1. BHW Employment Law
Newsletter
Spring 2014

2. Welcome to the Spring 2014 edition of the
BHW Employment Law Newsletter.
2014 looks set to follow 2013 in
being another year of change.
Some highly significant decisions
are expected this year on holiday
pay calculations, agency workers
and collective redundancies.
The changes to the TUPE
Regulations and what they mean for
employers are set out at page 3.
At page 4 we consider the increase
to the compensation rates, penalties
and the introduction of fees in the
Employment Tribunal.
The ACAS Early Conciliation process
which comes into force on 6th April
2014 is set out as page 5.
The right to request flexible working
and the name and shame for breaches
of the National Minimum Wage are
considered at page 6 and 7.
Page 8 provides an update to
the statutory payments which will
increase on 6th April 2014.
Finally, if you have any questions
relating to the articles featured in the
Newsletter or would like advice on a
particular query you may have, please
do not hesitate to contact me to
discuss further.
Laura Allanson
Head of Employment
0116 281 6237
laura@bhwsolicitors.com
Inside this issue
All change under the
TUPE Regulations 3
Increase in compensation
rates, penalties and
fees in the
Employment Tribunal 4
New ACAS compulsory
conciliation process 5
The right to request
flexible working 6
Name and shame:
government gets tough
on employers failing
to pay the National
Minimum Wage 7
What to expect in 2014 8
BHW Employment Law
Newsletter
2
Editor Laura Allanson. Articles produced by Laura Allanson and Claire Bell.
Laura Allanson is an Associate Solicitor and
heads up the Employment department.
She has over 11 years’ experience of dealing with
contentious and non-contentious employment
matters. Laura joined BHW after 10 years with the
National Farmers Union (NFU) and has a wealth of
agricultural and horticultural knowledge. Laura has
a real ability to ensure that her client’s problems are
resolved in a cost-effective and timely manner.
Claire Bell is a Solicitor in the Dispute
Resolution and Employment departments
and is involved with varied employment
and dispute resolution work.
Claire completed a 13 month secondment with
the Amateur Swimming Association and gained
extensive experience of sports law during her
time there.

3. 3
All change under the
TUPE Regulations
The Collective Redundancies and Transfer of Undertakings
(Protection of Employment) (Amendment) (Regulations) 2014
came into force on 31st January 2014 making changes to the
TUPE Regulations 2006.
Dismissal or changes in terms due to relocation
Changes to the terms of a contract of employment can
only be made for an economic, technical or organisation
(ETO) reason entailing changes in the workforce. The ETO
reason now includes a change to the place where the
relevant employees are employed.
Pre-transfer consultation where redundancies are
proposed
The new employer can now, if the current employer
consents, consult representatives of affected transferring
employees about proposed dismissals before the transfer
takes place. That period of consultation will count towards
the 30 or 45 day consultation period.
Collective Agreements
Variation of the contract of employment which seeks to
vary a term or condition incorporated from a collective
agreement, provided that the variation takes effect on a
date more than 1 year after the date of transfer. The rights
and obligations in the employee’s contract must be no less
favourable than those which applied immediately before
the variation.
Any provision in a collective agreement which is negotiated
after the transfer does not transfer to the employee if the
new employer is not party to the collective bargaining for
that provision.
Service Provision Changes
The activities carried out by the new service provider must
be fundamentally the same as those that were carried out
before the change by the previous service provider for
TUPE to apply to a Service Provision Change.
Future changes
From 1st May 2014 the minimum period for the current
employer to provide the new employer with ‘employee
liability information’ has been increased from 14 days to
28 days before the transfer. This will allow new employers
more time to assess the workforce and any potential
changes.
From 31st July 2014 micro-businesses (businesses with
fewer than 10 employees) where there are no employee
representatives and the employer has not invited affected
employees to elect employee representatives the employer
can consult with the affected employees direct.

4. 4
The introduction
in tribunal fees
on 29th July
2013 attracted
a lot of criticism
from various
commentators
that claimants
were being forced
to shoulder the
financial burden
to enforce rights
conferred on them
by law.
From 6th April 2014 the
statutory limits on the level of
compensation that employment
tribunals can award will increase.
Tribunals will have the power
to impose financial penalties of
up to £5,000.00 on employers,
where it determines that the
employer has breached worker’s
rights and the breach has one or
more aggravating factors.
We are also starting to see
the effects of tribunal fees of
respondents. Recent case
law suggests that the general
position will be that a successful
claimant will recover tribunal fees
paid from their employer by way
of a costs order.
So what does this mean for employers?
Increase in statutory
compensation limits
For most claims the level of
compensation that tribunals may
award is subject to statutory limits.
For example, the maximum unfair
dismissal basic award/statutory
redundancy payment is £13,500.00
and the maximum unfair dismissal
compensatory award is currently
£74,200.00 with a new secondary
‘individual’ cap of 52 weeks’ pay
introduced in July.
The date for annual increases has
been pushed back from 1st February
2014 to 6th April 2014 following
implentation of the Enterprise and
Regulatory Reform Act (ERRA) 2013.
From 6th April 2014 the new rates will
be:
• Weeks’ pay £464.00 (currently
£450.00)
• Maximum basic award/statutory
redundancy payment £13,920.00
(currently £13,500.00)
• Compensatory award £76,574.00
(currently £74,200.00)
• Basic + compensatory will be
£90,494.00 (currently £87,700.00)
Financial penalties
Employment Tribunals will have a new
power to impose financial penalties
on employers in claims involving an
employer and worker where it:
1. concludes that the employer has
breached any of the worker’s rights to
which the claim relates, and
2. is of the opinion that the breach
has one or more aggravating features.
The new power will only apply
where the case has ‘one or more
aggravating features’.
It remains to be seen how the tribunal
will determine what amounts to
‘aggravating features’.
The payment will be payable to
the Exchequer (not the claimant).
These penalties may be used as a
punishment to employers breaching
employee rights.
The amount will vary from a minimum
of £100.00 to a maximum of
£5,000.00. Where a financial award
is made in favour of the claimant, the
penalty will be 50 per cent of the total
award (subject to the minimum and
maximum limits).
An early payment discount wil apply
to reduce the penalty by 50 per cent
if paid within 21 days.
Fees
The courts are beginning to consider
the issue of repayment fees to
successful claimants.
The government guidance considers
the general position on the repayment
of fees is that if the claimant is
successful, the respondent will be
ordered to reimburse them.
We will continue to keep you updated
on the position with tribunal fees.
Increase in
compensation
rates, penalties
and fees in the
Employment Tribunal

5. 5
New ACAS compulsory
conciliation process
The ACAS Early Conciliation rules come into force on 6th
April 2014. (They are optional for the first month, and become
mandatory on 6th May 2014).
ACAS, the Advisory, Conciliation and Arbitration Service,
currently have a role in attempting to resolve disputes
between employees and employers both before and after
a claim has been issued.
If an employee wishes to bring a claim against their
employer in the Employment Tribunal (ET) they must
contact ACAS first. ACAS will appoint a conciliation officer
who will contact the employer to see if it is possible to
conciliate the dispute.
An Early Conciliation Form must be submitted for each
employer/respondent.
If the employee or the employer refuse to negotiate, or if a
settlement is not possible within one month, the Conciliator
will issue a certificate and this will enable the employee to
commence a claim in the ET.
The employee will then have one month from the date
of the certificate, or 3 months plus the length of the
conciliation period, whichever is later, to start a claim.
The benefit to employers
• Negotiations will be on a without prejudice basis.
This means that any refusal by either party to
negotiate and any proposals made by either party,
cannot be mentioned in any subsequent ET case if
conciliation fails.
• It will provide a warning to employers of an
employee’s intention to bring a claim.
• It provides an opportunity to conciliate the claim
early. There could be a reduction in legal costs.
• As compensation in most cases is based on the
employee’s loss of earnings, the earlier a claim
can be conciliated the less likely it will be that an
employee will anticipate a prolonged period of
unemployment.

6. 6
The right to request
flexible working
On 30th June 2014
the Flexible Working
Regulations will be
amended.
The government will
extend the right to request
flexible working to all
employees after 26 weeks’
service, rather than only
those with children under
the age of 17 (or 18 if
the child is disabled) and
certain carers.
The current statutory procedure
for considering requests will be
removed. Instead employers will have
a duty to consider all requests in a
reasonable manner. Businesses will
however, have the flexibility to refuse
requests on business grounds.
What does this mean for employers
• Employers have a statutory duty to
consider all applications provided
the employee has 26 weeks
continuous employment at the date
the application is made.
• Once agreed it becomes a
permanent change to the contract
of employment.
• An employee has the right to
appeal against the outcome.
• The employer can negotiate an
agreement if requested hours are
not possible.
• Only one application can be made
in a 12 month period.
There are many forms of flexible
working. It can describe a place
of work, for example, home-
working, or a type of contract, such
as a temporary contract. Other
possibilities are part-time working,
flexitime, job sharing and shift
working.

7. 7
Name and shame: government
gets tough on employers failing to
pay the National Minimum Wage
Employers who owe their workers thousands of pounds for failing
to pay them the correct National Minimum Wage (NMW) have been
named and shamed by Business Secretary Vince Cable.
The government is introducing
a series of tougher measures to
crack down on employers who flout
NMW law. The naming and shaming
scheme came into force on 1st
October 2013.
Five employers are the first to be
named under the stricter rules, who
between them owe workers a total of
over £6,800.00 in arrears and have
been charged financial penalties
totalling £3,381.40.
As well as being publicly named
and shamed, employers who fail to
pay their workers the NMW will face
higher financial penalties of up to
£20,000.00 as of 7th March 2014.
This will mean that the financial
penalty percentage will increase
from 50 per cent to 100 per cent of
total underpayments.

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The content of our Newsletter is provided for general information purposes only and does not constitute legal or other professional advice.
This firm is authorised and regulated by the Solicitors Regulation Authority - SRA number 383490
We have developed the BHW Employer Support
and Protection Schemes to support and protect
employers of all sizes with their employment
needs. If you would like more information on the
schemes please contact Laura Allanson on
0116 281 6237 or email laura@bhwsolicitors.com
Changes to statutory sick pay, maternity
pay and other statutory payments will
come into force in on 6th April 2014.
• Statutory Sick Pay (SSP) will increase to
£87.55 per week (up from £86.70).
• Statutory Maternity Pay (SMP), Statutory
Paternity Pay (SPP) and Additional Statutory
Paternity Pay will increase to £138.18 per
week (up from £136.78).
Some of the anticipated legislative and
judicial trends for 2014:
Collective redundancy consultation - the trigger,
numbers and meaning of proposals.
TUPE - consideration of Economic, Technical
and Organisational (ETO) reasons.
Holiday pay - what is normal ‘remuneration’?
Unfair dismissal - gross misconduct and
fundamental right?
Health - is obesity a ‘disability’?
Discrimination - questionnaires, enforcement,
equal pay and post-employment victimisation.
Zero-hours workers
Sports Direct employ 20,000 workers on
zero-hours contracts. They don’t receive paid
holiday, sick pay or bonuses which are available
to full-time employees. This is being challenged
as indirect sex discrimination and under the
Part-time Workers Regulations.
Following an information gathering period that
took place in late 2013, the government has
launched a formal consultation on the use of
zero-hours contracts.
What to expect in 2014