The New Year promises to be as eventful as ever in relation to employment law developments. Hot on the heels of the new TUPE Regulations coming into force this month, from April onwards we will see a raft of new measures coming into force over the course of the year. We are also anticipating some key decisions to be published by the appeal courts. Bevan Brittan's Head of Employment & Pensions, Julian Hoskins, takes you through the highlights of the year ahead.
31 January 2014
The new TUPE Regulations have been published in their final form and will be in force on 31 January 2014. The new regulations can be accessed here and labour under the less than snappy title: The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (we suspect they will become known simply as 'TUPE 2014'). BIS has also published guidance on the regulations, which can be accessed here. Our News Round-up this month focuses on the new regulations, so please click here for more information.
6 April 2014
- 'Discrimination questionnaires' will be abolished. This is the procedure whereby information regarding alleged discrimination can be requested from an employer, and an employment tribunal may draw adverse inferences from any failure to respond adequately. From 6 April, discrimination questionnaires will no longer be available for use by claimants; but note that adverse inferences may still be drawn from questionnaires issued before this date. Note also that this change only removes the procedural mechanism by which enquiries may be made regarding discrimination, not the ability to make enquiries generally. This month, Acas has published guidance on asking, and responding, to questions under the Equality Act 2010 (please see our Employment news round-up article for more details) .
- Mandatory pre-claim conciliation will be introduced. Regulations containing the details of this scheme have not yet been published but are expected by the end of this month. Under these arrangements, before lodging an employment tribunal claim, a claimant will be required to contact Acas, who will attempt to promote a settlement. The time limit for bringing a claim will be put on hold for a month while early conciliation is attempted – if the month expires before a settlement can be reached, then the Acas officer will issue a certificate to the claimant, who will then be allowed to proceed with their claim. Acas conciliation can continue after the issue of the certificate but the current wide-ranging role of Acas will be curtailed; it will be engaged only if either party requests Acas assistance or if the officer considers there are reasonable prospects of reaching a settlement.
- Financial penalties for employers who lose an employment tribunal claim will be introduced. The penalties will range from £100 - £5000, and will be reduced by 50% if paid within 21 days. At first glance this looks rather Draconian, but the good news for employers is that it will not be an automatic levy; it will be a discretionary power for Employment Judges and will only be used if the case has ‘aggravating factors’. It is not clear at the moment how 'aggravating factors' will be defined - possibly where there is evidence of malice or negligence by the employer – but we hope that some definitive guidance will be published before April.
Spring 2014 (date TBC)
- A new 'health and work assessment and advisory service' will be established. This will be a state-funded assessment service, provided by occupational health professionals for employees who are off sick for four weeks or more. The service will offer case management for employees with complex needs to facilitate their return to work.
- There will be a new universal right to right to request flexible working for all employees with over 26 weeks' service; the current requirement to be a parent or a carer will be removed. The statutory procedure for considering requests will no longer apply, but requests will need to be considered 'reasonably'. This was originally timetabled to come into force on 6 April 2014, but has now been delayed. The revised date has yet to be confirmed by BIS, but we understand that it will be as soon as possible this year. Guidance will be published by Acas on handling flexible working requests reasonably.
In the pipeline…
Shared Parental Leave
A new scheme of 'Shared Parental Leave' (SPL) is timetabled for
2015, and we expect that draft regulations will be published and
debated during 2014. We are also promised that guidance
will be available but this has not yet been published.
According to the consultation documents, the current entitlement to 52 weeks of maternity leave (39 weeks paid) will remain the default position for all employed women, as will the two-week period of compulsory maternity leave. However, if the parents wish to move on to the new scheme, qualifying parents will be able to share between them up to 50 weeks' of leave and 37 weeks of pay (that is, everything other than the compulsory maternity leave period). Leave can be taken at the same time, or at different times, and parents will be required to provide their employers with an indicative timetable of how they intend that the leave will be divided between them. Please click here for our summary of the SPL proposals.
Zero hours contracts
BIS is currently looking at the extent of the use and alleged abuse of zero-hours contracts. A consultation was launched on 19 December 2013 seeking evidence on the use of such contracts and views on possible options. The consultation identifies two main concerns posed by zero hours contracts: exclusivity clauses and a lack of transparency. Some solutions identified by the consultation include legislation to ban exclusivity clauses and creating government guidance or an employer-led code of practice on the use of exclusivity clauses and zero hours contracts generally. The consultation will close on 13 March 2014.
Acas Code and the right to accompaniment
Following the case of Toal and another v GB Oils Limited - in which it was held that the right to choose a companion was an absolute right and it is only the request for a companion that has to be reasonable - Acas have invited comments on revised paragraphs of the Acas Code, as well as on the question of what "making a reasonable request" might or might not involve. The consultation closed on 7 January 2014 and we expect publication of the revised Code shortly. Please see our October 2013 News Round-Up for a summary of the implications of the decision in Toal.
A 'Call for Evidence on Whistleblowing' closed in November 2013. The Government is looking at whether – following on from last year's changes – further changes to whistleblowing are necessary and whether the whistleblowing regime is working as intended.
Key cases on appeal - 2014
Redundancy collective consultation
- USDAW v Ethel Austin Ltd (the 'Woolworths' case) - the Employment Appeal Tribunal (EAT) ruled that the words "at one establishment" in TULRCA 1992 are to be disregarded for the purposes of any collective redundancy involving 20 or more employees. This case was heard on 22 January 2014 but has been stayed, pending a reference to the Court of Justice of the European Union (CJEU) on the meaning of 'establishment' for the purposes of collective consultation. Please see our update for more details of the EAT's decision. On a similar note, you may also want to look out for a decision on a Northern Irish employment tribunal's reference to the CJEU on the meaning of 'establishment' in equivalent Northern Irish legislation (Lytlle v Bluebird and others).
- We are also awaiting a decision from the Court of Appeal in the case of United States of America v Nolan which will determine when an employer must begin collective redundancy consultation (please click here to read our article on the background to this case).
The Judicial Review of fees for use of the Employment Tribunal and Employment Appeal Tribunal was heard in November 2013 and we expect a decision to be made early this year.
- Neal v Freightliner Limited: an employment tribunal held that a freight worker was entitled to have overtime payments and shift premiums included in the calculation of his holiday pay as they were intrinsically linked to the performance of the tasks he was required to carry out under his employment contract. There will be an appeal to the EAT this year.
- Lock v British Gas Trading Limited: the Court of Justice of the European Union will be making a decision this year following the Advocate General's view that, where the pay received by a worker comprises both basic pay and commission calculated by reference to the sales that the worker gets from his or her own work, such commission should be included in the calculation of holiday pay.
- Wood v Hertel UK Limited: an employment tribunal is due to consider the correct treatment of overtime for the purposes of calculating holiday pay. This case is timetabled to commence on 3 February 2014.
Post termination victimisation
Rowstock v Jessemey: the EAT had held that the Equality Act 2010 does not provide protection against post-employment victimisation. The Court of Appeal finished hearing this case on 7 November 2013 and we await a decision.
TUPE & post-transfer harmonisation
Manchester College v Hazel: the EAT had held that two employees, who were dismissed for failing to agree to new terms (including a pay cut) following a TUPE transfer, were unfairly dismissed. Although the reason for the dismissals was an economic, technical or organisational reason, it did not entail changes in the workforce. The Court of Appeal finished hearing this case on 5 December 2013 and we await a decision.
Gallop v Newport City Council: the Court of
Appeal has considered if an employer’s lack of knowledge of a
disability prevents the duty to make reasonable adjustments arising
where the employer relied on advice from an occupational health
adviser that an employee was not disabled for discrimination
purposes. Judgment is awaited.
Recruitment and blanket disclosures
R (T and others) v Chief Constable of Greater Manchester and others: the Supreme Court finished hearing this case on 10 December 2013. This was an appeal from a decision of the Court of Appeal which said that the blanket disclosure of all convictions and cautions currently required by the statutory scheme for checking criminal records may unjustifiably interfere with an individual's right to respect for private life under Article 8 of the European Convention on Human Rights. Judgment is awaited.
Z v A Govt Department and CD v ST: the Court of Justice of the European Union is looking at these two separate questions on whether or not maternity leave may be taken by a woman having a baby via a surrogate arrangement / the extent to which discrimination law extends to associative pregnancy discrimination.
Finally, we understand that there is likely to be an appeal
against the EAT's decision in Mba v London Borough of
Merton, on the question of whether a failure to allow a
Christian employee to work on Sundays amounted to religious
discrimination. Please click here for a summary of the EAT's