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Employment law changes: End of term report 2014

As we are fast approaching the end of another academic year it seems to be an opportune moment to review the HR and employment law changes of the past year and to look forward to what we can expect for the new term.

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

Mandatory Acas Pre-Claim Conciliation

Mandatory Acas Pre-Claim Conciliation effective from 6 May 2014.  This has taken a bit of getting used to but seems to have had little impact on schools so far. However, the introduction of a pre-conciliation stage before an ET1 is issued may just encourage schools, in appropriate circumstances, to reach a settlement of a tribunal claim at an early stage and save the time and expense of defending a claim.

National minimum wage and “sleep-ins”

A recent case has changed the landscape for many employers who pay staff to “sleep in”. That was where employees received a “sleep in” allowance of, say £30 per night, but in the event that they were woken up to work, they would receive a national minimum wage for any work done. This recent case established that any time spent by a worker where they are required to be in attendance at the organisation’s premises, would be considered to be working time, even if the employee 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 would likely be considered to be working time for which they should receive at least national minimum wage.

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 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 will not 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 1 May 2014.

Discrimination questionnaires have been abolished.

This has surely been a welcome development for employers.

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 requests “reasonably”.

So, as usual, there has been quite a bit of change this year, but what is on the horizon for next term for schools to get to grips with?

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

Some of the planned changes that we know about so far include:

The national minimum wage increase

This happens on 1 October each year and this coming year the standard adult rate will increase 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 organisations with 10 or fewer employees will be exempt.

Sickness absence management

This is a problem for lots of employers. In particular, schools may not have the tools required to manage sickness absence among staff on 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 that have been signed off on 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 currently being piloted with no fixed date for implementation just yet.

Caste discrimination

This is likely to be made unlawful towards the end of next term. It will form part of race discrimination.

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 will remain unpaid.

Flexible parental leave

The Government plan to allow further flexibility for parents of children born on or after 5 April 2015. These parents will be able to choose how they split their maternity/paternity leave, under the bracket of parental leave. Mums will still have to take the first 2 weeks of compulsory maternity leave straight after the birth, but after that parents will be free to choose how they split the rest of the leave. In addition, it is likely that the partner of a 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 be 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. This is especially a problem when dealing with employees that are not able to take holidays due to illness and those whose employment terminates part way through a leave year. We will keep you posted if we ever do get any further guidance on this subject.

As always, if you are concerned about what employment law changes mean to your business or need to discuss any other employment law matter you can contact the team for confidential advice.

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