Employment news round-up, February 2015

This month's selection of key employment law news is brought to you by Alec Bennett and covers: the latest developments on the 'Woolworths' decision on redundancy consultation; whistleblowing; Care Certificates and 'dates for your diary' – forthcoming changes on the horizon, this Spring. 

Advocate-General's Opinion – 'Woolworth's' decision

The Advocate-General to the European Court of Justice has published his Opinion on the collective redundancy consultation cases, USDAW and another v WW Realisation 1 Ltd and others – commonly known as the 'Woolworths' cases.  As you will no doubt remember, these cases related to the Employment Appeal Tribunal's decision, back in July 2013, that an 'establishment' for the purposes of the duty to collectively consult means the whole organisation, rather the local units in which employees at risk of redundancy are employed – thereby dramatically increasing the scope for collective consultation obligations to bite.  Please click here to read our summary of the decision, which is currently under appeal to the Court of Appeal. The Court of Appeal has asked the European Court of Justice (ECJ) to provide guidance on the correct approach and the Advocate-General's Opinion is that the meaning of 'establishment' for the purposes of collective redundancy requirements is the local employment unit to which the workers made redundant are assigned to carry out their duties.  That said, the Advocate-General noted that it is for national courts to determine what might amount to a 'local unit' and that could include a number of local units - for example, several different shops within the same shopping complex.  However, the general direction of the Advocate-General's Opinion is positive for employers, and it is hoped that the ECJ will follow the Advocate-General's Opinion (although it is not obliged to do so).  The ECJ's final decision in this matter is expected later this year and it remains to be seen whether the ECJ will follow the Advocate General's Opinion. In the meantime, it would be advisable for employers to continue to take a cautious approach and aggregate the numbers of redundant employees across different locations when determining whether collective redundancy obligations are triggered.  

Whistleblowing news

February has been a big month for whistleblowing, particularly in relation to the NHS.  On 11 February 2015, the Department of Health published a new report, Culture Change in the NHS, discussing progress in the NHS since the Francis Report. The report also sets out new measures that the government states will further improve the culture of the NHS, including the following.

• A consultation on financial sanctions for NHS bodies who do not comply with the Duty of Candour.
• A consultation on updating the NHS Constitution to enshrine patients' rights.
• A new complaints guide to help patients raise concerns about care.

Sir Robert Francis has also published his review into whistleblowing in the NHS, and the government's initial response has been to accept, in principle, all of the report's recommendations. For a full summary of Sir Robert Francis' 'Freedom to Speak Up' review and its practical impact (within the health sector and beyond), please see our briefing, but some of the key recommendations are

• proposed new legislation to protect whistleblowers who are applying for NHS jobs from discrimination by prospective employers
• freedom to speak up 'guardians'
• extending the scope of whistleblowing legislation within the healthcare sector, so that job-seekers and students are covered.

The government intends to consult on implementing the recommendations shortly.
Finally, earlier this week, the House of Commons published a briefing note on whistleblowing. The note can be found here and provides a brief account of recent whistleblowing changes, summarises the statutory protections for staff and provides guidance on where wider disclosure of concerns may be appropriate, including raising concerns with the Care Quality Commission. The Financial Conduct Authority has also published a note on how it handles disclosures from whistleblowers.

Care certificate launch

As a result of failures identified in the Francis Report, the government commissioned the Cavendish Review into healthcare assistants and support workers in the NHS and other healthcare settings.  One of the findings of the report was that there were inconsistencies in the extent to which healthcare assistants and support workers were prepared for their roles and the Review recommended the creation of a fundamental certificate of care.  The new 'Care Certificate' will be introduced next March and will apply to all applicable new starters in health and social care support from next April.  NHS Employers has published new guidance to support the introduction of the Care Certificate.  

Spring forward

There are a number of changes coming into effect this Spring.  Here are some dates for your diaries…

10 March 2015

• We understand that section 56 of the Data Protection Act 1998 will come into force on this date. This will make it illegal for an employer to require job applicants to obtain a copy of their criminal record by means of a data subject access request, under section 7 of the Data Protection Act.  Obtaining criminal records checks via this route is already contrary to the Information Commissioner's Employment Practices Code and generally considered bad practice, but it will not be formally illegal until next month. 

5 April 2015

• New system of shared parental leave will be available to parents of children due to be born or placed for adoption with them on or after 5 April 2015.  Please see our 'sharing and caring' article for a summary of the scheme.  The Acas guidance is available here and the BIS technical guidance is available here. We have been advising clients on the drafting and review of their Shared Parental Leave policies and procedures and standard documentation – so please do get in touch if you have not yet finalised your documentation.
• Removal of the requirement for 26 weeks' service before employees become entitled to adoption leave, and the introduction of a new right for both single and joint adopters to attend adoption appointments together.
• Unpaid parental leave scheme extended so that it is available to parents of children aged between five and eighteen (the scheme is currently only available for parents of children aged up to five / parents of disabled children up to age eighteen).
• Extension of current rights to adoption leave to individuals fostering a child under the "Fostering for Adoption" scheme run by local authorities. Regulations will also come into force which aim to include couples who are adopting a child from outside the UK in the right to shared parental leave and pay.

6 April 2015

• This year's annual increases in compensation limits will take effect where the 'appropriate date' for the cause of action (e.g. the date of termination in an unfair dismissal claim) is on or after 6 April 2015.  The maximum compensatory award for unfair dismissal will rise from £76,574 to £78,335 (or one year's pay, if that lower). The maximum amount of a 'week's pay', used to calculate statutory redundancy payments and various awards including the basic and additional awards for unfair dismissal, also rises from £464 to £475.
• Removal of employment tribunals' power to make 'wider recommendations'. Currently, a tribunal can (in addition to awarding compensation) make recommendations as to what steps an unsuccessful respondent to a discrimination claim should take to reduce the adverse effect of discrimination on the claimant or any other person. It is thought that this power adds little to tribunals' powers and results in minimal benefit for the claimant or the wider workforce. 
• The amended record-keeping, returns and penalties provisions under the Finance Bill 2014 intended to combat false self-employment through service companies will apply from 6 April 2015 (with the first return due by 5 August 2015).

Forthcoming training

We will be offering a series of free interactive workshops on managing difficult grievances, taking place at our offices on 29 April (Bristol), 13 May (London) and 14 May (Birmingham), during the morning.  Further details and booking arrangements will be available on the events section of our website and emailed to Employment Eye subscribers shortly.