2012 – What to expect in employment law

2012 is set to be another bumper year for development and change within employment law and processes.  Jaspal Basra takes you on a quick run through of some of the significant changes that are expected in the months ahead, including legislative change, reforms and upcoming judgments.

Forthcoming Developments

February

• Tribunal Awards

The limits applying to tribunal awards and other amounts payable under employment legislation will increase for effective dates on or after 1 February 2012. In particular, the maximum amount of a ‘week’s pay’ will increase from £400 to £430 and the maximum compensatory award for unfair dismissal from £68,400 to £72,300.

March

• Parental Leave Directive

The Parental Leave Directive comes into force on 8 March 2012. Under this Directive the parents of a child under the age of five will each have the right to take up to 18 weeks' unpaid parental leave. The Directive will see an extension of 5 weeks from the right which currently exists under the Maternity and Parental Leave Regulations 1999 that enables parents to take up to 13 weeks unpaid leave. The Department for Business Innovation and Skills (BIS) has indicated that the Government will take its full allowance of one year before implementing the directive due to the ongoing development of its Modern Workplace Policy. The extension of unpaid parental leave to 18 weeks is therefore unlikely to come into effect until March 2013.

April

• Statutory rate increases
• • Weekly rates of statutory maternity, paternity and adoption leave pay will increase from £128.73 to £135.45 and the weekly earnings threshold for these payments will rise from £102 to £107.
  • Statutory sick pay will increase from £81.60 to £85.85, with the weekly earnings threshold also rising from £102 to £107.
  • Maternity allowance will increase from £124.88 to £135.45, with the earnings threshold remaining at £30.

• Tribunal reform

  As a result of the Government’s ‘fundamental review’ of the Employment Tribunal Rules of Procedure, substantial changes to employment tribunal procedure are expected to be introduced on 6 April 2012:

• Employment judges will hear unfair dismissal cases alone in the tribunal, unless they direct otherwise.
• The maximum amount of a deposit order, which a tribunal can order a party to pay as a condition to continuing with tribunal proceedings, will increase from £500 to £1,000. 
• The maximum amount of a costs order, which a tribunal may award in favour of a legally represented party, will increase from £10,000 to £20,000. 
• Witness statements are to be taken "as read" unless a tribunal directs otherwise.
• Unfair dismissal rights
  The qualifying period of service for unfair dismissal will rise to two years this change is set to take effect from 6 April 2012.
  October
• Pensions auto enrolment will begin
  From 1 October 2012, employers with 250 or more employees will be required to enrol eligible employees into a pension scheme, and make mandatory employer contributions, into a qualifying workplace pension scheme or the National Employment Savings Trust (Nest). Smaller and new businesses will have longer to implement auto enrolment with the provisions being gradually implemented over the next 4 years.

NHS Constitutional Changes: Whistleblowing

Following a public consultation on whistleblowing and the NHS Constitution it has been announced that the Constitution will be amended as part of a series of measures to promote whistleblowing. The reinforcement seeks to clarify the rights and responsibilities of staff and employers in respect of whistleblowing.   The following changes will come into effect early this year and will introduce:
an expectation that all NHS staff should report bad practice or mistreatment of patients receiving NHS care; 

• a pledge that NHS organisations should support staff by fully investigating their concerns and providing an independent contact for them to speak to; and
• clarity around the existing legal right for staff to raise these concerns without suffering any negative consequences.

Cases due before the Courts and Tribunals to watch

• Belief in the workplace
Eweida v United Kingdom; Chaplin v Royal Devon and Exeter NHS Trust Hospital (European Court of Human Rights) – The case will decide whether the UK Courts contravened Articles 9 and 14 of the European Convention on Human Rights (ECHR) in rejecting the Claimant’s indirect discrimination claims on the basis that they were unable to identify others with the same beliefs who had suffered a particular disadvantage as a result of their employer’s dress code. Ms Eweida brought claims of indirect religious discrimination against her employer on the basis that she was not allowed to wear crosses under workplace uniform policies. The Court of Appeal held that Ms Eweida's had failed to establish a "group disadvantage", in effect that she had not demonstrated that the requirement not to wear a cross put others at a similar disadvantage.  When leave to appeal against the decision was denied, Ms Eweida took her case to the European Court of Human Rights.

• Age Discrimination: Costs Justification
  Woodcock v Cumbria Primary Care Trust – The Court of Appeal will hand down its judgement this year which deals with the justification of indirect age discrimination. The EAT has held that an employer could justify dismissing their employee early to avoid the cost of paying him an enhanced pension.  Following an appeal from the former employee the case was heard by the Court of Appeal on 7 December 2011.

Watch this space for future developments…

There are a number of other proposed key employment law developments for which no fixed date has been set.  These include;

• On 14 December 2011, the Ministry of Justice launched a consultation on the proposal to charge fees for bringing a claim in the Employment Tribunal or EAT. Two fee structures have been proposed and the consultation will close on 6 March 2012.
• In November 2011 David Cameron confirmed that the Government will consult on the introduction of "protected conversations", to enable employers and employees to have a “frank conversation” at either’s request.
• A further consultation will be launched into the use of compromise agreements in order to consider whether the law should be amended so that all existing and future claims are covered.
• There have been calls for evidence over whether or not the law on TUPE and collective redundancy consultation should be amended to reduce the burden which is placed on businesses. 
• On 23 November 2011 Vince Cable advised that the Government would be looking at “radically slimming down the existing dismissals processes” which are considered too lengthy and unfair to both parties this will potentially result in changes to the Acas Code of Practice on Disciplinary and Grievance Procedures.
• The Government has also announced that it will consult on reforming the law on employment disputes and removing the third-party harassment provisions of the Equality Act 2010.