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.
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.
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.
- 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
- 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.
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
- 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
- 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.
- 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
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
- 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
- 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