2012 has proved to be another busy year in terms of keeping abreast of changes to employment law.
In this, our last HR briefing of 2012, we look back at the key employment law issues from the past 12 months, and provide a snapshot of some of the ways in which we have helped you, our members, remain confident and prepared in the face of these changes.
We break this down into the following sections:
At the start of the New Year, we will be producing an HR Briefing which will help you anticipate the changes which are likely to take place throughout 2013.
Sickness and holiday
A string of cases were issued this year on the entitlement to holidays of those absent due to sickness. Whilst this line of case law is undoubtedly of concern to employers, EEF can help you regain some control and minimise the impact of these judgments. Everything you need to know about the cases, and how to deal with their implications from a practical perspective, is in our updated and practical Mini-guide on holidays and sickness absence.
There has been a swathe of case law on TUPE this year and one of the key themes developed by the Courts was to set the hurdle much higher for a service provision change, or SPC, to exist. In practice, it is now even more important to drill down and scrutinise the activities carried out before and after a change of contractor in order to establish whether those activities are the same, and ultimately, whether TUPE will apply.
We provided a case law round-up on our website earlier this year, highlighting the important practical questions to ask in trying to determine whether there is an SPC, for example, how is the work is being organised for the client immediately before the change in contractor?
Next year we will be producing an up to date mini-toolkit on TUPE, which will contain tools (including, for example, a letter to send to your employee representatives explaining that there will be a TUPE transfer) which you can download easily in Word format.
The highest Court in the land has issued two important judgments this year.
A direct discrimination case, Seldon v Clarkson Wright & Jake, reinforced our view that it will not be possible for most employers to justify a compulsory retirement age. The Supreme Court held that a compulsory retirement age is direct age discrimination, and whilst this is capable of justification, the bar for justification is set very high.
In Homer v Chief Constable of West Yorkshire Police, an indirect age discrimination case, the Supreme Court analysed how employers can objectively justify indirect age discrimination. In practice, the case highlighted that employers will need to be able to come up with robust evidence if they wish to be able to justify an otherwise discriminatory provision, criterion or practice and that vague aims and anecdotal evidence will not suffice.
In Woodcock v Cumbria PCT, the Court of Appeal looked at the question of whether cost alone can justify age discrimination. It confirmed the ‘cost-plus’ principle, which means that while an employer cannot rely on cost alone to justify a discriminatory act, it can put cost into the equation alongside other justifications.
We have reported all of these cases on our website and our HR Briefing, entitled ‘Supreme Court gives judgment on two age discrimination cases’ gives you a step by step guide to justification.
We have been busy handling members’ Employment Tribunal and Employment Appeal Tribunal work, over 2,100 ETs this year to date. We expect to match last year’s impressive statistics which showed that of claims that proceeded to a tribunal hearing, the company was successful in 89% of them.
Seminars and Toolkits
We were delighted to see such a large turn-out at our well-received Member Briefings in the Spring and Autumn. The next Member Briefings will start at the end of February 2013 – keep an eye on our website for full details so that you can book your place.
Changing terms and conditions
During 2012, many of you attended our Managing Change seminars. We also launched our Changing Terms and Conditions Toolkit. This contains many tools designed to help you manage the change process with as few problems as possible. Many of you report you find the Strategy Planning Tool particularly helpful.
Managing sickness absence
We ran our series of Managing Sickness and Absence seminars in November and December. Combining our legal, HR and occupational health expertise, these offered advice on how to take control of sickness and absence. Using a case study approach, delegates were given straightforward, practical tools to improve attendance, performance and reduce costs and benefited from the knowledge and experience of the key note speaker, Professor Sayeed Khan, EEF’s Chief Medical Adviser.
We will be launching a new version of our Managing Sickness Absence Toolkit during 2013.
We ran our data protection seminars in the Autumn – these answered your top 10 tricky questions on this topic.
After strong lobbying by EEF, the clarifying regulations regarding the ‘prescribed form’ of an apprenticeship agreement came into force back in April. You can access a model apprenticeship agreement and drafting guidance under the ‘Essential HR Documents’ section of our website. The recent Review of Apprenticeships looked at how apprenticeships can meet the needs of the changing economy, deliver high quality training and the qualifications and skills that employers need and maximise the impact of government investment. EEF welcomed the report findings which you can read about in more detail.
Pensions and auto-enrolment
The new law on workplace pensions was implemented for the largest employers from 1 October 2012. Every month, more employers will reach their staging date and in the next 18 months, the majority of EEF members will have to comply with the new law. We recommend that you begin to prepare 12-18 months ahead of your staging date.
If you did not attend your ‘Auto-enrolment for beginners’ seminars during 2012, or if you would like a refresher, in Spring 2013 we will be we will be delivering a further series of seminars to our members to explain the new obligations and give clear advice on getting ready for the new law. Look out on the website for details of these seminars.
A detailed Mini-guide, entitled ‘Your pension auto-enrolment obligations’, is also available on our website.
The qualifying period for bringing an unfair dismissal claim increased from one to two years back in April 2012.
During 2012, EEF responded to many government consultations on a wide range of employment law issues. A few of the key consultations we have been involved with include:
- the government’s call for evidence on the effectiveness of the TUPE Regulations;
- the government’s consultation document on statutory collective redundancy consultation requirements - a reduction in the 90 day consultation period for 100 or more redundancies made in a 90 day period has recently been announced;
- the government’s consultation on the proposed reform of the ET rules and the introduction of tribunal fees;
- the controversial consultation on ‘employee-shareholder’ (previously ‘employee-owner’) contracts of employment - we think take-up amongst our member companies will be low; and
- Ending the employment relationship – EEF recently submitted our response to the ‘Ending the Employment Relationship’ combined consultation on the implementation of protected conversations, settlement agreements and the new unfair dismissal compensatory award cap.
You can read what we said in our submissions to government.
A big thank you to those of you who were involved with our focus groups or who helped feed into our responses.
What’s new on the horizon?
There will be a lot happening on the employment law front next year. For example, both the Enterprise and Regulatory Reform Bill and Children and Families Bill are still making their way through Parliament. We also expect to see changes to the Working Time Regulations announced next year.
At the start of 2013, keep an eye out for our HR Briefing which will help you anticipate the changes which are likely to take place throughout the coming year.
In the meantime, we would like to wish you a happy Christmas and to thank you for your membership during 2012. We hope that we can continue to support and help you manage your HR and legal responsibilities in 2013.