Employment law changes – mid-2014 review
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.
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:
- 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.
- 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.
- 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.
- The 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 questionnaires have 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”.
As we are now well into the New Year and the festive period seems like a distant memory we are all looking forward to the year ahead…. There are going to be some big changes in employment law in 2014 and it’s important you know about them so you don’t end up with tribunal claims against you.
On the flip side, you’ll really want to know about some of the changes as they should actually help you run your business more effectively and some of the changes may even be employer-friendly.
The key proposals for this year include:
Changes to TUPE
Changes to the Transfer of Undertakings (Protection of Employment) Regulations, otherwise known as TUPE, are expected to come into force on 31 January 2014.
These changes include:
- The rules on service provision changes will remain but for there to be a TUPE service provision change, the activities carried on after the change in service provision must be “fundamentally or essentially the same” as those carried on before it.
- You will still have to provide employee liability information and this will have to be provided 28 days before the transfer, rather than the current 14 days.
- Employers will be 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.
- Changes in location will be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason). This means that when there is genuine place of work redundancies, they will not be automatically unfair.
- The consultation which begins before the transfer can count for the purposes of complying with the collective redundancy rules, provided that it is agreed that meaningful consultation has been carried out.
- Micro-businesses will be allowed to inform and consult affected employees directly when there is no recognised independent union, nor any existing appropriate representatives.
- The existing government guidance on TUPE will be improved.
Flint Bishop clients can find more details about the existing TUPE regime by logging on to the document bank.
Early conciliation to try to avoid tribunal claims
From April, any employee that wants to lodge a claim at the Tribunal must first notify Acas, which will offer conciliation.
If the conciliation process does not resolve the employee’s issue within the prescribed period they can then go on and lodge a tribunal claim. However, there must be a period of pre-claim conciliation before any claim is submitted.
By notifying Acas of their intention to claim the employee will essentially halt the 3-month deadline in order to bring a claim at the Tribunal. This is likely to delay the process, meaning that employers may be faced with claims later than 3 months after the alleged incidents.
Changes to the right to request flexible working
At some point this spring, the Government is expected to extend the right to request flexible working to all employees, rather than only those with caring responsibilities.
It will also remove the current statutory procedure for considering requests. Instead, employers will have to consider all requests in a reasonable manner.
You will still have the right to refuse a request on business grounds and it will remain good practice to follow the current procedure.
Flint Bishop clients can find more details about the existing flexible working request regime by logging on to the document bank.
Introduction of the Health and Work Assessment Advisory Service to help manage sickness absence
It is expected this service will launch in the spring. It will provide free occupational health assistance for employers and can provide an occupational health assessment after four weeks of sickness absence.
Increasing the flexibility of parental leave
Possibly not coming into effect until 2015, there are nonetheless important changes ahead regarding parental leave. These include:
- the ability for parents to choose how they share the care of their child during the first year after birth,
- giving parents of any child under the age of 18 years the right to unpaid parental leave; and
- the right for eligible parents who have a child through surrogacy to take ordinary paternity leave and pay, adoption leave and pay and shared parental leave and pay.
Flint Bishop clients can find more details about the existing maternity, paternity and parental leave regime by logging on to the document bank.
So as you will see from the above it will be another active year in employment law. As always, we will keep you up to date with any key changes in employment law as and when they come into force. In the meantime, if you need further advice on these changes or any other element of employment law, please do not hesitate to contact the team.