Employment Law update 2013
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An update on developments in 2013 and what is coming up for 2014.
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Employment Law update 2013
- 1. Annual Employment Law Review 5 December 2013 David Poddington, Partner Jenny Arrowsmith, Partner Tom Draper, Associate Annie Gray, Solicitor Rebecca Hutchinson, Legal Assistant “ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon for giving advice and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of reliance on this material”.
- 2. Introduction Employment Tribunal reform Key statutory changes Case law update What to expect in 2014 Discussions and questions
- 4. Unfair dismissal WHEN? From 29 July 2013 WHAT? Compensatory awards for dismissals on or after 29 July 2013 are the lower of £74,200 or 52 weeks’ gross pay Maximum is £74,200 for dismissal between 1 February and 28 July 2013
- 5. Tribunal fees WHEN? From 29 July 2013 WHAT? Type A claims - £160 issue fee and £230 hearing fee Type B - £250 issue fee and £950 hearing fee Application fees - £60 to £350, depending on the application and type of claim Fee remission
- 6. Compulsory early ACAS conciliation WHEN? April 2014 WHAT? New mandatory conciliation procedure Four Stage Process Claimant sends prescribed form to ACAS Link to Conciliation Officer Conciliator promotes settlement within prescribed period If not settled, Conciliator issues early conciliation certificate and Claimant can proceed to lodge Employment Tribunal claim Who is covered? Exemptions Post claim conciliation
- 7. Financial penalties for employers WHEN? From 6 April 2014 WHAT? Fines of up to £5,000 can be ordered Awards made where Respondent loses and there are “aggravated features” Fines payable to the Exchequer
- 8. Tribunal statistics Number of claims per month between 4421 and 5066 between January and June 2013 1117 claims received in September Median award for unfair dismissal was £4,832 Median disability discrimination award was £7,536 Increase in costs awards
- 10. Settlement agreements & pre-termination negotiations WHEN? From 29 July 2013 WHAT? “Compromise Agreements” renamed “Settlement Agreements” Introduction of “pre-termination negotiations” Extension of the “without prejudice rule” “Pre-termination negotiations” inadmissible as evidence in ordinary unfair dismissal proceedings unless improper behaviour by employer Beware - admissible as evidence in other claims - difficult to ring-fence pre-termination negotiations
- 11. Collective consultation WHEN? From 6 April 2013 WHAT? Where an employer proposes to dismiss 100+ employees [at one establishment] within a 90 day period, consultation period before first dismissal takes effect reduced from 90 days to 45* days 30* day consultation period where 20-99 employees to be dismissed within a 90 day period – no change Maximum protective award remains 90 days Expiry of fixed-term contracts excluded * Note: minimum consultation period
- 12. Third party harassment WHEN? From 1 October 2013 WHAT? Repeal of 3rd party harassment provisions BEWARE Duty of care owed to staff Implied term of “mutual trust and confidence” Claims under the Equality Act 2010 Protection from Harassment Act 1997
- 13. Changes to whistleblowing laws WHEN? 25 June 2013 & beyond WHAT? Introduction of the requirement for the whistle-blower to hold a “reasonable belief” that the protected disclosure is “in the public interest” Removal of “good faith” requirement Changes regarding an employer’s liability where whistle-blower subjected to detrimental treatment by colleagues Job applicants
- 14. Employee share ownership WHEN? 1 September 2013 WHAT? A new employment status Employees give up certain employment rights in return for a minimum of £2,000 paid up shares As bad as it sounds? As good as it sounds? Government guidance - gov.uk website
- 15. Unfair dismissal due to political affiliation WHEN? 25 June 2013 WHY? Redfearn v United Kingdom [2012] ECHR 1878 – held that UK laws violated the European Convention of Human Rights WHAT? Removal of the qualifying period for unfair dismissal claim where the reason or principal reason for the dismissal “is, or relates to, the employee’s political opinions or affiliation”. Not a new protected characteristic or new ground for automatic unfair dismissal
- 16. Case law update
- 17. Scenario 1 Nosedive Ltd sees a dramatic decline of sales due to its main competitor launching a thriving rival product. A rescue programme earmarks 4 stores across the network for closure. Store sizes vary: Liverpool – 32 staff Coventry – 16 staff Manchester – 35 staff Leeds – 18 staff For which stores do collective consultation obligations arise? For how long?
- 18. Change to collection consultation NOTE: Subject to appeal 2014 Case: USDAW v Ethel Austin Ltd (in administration) & another EAT
- 19. Scenario 2 Bob is made redundant from the cake factory at which he has worked for the last 2 years. He asserts entitlement to an enhanced package as his employer has, he says, a policy of paying enhanced redundancy terms. The enhancement is referred to in the HR manual (available on request but not widely distributed). It is accepted that enhanced terms have been paid for the last 3 redundancy programmes.
- 20. Creation of implied rights Case: Shumba & others v Park Lakes Ltd (CA)
- 21. Scenario 3 Sally requests her colleague, Benjamin, to attend a disciplinary hearing as her companion. You refuse the request due to concerns that he has a pending grievance against the disciplinary manager and he will try to hijack the meeting. Is it acceptable to insist on Sally choosing another companion?
- 22. Right to choose companion Case: Toal & others v GB Oils EAT
- 23. Scenario 4 Mr H is entitled to 28 days statutory holiday each year. Following a stroke, he is absent from work, straddling 2 holiday years. He is then dismissed before returning to work. He is paid for holiday accrued in this holiday year but not the previous one. Should he be allowed to carry over from last year?
- 24. Carry over of holiday entitlement Holiday still accrues during absence If there is no opportunity to take it in the holiday year, it should carry over (and must not be paid in lieu except on termination) Carry over is limited to minimum 4 weeks’ holiday under the Working Time Directive Case: Sood Enterprises Ltd v Healy EAT
- 25. What to expect in 2014 & beyond
- 26. Abolition of discrimination questionnaires WHEN? 6 April 2014 WHAT? Current statutory process Changes taking effect: New non-statutory process No prescribed format Informal questions in writing Possible ACAS guidance to be issued No adverse inferences if do not respond?
- 27. Changes to Flexible Working WHEN? Due to be implemented in Spring 2014 WHAT? Extension of right to request flexible working to all employees with qualifying service No statutory procedure for responding to requests New statutory ACAS Code of Practice Duty to consider requests in reasonable manner Prescribed grounds for rejection are likely to remain
- 28. Family friendly rights WHEN? Due to be implemented in 2015 WHAT? Abolition of additional paternity leave/pay Introduction of Shared Maternity Rights Parents choose how best to split the leave/pay entitlements Parents can share up to 50 weeks’ leave + 37 weeks’ pay Unpaid parental leave extended to all children up to age of 18
- 29. Equal pay audit WHEN? Expected in October 2014 WHAT? Employment Tribunal may order employer to undertake equal pay audit New powers to order content/time limits and whether audit will be disclosed Penalty of up to £5,000 for non compliance Exemptions apply
- 31. Annual Employment Law Review OUR SERVICES •Employment Law Advice •Training through T&E Advance •T&E Complete – all inclusive employment protection package •T&E Consult – HR, health & safety, coaching and mediation consultancy services •Corporate Finance •Commercial Law advice •Commercial Litigation •Commercial Property •Property Litigation
Editor's Notes
- DP
- THD The cap will be calculated using the year’s gross salary. Pension contributions, benefits in kind and discretionary bonuses will be excluded from the calculations. The statutory cap will now be revised in line with the Retail Price Index on 6 April each year, rather than 1 February and will be rounded up to the nearest pound, rather than rounded up the nearest hundred. The idea of the cap is to help manage employees expectations of likely compensation, encouraging early resolution of disputes and creating more certainty for employers over the likely total cost of an unfair dismissal claim. There are concerns that employers may in fact be more willing to go to tribunal if the amount they have to pay is reduced. There is a further concern that introducing the cap of one year’s pay on unfair dismissal claims will increase the likelihood of other uncapped claims, such as discrimination and whistleblowing being brought. As part of the consultation, the government used figures from “Survey of Employment Tribunal Applications 2008” which suggested that only 5% of all unfair dismissal Claimants recover compensation in excess of 12 months’ losses. These figures are now significantly out of date and it is certainly more common for Claimants to substantiate a longer period of unemployment following an unfair dismissal than it was in 2008, following the recession. The cap on unfair dismissal awards is being judicially reviewed by a law firm from London. This is arguing that older people are more likely to be out of work for longer than a year and but for the new cap, would be entitled to recover more than a year’s salary. As a result, older potential Claimants would be put off from bringing a claim and the cap is therefore indirectly age discriminatory.
- THD Since 29 July 2013 fees have been payable in respect of any claim presented to an Employment Tribunal. There are different types of claim. Type A claims which attract a lower fee include claims for statutory redundancy payments, equal pay, unlawful deduction from wages, breach of contract, failure to inform and consult under TUPE and claims under the Working Time Regulations. Type B claims include unfair dismissal, discrimination and whistleblowing. There will be separate hearing and issue fees depending on the type of claim, with the maximum of £1,200 payable to take an unfair dismissal claim all the way to a final hearing. Tribunals have the discretion to order employers to compensate employees for these fees if the claims are successful however, this is not a requirement. There are further fees of between £60 and £350 for various types of application to the Employment Tribunal, including applications for reconsideration of a default judgment, reconsideration of a judgment following a final hearing, dismissal of proceedings following withdrawal or counterclaim by an employer for breach of contract. Higher fees can be payable in claims by multiple employees. Hearing fees are also payable in the Employment Appeal Tribunal. There is a fee remission system which reduces or removes the requirement to pay the fees, depending on the Claimant’s disposable capital and gross monthly income. A Tribunal must reject a claim if it is not accompanied by either a fee or an application for a remission. If a claim is issued with a fee but the amount paid is lower than the applicable issue fee, the tribunal will send a notice to the Claimant setting a date by which the balance of the fee must be paid, in absence of which the claim must be rejected by the Tribunal. If a claim is rejected the Tribunal will return the claim form to the Claimant, with a notice of rejection explaining why it is rejected. If the limitation period has not expired the Claimant will be able to present the claim again with the fee or remission application. However, if the limitation period has expired they will be out of time to bring their claim. If the claim has been issued with an application for a remission and that application is refused in full or in part the Tribunal will send a notice to the Claimant setting a date for payment of the amount due, in the absence of which the claim will be rejected by the Tribunal. There is a fee of £600 payable by the Respondent for judicial mediation. If the claim is dismissed following the none payment of a hearing fee the Claimant can apply for reinstatement of the case, which will only be effective after the fee is paid or the remission application is presented and accepted. The implementation of Tribunal fees is being judicially reviewed by the trade union Unison. Unison have argued that fees are discriminatory because they disproportionately affect women on “average incomes” who are not entitled to fee remissions. The union also submitted that there had been no assessment of the potential adverse effect of introducing fees in relation to the proportions of claims brought by individuals with protected characteristics.
- THD Current Conciliation Position This service is currently voluntary. ACAS already offer conciliation in Employment Tribunal disputes, but also offer a voluntary pre-claim conciliation process. The ACAS officer’s role is to explain the conciliation and Employment Tribunal process and what will be taken into account in determining a case. They will move on to discussing options open to the parties, including arbitration of appropriate, help each party to understand the other party’s case, explore resolution of the matter including proposals a party makes for settlement. The office cannot make nay judgment on a case, including predicting the likely outcome, or advise on whether a settlement proposal should be accepted, take sides, or help a party prepare their case. The Government has recognised the benefits of ACAS Conciliation, as is a simple way of settling a matter with a neutral person, particularly in cases where a go-between would break a deadlock in the more contentious cases. The process is quick, as once a settlement is reached, ACAS contact the Employment Tribunal to tell them to remove the case from the List. Research also shows that settlement was reached through ACAS in 8 out of 10 cases which were submitted to the ET between November 2010 and November 2011. The services are free and they are also confidential and inadmissible as evidence. As part of its plans to make the tribunal system more efficient, the government is to impose a duty on the parties and ACAS to attempt early conciliation of employment disputes before a Tribunal claim is issued. There will be a new four stage process. Step 1 The prospective Claimant must send "prescribed information" in the "prescribed manner" to ACAS. It is envisaged that the prospective claimant will be required to fill in an early conciliation form and must deliver the completed EC form to ACAS either online, by post or hand delivery. The form does not need to contain details of the claim, but does need to contain information about names, addresses and contact details. Step 2 After an Early Conciliation Support Officer has made initial contact with the prospective claimant and confirmed that they wish to proceed, the claimant's information is sent to a Conciliation Officer, who will usually contact the Claimant within two working days; Step 3 The conciliation officer must try to promote a settlement within a "prescribed period”. This means that the conciliator will have one calendar month from the date of the prospective Claimant's completed early conciliation form to promote a settlement between them. The conciliation period may be extended by ACAS for up to two weeks where the conciliator considers that there is a reasonable prospect of achieving a settlement by the end of the extended period and both parties agree to the extension. It is thought that reinstatement or re-engagement will be more widely promoted as the settlement outcome; Step 4If a settlement is not reached, the Conciliation Officer must issue an Early Conciliation Certificate. This could be because settlement has not been reached when the prescribed period expires, because the Conciliator believes settlement is not possible, because a party cannot be contacted or because a party does not wish to conciliate. The Claimant will be unable to pursue most Tribunal claims without a certificate from ACAS. Limitation periods will be extended to take account of the "prescribed period“. However, if a prospective Respondent requests early conciliation, the limitation clock will not stop. The ET1 Claim Form will also be updated to include a new box for filling in the unique EC Certificate reference number and the claim will be rejected without this information. Who is Covered? The basic position is that "relevant proceedings" which are those listed in the Employment Tribunals Act 1996. Other than in very limited circumstances, all prospective claimants should have to comply with the early conciliation requirement. Exemptions Certain cases are exempt, in relation to failures in an asset purchase to notify employee liability information, an employee's entitlement to a payment out of the National Insurance Fund, void terms in Collective Agreements if they are prohibited by the Equality Act 2010, appeals against improvement or prohibition notices, appeals against a notice issued by the Health and Safety Executive or a local authority, a Duty of Secretary of State to pay unpaid contributions into a pension scheme. If the Claimant is part of a group action where another person in the group has submitted the claim details, not every Claimant will be required to participate. Nor will the service be mandatory if the Respondent has already begun the conciliation process. Claims issued against MI5, the Secret Intelligence Service or the Government Communications Headquarters are exempt. Post Claim Conciliation The ACAS conciliation service for claims which have been issued will largely remain the same, with verbal settlements remaining binding and the prescribed format of a settlement being drawn up under a COT3 Agreement.
- THD Tribunals have the power to award financial penalties of up to £5,000 against employers who lose Tribunal claims which are brought on or after 6 April 2014, where these cases have “aggravated features”. The fine is payable to the Exchequer. A penalty may be awarded even if a financial award is not made to the Claimant. If a financial award has been awarded, the financial penalty must be 50% of the amount awarded. If the claim was considered, together with another claim involving a different worker (but the same employer), the maximum amount of the penalty is 50% of the financial award of both cases up to a maximum of £5,000. The employer does not have to pay the full penalty if it pays 50% of the penalty within 21 days. Tribunals must take account of the employer’s ability to pay. On the one hand the Government is trying to reduce the burden on businesses and make it less costly for employers to be faced with Tribunal claims. On the other hand, given litigation risk and the prospect of a potentially heavy fine, employers may feel that they are being put under undue pressure to settle unmeritorious claims. There is a lack of clarity on what will amount to “aggravating features” which are not explained or defined in legislation. The only guidance that the Government has issued in relation to this is that “aggravating features” may include “the breach involving unreasonable behaviour, for example where there has been negligence or malice involved”. This however gives Tribunals broad scope to apply the penalty, taking into account any factors that it considers relevant, including the circumstances of the case and the employer’s circumstances, which could include “the size of the employer, the duration of the breach of the employment right or the behaviour of the employer and of the employee”.
- THD The Ministry of Justice has published provisional statistics for the receipt of Employment Tribunal claims for the three months to September 2013. When compared to single claims brought in the first six months of 2013 there was a large increase in July, when people brought claims ahead of Tribunal fees coming in. Subsequently, there appears to be a sharp reduction in fees, down to just 1117 in September. Part of this may be fees being accompanied by remission applications which are yet to be processed however, it would be surprising if the introduction of Tribunal fees did not have an impact on the amount of Tribunal claims brought. Downward trend continues event before fees were introduced. 71,000 claims in 2009/10 down to 55,000 in 2012/13. Remarkable consistency in ways in which claims are concluded over the last six years. 40% settle through ACAS 10% successful at hearing 10% unsuccessful at hearing 25% withdrawn 15% struck out or default judgments The average awards for unfair dismissal and discrimination remain relatively static, at around £5,000 for unfair dismissal and £7,500 for disability discrimination. Slight downward trend for discrimination award to an average median award of £5,869. There is a slight increase in the number of costs awards made against Claimants, 48 of which totalled over £10,000, since Employment Tribunals have been able to award up to £20,000 in costs, after April 2012. These figures are provisional only and further assessment of the number of Tribunal claims brought since the implementation of Tribunal fees will happen after further statistics are released on 12 December.
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- JA Answer Individually – Liverpool/Manchester but recent case… The collective consultation obligations in TULRCA apply where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less. In USDAW v Ethel Austin Ltd (in administration) and another case UKEAT/0547/12; 0548/12, the EAT considered whether TULRCA could be interpreted in line with the Collective Redundancies Directive to ensure that protective awards were made to Woolworths' employees who worked at stores at which fewer than 20 people were employed. For some time, it has been acknowledged that the words "at one establishment" in section 188(1) of TULRCA are incompatible with the underlying EU Collective Redundancies Directive which applies if the employees concerned are at different establishments. However, the UK courts have previously been unwilling to adopt a purposive interpretation to rectify this discrepancy. Now, the EAT has ruled that the words "at one establishment" are to be disregarded for the purposes of any collective redundancy involving 20 or more employees i.e. must be read in line with Directive. This is a significant change to the law. Once it is proposed that at least 20 employees in a single business are to be made redundant in a 90-day period, their place of work will be irrelevant for the purposes of triggering the information and consultation obligations for Woolworths’ employees from the smaller stores were entitled to a protective award (up to 90 days). (3000+ and 1200 at Ethel Austin) (USDAW v Ethel Austin Ltd (in administration) and another case UKEAT/0547/12; 0548/12.)
- JA Employing entities: group co treated separately so if employed by 3 group co with 10 in each, no collective consultation. Possible anti-avoidance measures. Multiple sites including retail Single service company employing staff across various independent sites Outsource providers who service multiple, unrelated client businesses As a result of the EAT’s decision, the duty to consult about collective redundancies is not restricted to situations where 20 or more dismissals within 90 days are proposed ‘at one establishment’. Thus, whenever 20 redundancies are proposed in total within 90 days, anywhere in the employer’s business – even if they are all at different locations – the employer will have to observe the statutory information and consultation obligations. Overturns decades of accepted practice. Secretary of State have now requested appeal. They didn’t turn up to the hearing or EAT (said they had nothing useful to add to the issue of consultation). The Secretary of State apologised to the EAT for his failure to participate in the case at an earlier stage. Before the EAT handed down its judgment he had not appreciated that ‘the issues raised by this appeal are of wide importance – far beyond the facts of these particular appeals’. In considering whether to grant permission to appeal the EAT noted that in Lyttle v Bluebird UK Bidco Ltd (Brief 979), a case with similar facts, a Northern Irish Industrial tribunal had made a reference to the ECJ on the correct interpretation of the Directive on this matter. The EAT considered it relevant that the ECJ is now seised of an issue which is potentially determinative of the case. Furthermore, there was no doubt that the EAT’s judgment had made a substantial change in the law, which it is in the interests of all to clarify as soon as possible. The EAT therefore granted permission to appeal, but on condition that the Secretary of State reinforce his offer of indemnifying the claimants against an award in his favour and that he pay the reasonable costs of the claimants in responding to the appeal in the Court of Appeal, on the standard basis. The EAT decided to apply such a condition due to the ‘unique’ circumstances of the case, which include the Secretary of State failing to appear in the tribunal or EAT despite being a party to the Woolworths case.The case is currently listed to be heard by the Court of Appeal between 2 January and 29 April 2014 with the reference A2/2013/2098. Claims being brought against SS because companies were in administration (liability against state as application under National Insurance Fund). BUT huge burden on business so it is at odds not to appeal it… NB. 45 days for 100+ employees now.
- JA The question is whether employer conduct viewed objectively, conveyed to the employee that the employer intended to be bound (see next slide). Referral back from CA to remit to ET for fresh hearing. Facts above: Whilst employed: Consistently but why? When HR document written? Who published to? Prior communication? If not widely distributed, how does he know of it?
- JA LJ Underhill Frequency On how many occasions has benefit been provided? How long? Over how long a period has benefit been provided? = more reasonable to expect as of right? Variety/consistency Variable benefits/ades certainty of expectation. Employer may bind itself to a minimum level of benefit, even if it pays more from time to time on a discretionary basis. Publicity Conveys that may be paid by obligation. Terms What language is used? Denotes discretion? Avoid language such as “entitlement” which points to legal obligation. Consider express terms. Don’t imply a term if inconsistent with express term. Equivocalness Employee has burden to show that a practice is contractual. If, viewed objectively, employer has good explanation for why each year and for some time, a benefit has been consistently paid, courts will be less likely to find a legal obligation. NB – side letters, agreements etc – useful to have discretion on some benefits as “perk” for flexibility and in negotiations.
- JA Case EAT The EAT has held that an employer breached section 10 of the Employment Relations Act 1999 when it refused an employee's request to be accompanied at a grievance hearing by a certified union officer. The employee's right to choose a companion was an absolute right, subject only to the limitations imposed by section 10(3), that the companion be an appropriate union representative or one of the employer's other workers. Workers have a statutory right to be accompanied by a trade union representative or a fellow worker of their choice at a disciplinary or grievance hearing. Where an employer fails, or threatens to fail, to comply with this right, the worker may bring a tribunal claim. If the claim is upheld, the tribunal must order the employer to pay compensation of up to two weeks' pay. However, the EAT went on to find that where a tribunal found that this right had been breached but was satisfied that no loss or detriment had been suffered by the employee, it should "make an award of nominal compensation only, either in the traditional sum now replacing 40 shillings - £2 - or in some other small sum of that order". GB Oils argued that, in construing section 10(1)(b), the tribunal was entitled to have regard to the Acas Code of Practice on Disciplinary and Grievance Procedures and, in particular its statement that: "To exercise the right to be accompanied a worker must first make a reasonable request. What is reasonable will depend on the circumstances of each individual case. However it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing nor would it be reasonable for a worker to ask to be accompanied by a companion from a remote geographical location if someone suitable and willing was available on site."
- JA It is hard to see why the reasonableness of a request to be accompanied cannot extend to a worker's choice of companion since an employer may have legitimate concerns about the identity of a proposed companion in particular circumstances. However, the suggestion that the breach of an absolute right can be categorised as being potentially worth only nominal compensation appears to undermine the protection the right is supposed to afford the worker.
- JA NHS v Lauder: confirmed carry over if no opportunity to take the leave but question unanswered: whether the Directive requires carry over of 5.6 weeks’ leave where a worker is prevented from taking holiday due to long term absence.
- JA Distinguish Fraser – dealt with in Larner in passing (Fraser return to work and had opportunity to work after a period of sickness). Sood: now confirmed as limited to the basic minimum of 4 weeks (WTD), not 5.6 weeks (WTR).
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- BH The current statutory process: Written questionnaires can be served on any person or organisation whom they believe has unlawfully discriminated against them or in contemplation of an equal pay claim questionnaire can be served any time before an employment tribunal claim is issued or within 28 days after issue responses should be provided within 8 weeks failure to provide any response or if only an evasive response is given will result in an adverse inference of discrimination by the tribunal. Discrimination Questionnaires were originally expected to be abolished with effect from March 2013, however the Act did not receive Royal Assent in time. On 10 June 2013 the government issued a timetable indicating that discrimination questionnaires will be abolished from 6 April 2014. However, it is envisaged that these will be replaced with a new informal, non-statutory questionnaire process, which the government believes will make the discrimination questionnaire process fairer for all. There will be no prescribed format as there is at present, however informally questions can be raised in writing in discrimination and equal pay claims. There will be no obligation on an employer to respond substantively, or even at all. Employers should consider ACAS guidance on how or whether to respond, but will have more opportunity to avoid responding or providing detailed responses than the current process. It is thought that ACAS will produce non statutory guidance on how complainants can ask questions of their employer and why and how employers should respond. The status of the proposed ACAS guidance is unclear, but is unlikely to have any significant penalty for an employer if it is not followed unless it is elevated to a Code of Practice. If it is a Code rather than guidance, employers failing to follow it will risk adverse inferences from the Employment Tribunal. Larger employers who are perceived as having greater administrative resources to respond to informal questionnaires will most likely bear the burden of responding to questionnaires raised after the abolition of the statutory process.
- BH The right to request flexible working will be brought in under the Children and Families Bill 2012-13. Currently, flexible working requests are only open to employees with 26 week’s service who wish to request flexible hours to care for a dependant and there is a relatively onerous statutory process for both employer and employee to follow. The new Bill will amend the ERA 1996 to extend flexible working rights to all employees with 26 weeks' service, rather than just those employees who qualify as parents or carers. Employers will also no longer be required to follow the statutory procedure regarding flexible working requests, and must instead consider all requests reasonably. On 25 February 2013, ACAS launched a consultation on a draft statutory code of practice to help employers deal with the new extended right to request flexible working and the replacement of the current statutory procedure with a duty on employers to consider requests in a reasonable manner and to notify employees of their decision within three months unless an extension is agreed. The prescribed grounds for rejection of a flexible working request are anticipated to remain in force under the new guidance, but it is hoped that the right to request procedure will be simplified under the new rules.
- BH On 13 November 2012, as part of its response to the Consultation on Modern Workplaces, the government announced a new system of statutory parental rights to be introduced in 2015. This is designed to allow parents to choose how best to balance their work and childcare responsibilities. Parents will be able to share the statutory leave and pay that is currently only available to mothers. Flexible parental leave can either be taken by each parent consecutively, or by both parents concurrently, as long as the combined amount of leave does not exceed the amount which is jointly available to the couple. The 52 weeks of maternity leave (39 weeks paid) will remain in place as the default position for all employed women, as will the two week period of compulsory maternity leave, which applies from the day of the child's birth. The new system will allow parents to share between them up to 50 weeks of leave and 37 weeks of pay (that is, everything other than the compulsory period). Similar principles will apply to statutory flexible parental pay, which will be available as an alternative to statutory maternity pay. Additional paternity leave and additional paternity pay will be abolished, and there will be no extension to the current statutory paternity rights. The entitlement to unpaid parental leave will be extended from 13 to 18 weeks for each child from March 2013, and from 2015 each parent will be able to exercise this right for children up to the age of 18, whereas this presently only applies up to age 5.
- BH New Regulations giving the Employment Tribunal the right to Order an Equal Pay audit are also due to come into force at some stage in 2014, and experts believe this will be implemented in around October 2014. The effect of the new Regulations will mean that the Employment Tribunal will be required to order an employer to undertake an equal pay audit where it finds that they have breached equal pay law, unless one of the exceptions applies. The Employment Tribunal will be given new powers to order the content of the audit and whether the audit has been complied with, including any relevant time limits. It can also govern whether the results of the audit should be disclosed. The Employment Tribunal will also be given the power to impose a penalty of up to £5,000 for non-compliance with an equal pay audit order. However, it is envisaged that there will be an exemption period for micro and start-up businesses. The Employment Tribunal will not be required to Order an audit if one of the exemptions applies. Therefore, if an employer has undertaken an audit in the last three years that satisfies the prescribed requirements, it is clear without the audit what action, if any, is required to prevent any future breaches of equal pay legislation, or if the Employment Tribunal finds no evidence that there is a systematic problem at the employer’s business with equal pay law. There will also be a general power to decline to Order an audit if the Employment Tribunal considers the disadvantages would outweigh the benefits.
- DP To discuss Alemo-Herren & others v Parkwood Leisure Ltd and reforms to TUPE. Plug March seminar on TUPE.