Do you feel like 2013 has left you with a bit of an employment law hang-over? Let’s face it; it’s been a busy year – the introduction of fees in employment tribunals, statutory protection for settlement discussions and reductions in collective consultation obligations - to name but a few big changes.
Looking ahead? Well there is no sign of a let up anytime soon in 2014!
So, to give you a head-start, here are some key employment law dates you should enter in the diary for the first half of 2014.
It’s probably best to make your entries in pencil at this stage - proposed legislative time-tables are always prone to a bit of slippage.
As ever, EEF will keep you up-dated on all the important HR and employment law changes, developments and proposals as the year unfolds. We are also running a series of seminars in 2014 to help you get to grips with the more practical aspects of these key changes (see details below).
Hopefully, 2014 will turn out to be a productive, as well as busy, year!
‘New’ TUPE - Changes to TUPE Regulations ‘scheduled’
Hopefully, we will be kicking off the New Year with ‘New’ TUPE - the implementation of the proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006. See our previous HR Briefing – TUPE Regulations Published.
The Regulations are ‘scheduled’ to come into force in January. However, given that draft Regulations were only published in late November and the government also have to issue finalised guidance, it may be that there is a bit of lag.
We will be running a series of seminars on the practical application of ‘New’ TUPE in May – what’s changed, what’s stayed the same and how are/will the changes impact on commercial practice. For further details, or to book a place, click here.
Regulation freeze extended to businesses with fewer than 50 employees
The freeze that exempts businesses with fewer than 10 employees from ‘burdensome’ new employment regulations will be extended to businesses with fewer than 50 employees.
The freeze operates so that when new proposals are made, if it is identified that these pose unnecessary burdens on small businesses (i.e. those with fewer than 50 employees), the proposals will not be implemented until an exemption is granted to these businesses or the identified excessive burdens have been mitigated.
For further information see the Government’s announcement on the BIS website.
… Looks set to be a busy month…
Right to request flexible working extended to all employees
The Children and Families Bill extends the right to request flexible working to all employees and removes the requirement to be a parent or carer. The current prescribed statutory procedures for dealing with statutory requests will also be removed and replaced by an obligation on employers to deal with flexible working requests ‘reasonably’. This new employer duty will be governed by a Statutory Code and supporting Non Statutory Guidance - both of which are being produced by Acas as we speak.
EEF will be assessing the impact of the extension of the statutory right to request flexible working, and exploring how employers can effectively manage flexible working within the law as part of our Family Law Reform Seminars - which will be running throughout February and March 2014. For further information or to book a place click here.
Early conciliation comes into force
The Enterprise and Regulatory Reform Act 2013 (EERA) requires potential claimants to lodge details of their proposed employment tribunal claim with Acas in the first instance.
When a potential claimant contacts Acas with ‘the prescribed information’, Acas will offer the parties the opportunity to engage in conciliation with a conciliation officer. Acas will have up to one calendar month from receipt of an early conciliation form (which prospective claimants will need to complete) to achieve a settlement (although this period may be extended by up to two weeks where both parties consent and Acas considers that there is a reasonable chance of reaching a settlement during the extended period).
Where the conciliation officer concludes that a settlement is not possible, or where the prescribed period ends without reaching a settlement, the claimant will be issued with a certificate permitting him or her to issue proceedings in the employment tribunal – an early conciliation certificate. A prospective claimant will be prevented from commencing proceedings without such a certificate.
Limitation periods for issuing claims will be extended to allow early conciliation to take place.
Financial penalties imposed on employers who breach employment rights
The ERRA also provides that from April, tribunals will be able to impose financial penalties on employers who lose at tribunal. These penalties will be in addition to any compensation payable.
Although originally planned as an automatic levy, (which EEF fought strongly against), the imposition of financial penalties will be at the tribunal’s discretion.
Tribunals will only be able to utilize this discretion where the employer’s behavior in committing the breach of the employee’s rights has one or more ‘aggravating features’. The explanatory notes to the ERRA set out a non-exhaustive list of factors which a tribunal may take into account in deciding whether to impose a financial penalty. The list includes the size of the employer, the employer and employee’s behavior and the duration of the breach of the employment right in question. The explanatory notes also state that a tribunal will be more likely to find that an employer’s behavior had ‘aggravating features’ where the offending action is taken ‘intentionally or with malice’. It remains to be seen what other factors tribunals might consider to be “aggravating” and worthy of the tribunal exercising its discretion to impose a penalty.
Tribunals have less discretion over the amount of any penalty awarded. This must be 50% of the amount of the compensation awarded (subject to an upper cap of £5,000) with a 50% discount for employers who pay within 21 days of the tribunal’s decision.
All penalty sums will go to the Secretary of State - rather than to the claimant, but that will probably be of little comfort to employers who are subject to a penalty.
Discrimination questionnaire procedures to be repealed
S138 of the Equality Act 2010 will be repealed (again by virtue of the ERRA). This is the procedure under which employees can seek to obtain information from employers about alleged discrimination/discriminatory practices and use it as evidence in employment tribunal claims.
The government has stated that it intends to promote a new "informal approach" to fill the gap left when the statutory questionnaire procedure is abolished. It considers that this non-legislative approach, which will be set out in Acas guidance, will enable businesses to better challenge any unreasonable requests for information and will be ‘fairer for all’. The proposed guidance will include advice on how individuals can most effectively ask questions of employers and explain why it is in the employer’s best interest to respond to these requests.
And finally …
Remember to keep an eye on EEF’s website. If you have any questions or queries don’t hesitate to contact your EEF Adviser.
In the interim...
Happy Christmas – enjoy the break!