 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
  7. 7. 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)?
  8. 8. Redundancy  Employees on fixed-term contracts excluded from collective consultation obligations (but agency workers?)  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) 8
  9. 9. 2. Changes to DISCRIMINATION Law
  10. 10. 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 – implications?
  11. 11. 3. AMENDMENTS TO TUPE 2014 11
  12. 12. Amendments to TUPE 2014  Amendments to TUPE 2006 in January 2014  New BIS guidance on TUPE  Major reform or merely tinkering? 12
  13. 13. 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 favourable  Amendments to dismissal regime ( new test: transfer the reason; “connection with the transfer” removed from legislation) 13
  14. 14. 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? 14
  15. 15. 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 workforce 15
  16. 16. 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. 16
  17. 17. WHAT’S IN STORE ? LEGISLATION ETC 2014 - 2015
  18. 18. Legislation 2014: in place in April 2014  ACAS Early conciliation —The 4-stage process —Potential problems? —Will it work?  Financial penalties in ET for employers (£5000?)-
  19. 19. 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 (?) 19
  20. 20. Consultations 2014  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 20
  21. 21. Legislation 2015  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 expectant mothers. 21
  22. 22. 5. CASE LAW in 2013: a selection 22
  23. 23. 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. 23
  24. 24. 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 life  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 24
  25. 25. Case law - 3 Redundancy – alternative work – unfair selection: Somerset County Council v Chaloner City of Newcastle Council v Ford Lessons for employers and HR? 25
  26. 26. Conclusions & Questions 26

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