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Employment law changes – mid-year review

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Now we are over half way through the year and there are less than 162 days (as at 16 July 2014) until Christmas, it is an opportune moment to catch our breath and have a quick look forward to see what further employment law changes we anticipate over the next few months.

So far in 2014….

We again have had a pretty busy year this year with a number of employment law changes including the following:

  • Mandatory Acas Pre-Claim Conciliation, which kicked in on 06 May 2014.  This has taken a bit of getting used to but in our view has had little impact on employers.  It may on occasion encourage a commercial decision to be made at an early stage as you will be notified of a potential claim before the deaded ET1 lands on your desk!
  • Employment status.  We have had a few cases that have come through over the last few months tightening up the definition of a “worker”.  Watch this space for more clarification on workers…
  • National minimum wage and “sleep ins”.   A recent case has changed the landscape for many employers who pay staff to “sleep in”.  This case has said that any time spent by a worker where they are required to be in attendance at the company’s premises, is all working time, even if the worker is asleep.  The rule of thumb after this case seems to be that if the employee would be disciplined for leaving the place of work then this is working time and they should receive national minimum wage for the whole period.  It is also worth bearing in mind that a worker who is “working” will need to be given appropriate rest breaks.
  • TUPE changes.  There have also been some changes to TUPE.  From 31 January 2014 the following have applied:
  1.  The rules on service provision changes remained with just the addition that the activities carried on after the change in service provision must be “fundamentally or essentially the same” as those carried on before it.
  2.  Incoming employers are able to change terms derived from collective agreements one year after the transfer, provided that the overall change is no less favourable to the employee.
  3. Changes in the location of the workforce following a transfer have been expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason).  This means that genuine place of work redundancies won’t be automatically unfair.
  4. Consultation which begins before the transfer can count for the purposes of complying with the collective redundancy rules.  The only caveat is that the outgoing and incoming employers must agree to this.

A further change that followed was that employers who are transferring out must now provide employee liability information 28 days before the transfer, rather than 14 days.  This came into effect for those transfers occurring on or after 01 May 2014.

  • Discrimination questionnaireshave been abolished.  No further explanation needed here!
  • Aggravated claims.  The Employment Tribunal now has the power to impose a financial penalty if the employer has breached employment rights where one or more aggravating features exist.   This is a minimum of £100 and a maximum of £5,000 and would be payable to the Secretary of State but can be reduced by 50% if paid within 21 days.
  • Extended flexible working.  From 30 June 2014 any employee with 26 weeks service can request flexible working, they need not have caring responsibilities.  The prescriptive statutory procedure has also been removed and replaced with the obligation to deal with things “reasonably”.

So, as usual there has been quite a bit of employment law change already this year, but what is on the horizon for employers to get to grips with?

Further changes to look out for in 2014 and beyond….

We are forever hopeful that things may start to slow down on the legislation front for businesses grappling with HR and employment law changes.  This hope may be realised at the back end of this year, as there isn’t much on the agenda and, what there is, is relatively employer friendly:

  • National minimum wage increase.  This happens on 1 October each year and this year the standard adult rate is increasing by 3% to £6.50 per hour.
  • Equal pay audits.  If you are unsuccessful in defending a claim of equal pay, the tribunal will have the power to order that your organisation undertake a full equal pay audit of all your staff.  This is expected later this year but initially small businesses with 10 or fewer employees will be exempt.
  • Sickness absence managementis a problem for lots of employers.  In particular businesses may struggle to have the tools required in order to manage sickness absence in their employee son a practical level.  The Government is expected to provide a state funded health and work assessment and advisory service.  This will be for employers who have employees who have been signed off for absent for sick leave for four or more weeks.  Employers will be able to access a state funded assessment by an occupational professional. The service will also provide case management to employers regarding employees who have complex needs to facilitate their return to the workplace.  This is still currently being piloted with no fixed date for implementation just yet.
  • Caste discriminationis likely to be made unlawful towards the back end of this year.  It will form part of race discrimination.Moving on to 2015…..

From the employment law changes that we are aware of already that will be introduced next year, it seems to be a very “family friendly” year.

  • Extending parental leave.  In March 2013 parental leave was extended from 13 weeks to 18 weeks unpaid leave for children under 5 years, or 18 years if they had a disability.  At some point next year the government will further extend this right to all children under the age of 18, not just those with a disability.  This leave remains unpaid.
  • Flexible parental leave.  The Government are allowing further flexibility for parents of children born on or after 05 April 2015.  Basically their parents will be able to choose how they split their maternity/paternity leave, under the bracket of parental leave.  The child’s mother will still have to take the first 2 weeks of compulsory maternity leave straight after the birth, but after that parents are free to choose how they split the rest of the leave.  In addition, it is likely that the partner of the pregnant woman will also be allowed to take unpaid time off to attend ante-natal appointments (up to a maximum of 6½ hours for each appointment).
  • Surrogate parents eligible for adoption leave.  Surrogate parents will  permitted to take ordinary paternity leave and pay, adoption leave and pay and shared parental leave and pay. Both parents will also be able to take unpaid time off to attend 2 antenatal appointments with the woman carrying the child.

And finally the question that it seems may never be answered……

Holidays….we still await clarification from the Government on the currently complex position in relation to holidays, although check out our free holiday guide to give you a practical guide on how to deal with holidays currently.  We will keep you posted if we do get any further guidance on this illusive subject!

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