The 2013 employment law agendaStuart Chamberlain

Topics

Government programme of reforms to employment law 2012-2015

Selected case law

GOVERNMENT REFORMS TO EMPLOYMENT LAW 2012-2015

First, a Health Warning!

Some of the dates of implementation keep changing!

On 14 March 2013 BIS published “Employment Law 2013: Progress on Reform

Coalition Government’s employment law policy – a reminder

Employment Law Review throughout the life of government

Remove regulatory burdens – The Red Tape Challenge – A “light touch”

Employment Law is “costly, time-consuming and overly bureaucratic”

Remove barriers to “flexible, effective and fair” labour market

Aim to support employers, individuals and their families

Better information & guidance (e.g. the Employer’s Charter)

Whole series of Consultations and “Calls for Evidence”

Encourage parties to settle rather than go to ET - & save money!

In 2012

Maximum award for unfair dismissal is £74,200 (Feb 2012)

Change in qualifying period for claiming unfair dismissal increased from one to two years on 6 April 2012

Auto Enrolment for pensions (ongoing)

CRB becomes Disclosure & Barring Service (DBS) (Dec 2012) – but problems with IT!

April 2013

Consolidation of NMW Regulations

Consultation period for collective redundancies involving 100 or more employees reduced from 90 days to 45 days – with ACAS guide

Employees whose fixed-term contracts due to expire excluded from collective consultation requirements

Consultation on the recruitment sector

Summer 2013

Introduction of Settlement Agreements: details of pre-termination negotiations will be inadmissible at ET – except where “improper behaviour” – with Code of Practice & guidance and letters & templates for employers – see next slide

[Government has dropped “Protected conversations”?]

12 months’ pay cap on compensation award for unfair dismissal – what it means

Revised ET rules/procedure – mostly accepted Underhill Report recommendations

Settlement Agreements(SAs)

Change of name – Why? - new s.111A of the ERA 1996 – replace CAs

SAs are legally binding contracts which can be used to end employment relationship on agreed terms. Individual waives rights to make claim to court/tribunal on matters specifically covered in the agreement

It’s all about “confidentiality” – specific focus of ACAS draft Code of Practice

The current situation – “without prejudice” discussions etc. – must relate to existing dispute between parties – these can still run alongside SA procedure

Settlement Agreements cont.

Voluntary - If SA cannot be agreed dispute can go to ET

7 (?) days to consider offer

Void if “improper behaviour” – examples in draft ACAS Code

Right of accompaniment?

Non-binding model letters for employers and template agreement

Still consulting on “good practice”

Implications?

Summer 2013 continued

Changes to whistle blowing rules: breach of employment contract no longer protected disclosure; “good faith”; and employer’s liability & defence

New tribunal fees regime – 2-stage fee structure: “issue” fee and “hearing” fee – Implications?

Review of Agency Workers paperwork

Portable online DBS checks

Autumn 2013

Proposed changes to TUPE 2006 (“gold plating of EU law”)—Repeal of SPC – but likely to be 3-5 years’ lead-in time?

—ELI and other changes

—Implications & potential problems?

Call for Evidence on PIDA 1998

Interactive guide on discipline

Spring 2014

Right of flexible working extended to all employees with 26 weeks’ service

New Assessment Service for employees absent for 4 weeks due to sickness & revision of “Fit-Note”

Mandatory ACAS pre-claim conciliation: if no agreement ACAS will issue certificate & if no certificate, no ET – and a POTENTIAL NIGHTMARE!

Financial penalties in ET for employers (£5000)

Evaluation of Workplace Mediation Services

2015

Flexible/ Shared Parental Leave – potential problems?

Which leaves?

• Amendments to Working Time Regs. re. annual leave & sickness

• Updating of ACAS Code of Practice on Disciplinary and Grievance Procedures.

No qualifying period for unfair dismissal when reason for dismissal is or is related to employee’s political opinion or affiliation (Redfearn v UK) – but to come into effect 12 months after E&RR Bill receives Royal Assent

SELECTED CASE LAW

Case law 1- Religious discrimination

Religious discrimination – Eweida & others v UK (ECtHR)

o Any manifestation of religious belief in workplace should be protected, provided close link between the manifestation and the belief

o Interference with this right can be justified but the employee’s rights must be balanced against those of the employer

Eweida continued

o BA’s corporate aims breached Ms E’s desire to manifest her religion (Article 9)– UK had breached its “positive obligation “ to protect this right. The other applicants lost – employers able to justify their refusal to accommodate their manifestations of belief

o The EHRC has produced guidance on religion & belief in the workplace

o Implications?

Case law 2 – Annual Leave

Long-term sickness & annual leave: LHS Leeds v Larner

o A reminder of the CJEU cases

o Claimant, unable to take leave because she was sick, entitled to carry her untaken leave forward to next leave year without making a prior request to do so

o On termination she was entitled to payment for paid annual leave she had been prevented from taking

o And how long the carry over?

Case law 3 – Social Media

Unlawful disciplining, demotion & dismissal: Smith v Trafford Housing Trust

In Facebook Mr S, a practising Christian, described proposals for same–sex marriage as an “equality too far”

Dismissed for gross misconduct – contravened equal opportunities policy

Too late to bring claim for unfair dismissal

Awarded damages' (£100) for wages in notice period

Case 4: Disciplinary warnings

Warnings – Wincanton Group plc v Stone

Q.s: To what extent can earlier warnings be relied upon in disciplinary hearings? And must earlier warnings be about similar misconduct?

EAT says “Yes” to both and provides following guidance:o In deciding sanction, employer should take into account

factual circumstances of any earlier warning

o Always take into account how other employees treated (consistency is important)

o A final warning normally means that any further misconduct (of whatever nature) may result in further disciplinary action (dismissal)

Case law 5: Volunteers

Volunteers not covered by discrimination law – X v Mid Sussex

CAB

No contract, no claim under the EqA (then the DDA) or Directive

Volunteer will not be employee unless…!?

And interns?

Finally, ET rejected claims in Quick v Cornwall Council that conversations about the employee’s potential retirement constituted unfair dismissal and age discrimination

Questions?