The document summarizes recent employment law updates in the UK. It discusses cases related to post-employment victimization, collective redundancy consultation, challenges to new tribunal fees, mandatory early ACAS conciliation, zero-hours contracts, penalties for employers losing tribunals, shared parental leave, flexible working requests, TUPE reform, changes to rehabilitation periods, sickness absence review, and a modern workplaces consultation.

1. EMPLOYMENT LAW UPDATE
Matt Jenkin
Partner

2. Post Employment Victimisation under the
Equality Act 2010
• Previous conflicting EAT decisions
– Jessemy v Rowstock Ltd and another – not
covered
– Onu v Akwiwu – is covered
• Confirmation from Court of Appeal
– Overturned EAT decision in Jessemy
– Post-employment victimisation is covered
– Clearly a drafting error
– Should “go with the grain of the legislation”

3. Collective Redundancy Consultation
• Usdaw v Ethel Austin Ltd (in administration) and another
• So called “Woolworths” case
• Changed law on consultation in a collective redundancy
situation
• Words “at one establishment” to be disregarded
• Referred to ECJ by the Court of Appeal
• Tribunals staying “Woolworths” type cases pending decision
• Employers need to take cautious approach to collective
redundancy consultation

4. Judicial Review of New Tribunal Fees
Regime
• Fees in force since July 2013
• Unison brought Judicial Review challenge
• Court (after some delay) dismissed the challenge
– Application premature
– Lack of robust evidence
– Clarity that winning employee will recover fees from the
employer
– Door left open to future challenge
– Unison intend to appeal to Court of Appeal
• Impact of fees regime -79% drop in cases?

5. Mandatory Early ACAS Conciliation
• In force from 6 April 2014
• Transitional provisions 6 April – 5 May 2014 – available but not
compulsory
• Mandatory for claims presented on or after 6 May 2014
• Process for early conciliation
– Prospective claimant submits details of dispute to ACAS
before bringing the claim
– Early conciliation period of one month
– Refused/unsuccessful – certificate issued and claim can
proceed
• Impact of new process?

6. Zero Hours Contracts
• Government launched consultation on 19.12.13 and closed on
13.3.14
• Consultation revealed 2 main areas of concern
– Use of exclusivity clauses
– Lack of transparency
– Complete ban not an option under consideration
• Private Members Bill
– Ban use of zero hours contracts
– Unlikely to become law

7. Financial Penalties for Employers Who
Lose Tribunals
• In force for cases presented on or after 6 April 2014
• Financial penalty of 50% of financial award
• Subject to £100 minimum and £5,000 maximum
• Payable to Government and not the winning employee
• Awarded at discretion of Employment Tribunal – need
“aggravating” features
• 50% discount if paid within 21 days

8. Children and Families Act 2014
• Shared Parental Leave
– Available for parents of children expected to be born or
placed with them for adoption on or after 5 April 2015
– Eligible employees entitled to a maximum of 52 weeks and
39 weeks statutory pay
– Shared between parents
– Draft regulations published for comment – not for the faint
hearted!
– Likely impact – cultural as well as legal shift needed?

9. Children and Families Bill
• Time off to attend ante-natal appointments
– Unpaid time off work
– Father and partners
– Attend 2 ante-natal appointments
– Max of 6 and a half hours per appointment
– Many employers offer more generous benefit
– From 1 October 2014

10. Children and Families Bill (cont)
• Right to request flexible working
– Widen right to request to all employees with 26 weeks
service
– Abolish current detailed statutory flexible working request
procedure
– Replace with a broader duty to deal with requests
reasonably within a reasonable period of time
– Planned implementation date of 6 April 2014
– Delayed – now coming into force on 30 June 2014
– Impact on flexible working policies?

11. TUPE Reform
• TUPE reform 31 January 2014 via CRATUPEAR(!)
– Not as far reaching as envisaged from start of consultation
– Service provision change definition remains
– Pre-transfer collective consultation
– Employee liability information – provided 28 days rather than
14 days prior to transfer (for transfers on or after 1.5.2014)
– Changes to obligations to inform and consult requirements
for micro-businesses (under 10 employees)
– Change in location is an ETO reason
– Threat of annulment?

12. Changes to Rehabilitation Periods
• In force from 10 March 2014
• Period of rehabilitation now runs from date that imprisonment
ends rather than date of conviction
• Periods are substantially reduced
• After rehabilitation period individuals are no longer required to
disclose criminal convictions on job applications (subject to
some exceptions)
• For example – 12 month prison sentence now “spent” 4 years
after the date of sentence rather than 10 years after
conviction.

13. Sickness + Absence Review
• Increased emphasis on managing absence in the
workplace
• State-funded assessment by OH for employees who
are off for 4 weeks or more – some time in 2015
• Abolition of Percentage Threshold Scheme (recovery
of SSP payments) – 6 April 2014
• SSP record keeping requirements to be abolished
• £500 tax exemption for health related benefits paid
by employers to support an employee’s return to
work

14. Modern Workplaces Consultation
• Consultation published in November 2012
• Government not published its response
• Intention is to bring Working Time Regulations into line with ECJ
decisions on sickness absence and holiday entitlement
– E.g. carry over of holiday leave accrued but not taken.
– No current implementation date

15. Matt Jenkin
Partner
Employment
mjenkin@hcrlaw.com
01242 2464458
07715059435
Cheltenham Office