28/05/2015
Anne Palmer provides the first News Round Up of the new financial year, and covers: new restrictions on zero hours contracts now in force (along with a number of other changes which are effective this month); the new 'IP' process for dismissing and disciplining local authority 'protected officers'; the latest in the ongoing holiday pay saga; what the new government has in store for employment law; and, finally, the latest on the Fit for Work scheme – check whether your area is covered on the 'roll out' map.
Zero-hours contract restrictions in force
As you may remember, we previously reported in our article The Truth About Zero-Hours Contracts that we were awaiting commencement provisions for restrictions on the use of zero-hours contracts which were contained in the Small Business, Enterprise and Employment Act 2015. Those restrictions are now in force, with effect from 26 May 2015. The Employment Rights Act 1996 is now amended, so that 'exclusivity clauses' in zero-hours contracts are now unenforceable; however, the promised anti-avoidance measures (such as protection from detriment for workers who take jobs under other contracts) have not yet been implemented. Therefore, at present, there is only a standalone restriction on the enforceability of terms which seek to prevent zero-hours workers from obtaining work from other employers.
National minimum wage
New penalties for underpayments of the National Minimum have also been introduced with effect from 26 May 2015. The maximum penalty of f £20,000 may now be calculated on a per worker basis rather than on a per employer notice basis.
Whistleblower discrimination
A new power has been introduced (also as part of the Small Business, Enterprise and Employment Act 2015), which enables regulations to be made outlawing discrimination against whistleblowers who are applying for roles within the NHS. This is a regulation making power only; no such regulations have been made as yet. Further consultation is expected before any regulations are published.
DIP Replacement
The Local Government Association (LGA) has issued new interim guidance on changes to the statutory disciplinary and dismissal procedures for 'protected officers', i.e. heads of paid service, monitoring officers and chief finance officers. The advisory bulletin containing this guidance can be found here and relates to changes which are required in order to give effect to the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015. The new process replaces the statutory 'Designated Independent Person' (DIP) process and its key feature is that the requirement for a 'DIP' is removed; instead, in most cases, the dismissal of a 'protected officer' will require approval by full council by way of a vote. Please note that the LGA describes this guidance as "in essence interim", pending clarification of the detail of the new requirements by the DCLG, and the outcome of discussions within the JNC for Chief Executives of local authorities. In terms of timings, the 2015 regulations require authorities to put in place the necessary standing orders “no later than the first ordinary meeting of the authority falling after 11th May 2015”. For further information on the new IP process, please click here. We have a wealth of experience of dealing with local authority dismissal procedures, so if you have any queries regarding the new arrangement, we would be happy to assist – please do contact me or your usual Bevan Brittan contact.
Holiday pay & commission – the latest developments
The holiday pay saga continues this month, with an appeal being lodged to the Employment Appeal Tribunal (EAT) in the case of Lock v British Gas. This is an appeal against the March 2015 employment tribunal decision that commission should be included as an element of 'normal pay' for the purposes of holiday pay – for a summary of the tribunal's decision, please click here.
The appeal is based on the question of whether British domestic law can be interpreted ‘purposively’ so as to give effect to recent run of holiday pay cases, which appear to be establishing the principle that holiday pay should be based on pay that is 'normally received' – including, in the case of Lock, commission.
The appeal will probably be heard by the EAT towards the end of this year. Therefore, before you make any changes to your holiday pay policy or procedures, we suggest that you contact me or your usual Bevan Brittan contact.
New Conservative government – what's next for employment law?
As the dust settles on the campaign trail, and the new Conservative government beds in, what is the future likely to hold for employment law?
Based on the key pledges in the Conservative Party manifesto and the Queen's Speech, we can expect the new government to implement the following policies:
- Cap on public sector exit payments
- An 'in/out' referendum on EU membership and negotiation over the terms of our EU membership by 2017.
- Retention of employment tribunal fees (subject to the outcome of the current judicial review of the decision to introduce fees).
- The Human Rights Act 1998 will be repealed and replaced with a 'British Bill of Rights', and the European Court of Human Rights will become an advisory body only. Precise details of how this will be achieved are yet to be announced by the new justice minister and lord chancellor, Michael Gove.
- Significant changes to strike laws have been promised, including
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- the introduction of a minimum turnout requirement for strike ballots in essential public services,
- a requirement that strike action cannot be called on the basis of historical ballots and
- repealing the current ban on the use of agency workers to cover employees on strike.
For further details of key Conservative Party manifesto pledges that affect employment law, please see our May 2015 briefing on 'employment law and the election'.
Fit for Work is on its way…
The government's new, free, occupational health scheme is now being rolled out – please see Fit for Work's Roll Out Map to check when GPs in your area may be able to make referrals. The Fit for Work service will be available nationally by Autumn 2015 – currently the scheme is available in Sheffield, Betsi Cadwaladr, South Yorkshire, Abertawe Bro Morgannwg and Bassetlaw. For our 'Q&A's on key aspects of the Fit for Work scheme, please click here.
