Upcoming changes to Employment Law 2014-2015
With a raft of changes to employment law coming up, here’s a review of the important dates to be aware of. Any other dates will be added to this calendar as the year progresses
|1st December 2014|
|Shared Parental Leave For parents of children born or matched for adoption on or after 5 April 2015 Under this new system parents will be able to choose how they share the care of their child during the first year after birth. Mothers will still take at least the initial two week following the birth, following that they can choose to end the maternity leave and the parents can opt to share the remaining leave as flexible parental leave. Also under this new shared parental leave it is proposed to allow the husband, civil partner or partner of the pregnant women the right to unpaid time off to attend up to 2 antenatal appointments.|
|Managing sickness absence|
A health and work assessment and advisory service is to be introduced, offering fee occupational health assistance for employees, employers and GPs. The service can provide an occupational health assessment after four weeks of sickness absence. Further information is available from GOV.UK – Government response to the review of the sickness absence system in Great Britain.
|Surrogate parents eligible for adoption leave|
Provided they meet the eligibility criteria parents who have a child through surrogacy will be permitted to take ordinary paternity leave and pay, adoption leave and pay and shared parental leave and pay. Both parents will also be entitled to take unpaid time off to attend two antenatal appointments with the woman carrying the child.
|5th April 2015|
|Statutory adoption leave and pay|
The statutory adoption leave will no longer have the 26 week qualifying period, and adoption pay will be brought in line with maternity pay, which will be 90% of normal earning for the first six weeks.
|Parental Leave extended to 18|
The right to unpaid parental leave will be extended to parents of any child under the age of 18 years.
|After 1st July 2015|
|After 1 July 2015 there will be a two year cap on the period over which a worker can claim a series of unlawful deductions where they relate to any fee, bonus, commission or holiday pay.|
|To be confirmed|
|Exemption for Reservists from two year qualifying period for unfair dismissal|
Employees who are reservists will be exempted from the two year qualifying period for bring an unfair dismissal claim where the reason for dismissal is the employee’s reservists service.
Higher cost of holiday pay for employers
Non-guaranteed overtime must be included in the calculation of holiday pay. An Employment Appeal Tribunal judgment has potentially major implications for employers in respect of both employees and workers by clarifying that:
- the Working Time Directive (WTD) requires non-guaranteed overtime, ie overtime that the employer is not obliged to provide but which, if the employer offers it, the employee is contractually obliged to perform, to be included in the calculation of holiday pay
- the Working Time Regulations 1998 (WTR 1998) can and should be interpreted to allow the inclusion of this overtime pay to be included in respect of a worker’s entitlement to the four weeks’ paid holiday (which derives from the WTD) but not in respect of the additional 1.6 weeks’ paid annual leave provided for only in domestic legislation
- a worker will not be able to bring a claim that an underpayment is part of a ‘series of deductions’ (ie to fall within the more generous time limit provisions for an unlawful deduction from wages claim) where there is a gap between deductions of more than three months — this aspect of the judgment perhaps has the greatest impact as it is likely to significantly limit the extent to which workers can make retrospective claims for any underpaid element of holiday pay (or indeed for unlawful deductions of other types)
Flexible Working Regulations 2014
The Flexible Working Regulations 2014 were laid before parliament on Wednesday and come into force on 30th June.
They extend the right to make a request for flexible working to any employee who has been employed for 26 weeks (not just parents of children under 17, or 18 if disabled, and certain carers – as was previously the case). The basic right to request is unchanged. Employees can make up to one written request every year, the employer needs to deal with it within three months, and can refuse on any of eight (very wide) business grounds. A tribunal cannot normally investigate the rights and wrongs of the refusal, only whether the procedure has been properly followed. Maximum compensation for a failure to comply is eight weeks’ pay (currently capped at £464 per week).
If the Flexible Working Regulations affect your business, or if we can be of any assistance with other employment law matters, please do get in touch.
Update: Tribunal award increase
From 6th April 2014 the maximum compensatory award given by an Employment Tribunal will be increased from £74,200 to £76,574 subject to the limit of one year’s pay if this is a lesser amount. It also increases the maximum for a ‘week’s pay’ in assessing a basic award and a statutory redundancy payment from £450 to £464.
July 29th 2013 Changes to employment law
As of today (July 29th 2013) the following changes to UK employment law apply:
- Compromise agreements are to be known as Settlement Agreements.
- Tribunal fees are payable from today unless you are eligible to a fee remission.
Employment Tribunal Fees
From 29 July anyone wishing to make a claim in the Employment Tribunal or lodging an appeal in the EAT will need to pay a fee, unless they are able to obtain an exemption.
Disclosure and Barring Service (DBS)
On 1 December 2012, the Criminal Records Bureau (CRB) and Independent Safeguarding Authority (ISA) merged to form the Disclosure and Barring Service (DBS).
The following changes to terminology have resulted:
- A standard CRB check has become a standard DBS check.
- An enhanced CRB check has become an enhanced DBS check.
- An enhanced CRB check with Barred List check has become an enhanced check for regulated activity.
Key dates relevant to the operation of the new service include:
- Since 28 March 2013, only DBS application forms have been processed.
- Since 1 December 2012, DBS certificates have been issued for all completed criminal record checks. However, CRB certificates that had already been issued remain valid.
DBS has announced that the new “Update Service” will be launched this summer. This new service will enable individuals to register once for a DBS check which will then be automatically updated and available for organisations to check.
HARASSMENT: AN EMPLOYER’S OBLIGATIONS
There has been much news publicity recently surrounding harassment, particularly on the grounds of disability and sex. According to Macmillan Cancer Support there has been an increased number of employees with cancer feeling discriminated when they return to work.
This is supported by a YouGov survey that shows 37% of employees experience discrimination at work after they have had cancer, with 9% leaving and 13% claiming their employer had failed to make reasonable adjustments. As cancer is classed as a disability, companies need to ensure that they act legally when dealing with such employees.
Also sharing the headlines have been claims of sexual harassment, often with such conduct being ignored by companies and other work colleagues. An employer will often be held responsible for the discriminatory actions of its employees and may also be responsible for discrimination by external bodies such as recruitment agencies if they are acting with the employer’s authority. It is therefore important for an employer to investigate any such allegations that arise and if necessary take the appropriate remedial action.
What is harassment?
Harassment involves unwanted conduct that has the purpose or effect of violating a person’s dignity or creating an offensive, intimidating or hostile environment. It is discriminatory if it is related to the following protected characteristics:
- Race (including ethnic or national origin, nationality and colour).
Why is it important for employers to know about discrimination law?
Discrimination is governed by the Equality Act 2010; its’ purpose is to ensure equality of opportunity at work, to protect employees’ dignity and to ensure that complaints can be raised without fear of reprisal.
Damaging publicity and loss of staff morale
Allegations of discrimination or harassment are likely to create bad publicity for an employer; an Employment Tribunal hearing is held in public, often with the press in attendance in the hope of gathering an interesting news story for publication in local, or even national, media. It is wiser to prevent a claim than to have to manage the consequential fallout after a claim has been made. Discrimination and harassment issues can be highly emotive, and the process may have a negative impact on employee morale.
High compensation payments and expensive litigation
There is no limit to the amount of compensation that an employee can be awarded by an Employment Tribunal in a successful discrimination case. A company also has to factor in the significant management time involved and legal costs, which are usually not recoverable in an Employment Tribunal.
Practical steps employers can take to reduce the risk of an Employment Tribunal claim:
- Provide staff with employment handbooks, including policies on equal opportunities and harassment, setting out what constitutes acceptable behaviour and what does not.
- Set up clear procedures for staff to raise concerns and complaints, and for dealing with complaints. Ensure discriminatory behaviour by staff is not tolerated and is dealt with through proper disciplinary measures.
- Review employment contracts, policies and employee share schemes to ensure they comply with the law.
- Make reasonable adjustments where this will alleviate difficulties suffered by a disabled employee in the workplace.
- Accommodate workers’ different cultures and religious beliefs, if possible.
- Try to accommodate requests for family-friendly hours by employees with childcare or other family commitments, unless refusal is justified.
- Carry out equal opportunities monitoring but do not use the forms as part of recruitment or other decision-making. Data from the forms should be aggregated and anonymised.
Employee shareholders rejected
The House of Lords has again voted to reject the proposed Employee Shareholder status set out in the Growth and Infrastructure Bill.
The government is determined to press ahead with this scheme and has published some concessions in the hope that the House of Lords will agree; these are:
- a provision that the employee cannot accept the offer within seven days of it being made;
- a written statement setting out the rights that the employee is giving up; and
- a written statement setting out the details of the shares being offered (including whether they are voting or non-voting shares, whether they carry a dividend, and whether they carry a right to a share in the company’s assets if it is wound-up and whether pre-emption rights are excluded).
The government had made some earlier concessions to the original proposals:-
- a jobseeker who refuses a job on an employee shareholder basis will not automatically forfeit their unemployment benefits; and
- the first £2,000 of shares given to the employee will not attract income tax.
2013 The road ahead
The government has published Employment law 2013: progress on reform, detailing the progress on employment law reform to date and outlining a timetable of future changes. The key measures and expected implementation dates are set out below.
Collective redundancy consultation
The 90 day consultation requirement for redundancies involving 100 or more employees is to be reduced to 45 days in April 2013.
Consolidation of national minimum wage (NMW)
The government will be simplifying the NMW rules and intends to produce a single set of consolidated NMW regulations by April 2013, merging the current 17 sets of regulations.
Compensatory award cap
The unfair dismissal compensatory award will be capped at the lower of one year’s pay and the existing limit. The calculation of a year’s pay for these purposes will be based on the statutory definition of “a week’s pay” contained in the Employment Rights Act 1996.
Enabling the increased use of settlement agreements as a mutually beneficial way of ending the employment relationship.
The government intends to amend the ERA 1996 so that workers cannot bring a whistleblowing case relating to a breach of their own contract that is not in the public interest.
New employment tribunal fees
Submitting a claim to a tribunal or an appeal to the EAT will be subject to an initial issue fee, followed by a subsequent hearing fee.
Portable Disclosure and Barring Service (DBS) checks
A portable Disclosure and Barring Service (DBS) check which employers can view instantly online will be available. This will allow individuals to move roles without needing a new DBS check each time.
The new employee shareholder status will be implemented in Autumn 2013 rather than April 2013 as previously expected. Under the proposals, employees will be able to obtain shares in their employer in return for giving up some of their employment rights. The first £50,000 worth of shares (valued at acquisition) will be free from capital gains tax on disposal.
Reform of TUPE 2006
In January 2013, the government issued a consultation on proposed changes to TUPE 2006. The changes are expected to be implemented from October 2013.
Right to request flexible working
Part 8 of the Children and Families Bill amends the ERA 1996 to extend flexible working rights to all employees with 26 weeks’ service, rather than just those employees who qualify as parents or carers.
Acas early conciliation
On 17 January 2013, the government launched a consultation on how it proposes Acas will deal with requests for “early conciliation” from prospective claimants who will have to make such a request before they can issue certain proceedings in the employment tribunal. The government has not yet published its response to the consultation but is aiming for implementation by early 2014.
Employment tribunal penalties for losing respondents
Following the Resolving Workplace Disputes consultation the government announced it would introduce financial penalties for unsuccessful respondents, although it would not be an automatic levy.
Quick reference table of Government Employment Law Changes
|Delivered to date|
|2 Year Unfair Dismissal Qualifying period|
|Removed default retirement age|
|Better immigration checks|
|Published Tribunal Award information|
|Consolidation of NMW Regulations|
|Change to collective redundancy|
|Acas guide on collective redundancy|
|Consultation on the recruitment sector|
|Making settlement agreements easier|
|12 months’ pay cap on unfair dismissal compensatory awards|
|Revised Employment Tribunal rules|
|Whistleblowing rule improvements|
|New tribunal fees|
|Agency workers – paperwork review|
|Portable online DBS(previously CRB) checks|
|New employee shareholder employment status|
|TUPE Regulation reforms|
|Call for evidence on Public Interest Disclosure Act|
|Better online tool – employing staff for the first time|
|Interactive guidance on discipline|
|Right to request flexible working for all employees|
|Acas Early Conciliation introduced|
|New approach to sickness absence management|
|Introduction of Employment Tribunal penalties|
|Evaluation for Workplace Mediation Services|
|Introduction of Shared Parental Leave|
|Implementation of Posting of Workers Enforcement Directive|