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A broad-ranging presentation focussed on keeping you up to date with current Employment Law and the effect that legislative changes and case law may have on your business or workplace
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Essential updates and practical guidance for employers
April 2014
LOOKING BACK!Donna Ingleby
Looking Back 2013 - 2014
• Introduction of fees in the Employment Tribunal - 29.07.2013
• Renaming of Compromise Agreements - Settlement Agreements - 29.07.2013
• Variation of Limit of Compensatory Award - 29.07.2013
[Lower of 52 weeks gross pay or £74,200 rising to £76,574 as at 6 April 2014].
TUPE REFORMEd Heppel
Employment Law Changes
In the last two years:
Unfair dismissal qualifying
period increased
Collective consultation
period reduced
Introduction of Tribunal
fees
TUPE reform
History of TUPE
TUPE Regulations 1981 (1981
Regulations);
TUPE Regulations 2006 (2006
Regulations); and
Collective Redundancies and
TUPE (Amendment) Regulations 2014
(2014 Regulations).
2014 Regulations - Changes
Employee Liability
Information
Informing and
Consulting in Micro
Businesses
Collective Redundancy Consultation
and TUPE
Automatic Unfair
Dismissal
Employee Liability Information
Regulation 11 of 2006 Regulations
Transferor to provide Transferee with employee liability information
Was 14 days before transfer. Now 28 days
Transfers on or after 1 May 2014
Informing and Consulting in Micro Businesses
13(2) 2006 RegulationsCompensation for failure
to inform and consult
Fewer than 10
employees
Transfers on or after 31 July 2014
Collective Redundancy Consultation and TUPERegulation 3 of the 2014 Regulations
Amends TULCRA 1992
Requirement to collectively
consult for 30 or 45 days
Also applies during TUPE
transfer
Historically pre-transfer
consultation never tested in the Courts
Collective Redundancy Consultation and TUPE
Pre-transfer consultation by the
Transferee now permitted by
legislation
Agreement of Transferor
needed
If agreed, Transferee
consults as if already employer
Automatically Unfair Dismissal
ETO Reason Entailing Changes in the Workforce
• Dismissal for sole or principal reason of transfer = AUD
• Unless (i) ETO reason and (ii) entailing changes in the workforce
• Historically changes in the workforce included:– changes in numbers of the workforce; or– a change in the functions of members of the workforce.
• Redundancy due to relocation often AUD
• New Regulation 7(3A) changes in workforce include relocation
• Applies to dismissals on or after 31 January 2014
LOOKING AHEAD 2014Donna Ingleby
6 April 2014
• Abolition of Discrimination Act Questionnaires
• Mandatory pre-claim
• ACAS conciliation
• Financial penalties for losing employers - Applicable to cases presented on or after 6 April 2014
• Abolition of SSP record keeping in favour of employers discretionary system
Spring 2014
• New approach to sickness absence management
1 May 2014
• The period in which transferors must provide Employee Liability Information will increase from 14 -28 days before the transfer
6 May 2014
• ACAS early conciliation becomes mandatory
30 June 2014
• Changes to the right to request flexible working
30 June 2014• Cha
nges to the right to request flexible working
31 July
2014• Cha
nges to the obligations to inform and consult for micro businesses
April 2015
• Introduction of a new system of shared parental leave
• Draft order to outlaw caste discrimination
October
2015
• Fathers and partners time off for up to two antenatal appointments
Pending
• Regulations giving Tribunals the power to request an employer to carry out an equal pay audit
• Governments response to consultation re Modern Workplaces
Abolition of Discrimination Act Questionnaires • 6 April 2014
Mandatory ACAS Consultation Step 1
Claimant must send “prescribed information” in the “prescribed manner” to ACAS
Step 2
Early conciliation support officer contacts the prospective Claimant
Step 3
The conciliation officer attempts to promote settlement
Step 4
The outcome of conciliation
Step OneThe Prescribed Information
Prospective Claimants Name Address Contact
numbersE-mail
address
Prospective Respondents Name Address Telephone
number
Delivery Online Post or by hand to address on EC form
Step TwoThe Role of the ECSO
• Make telephone contact with the prescribed Claimant
• Check details:– Length of employment– Date of dismissal or incident complained of– Details of Respondent – Detail the conciliation process – Check the reasonable adjustments (most likely requirement for
an interpreter) – Discuss claim, qualifying periods etc.
Step ThreeAttempts to Promote Settlement
• Where both parties have agreed to participate time limit is:– One calendar month from the date of receipt by ACAS of the
prospective Claimant’s completed EC form.– Conciliation can be extended by up to two weeks.– Settlement reached - ACAS will draw up an Agreement (COT3)
and issue an EC Certificate. – Settlement fails - ACAS will issue EC Certificate only
Step FourThe Early Conciliation Certificate
Potential Claimant’
s name and
address
Respondent’s name and
address
Date ACAS
received form
Unique referenc
e number
Date of issue of certifica
te
Bringing a Claim
Contacting ACAS will “stop the clock” on the Tribunal Time Limit
Conciliation after Proceedings are Issued
If parties request
it
If Conciliation Officer
considers he had a
reasonable prospect of
negotiating a settlement
What Happens …
… when a prospective Respondent requests early conciliation?
• No stop the clock provision
• No specified time limit
• Case referred to a conciliation officer and not an ECSO
Penalties for employers – 6 April 2014
“One or more aggravating factors”
Minimum £100, Maximum £5,000, 50% of the amount of any financial penalty
New Approach to Sickness Absence Management – Spring 2014
An in-depth assessment of an
individual’s physical and or mental function
Advice about how an
individual taking sickness absence
should be supported to
return to work
IAS - Independent Assessment Service to provide:
The Right to Request Flexible Working – 30 June 2014
Extends to all employeesAbolition of statutory procedure
ZERO HOURS – AN UPDATEEd Jenneson
Background
What is a zero hours contract?
No legal definition
Resulted in uncertainty for
employees/workers and employers
Employment Status – you decide!
Employee
WorkerSelf Employed
Specific Legal Terms
Control
what, how, when and where is the work done?
Zero Hours Contract – Myth and Reality
61% of zero hours staff not contractually
obliged to accept work
15% of employees employed under
zero hours contracts are contractually
required to be available as and when required
17% - in some circumstances
zero hours staff are expected to be available for
work
Legal rights and
protections
Right/protection Employee Worker Self-employed
Right not to be unfairly dismissed (after two years’ service) Yes No No
Right to receive written statement of terms and conditions Yes No No
Itemised payslip Yes No No
Statutory minimum notice Yes No No
Statutory redundancy pay (after two years’ service) Yes No No
Protection from discrimination in the workplace Yes Yes Yes
National Minimum Wage Yes Yes No
Protection from unlawful deduction from wages Yes Yes No
Paid annual leave Yes Yes No
Right to daily and weekly rest breaks Yes Yes No
Pension auto-enrolment Yes Yes No
Right/protection Employee Worker Self-employed
Right to be accompanied at a disciplinary or grievance hearing Yes Yes No
Rights under data protection legislation Yes Yes Yes
Whistleblowing protection Yes Yes Yes
Statutory Sick Pay Yes Yes No
Statutory maternity, paternity, adoption leave and pay Yes No No
Unpaid time off to care for dependants Yes No No
Right to request flexible working Yes No No
Time off for ante-natal care Yes No No
Time off for trade union activities Yes No No
Protection under the transfer of undertakings legislation Yes No No
Health and safety in the workplace Yes Yes Yes
Pros of Employee Status
Stable workforce
Relationships last longer
ControlMore
productive staff members
Longer notice period
Post termination restrictions
Cons of Employee Status
Employees receive the
fullest range of benefits
More difficult to
dismiss
More is expected by the employee in
respect of development and
training
Employers required to
provide certain equipment
Pros of Worker Status
SalaryNo need for
career development
Respond to increase
demand quickly
Dismiss workers more quickly
and effectively
Cons of Worker Status
Less reliable workforce
Higher rate of staff turnover
Less productive as no career
prospects
Higher absence/sickne
ss
Administrative burden
Post termination restrictions
Which Contract?
Employee or worker
Can you change status?
When should an employer use zero
hours contract (genuinely)
What Should a Zero Hours Contract Look Like
Confirmed status
Explain reason
Set out rate of pay
Holidays and accrual
Termination
Stick to it
Government Consultation – the future?
Exclusivity clauses• Legislation to ban the use of exclusivity
clauses that offer no guaranteeTransparency• Common difficulties • National minimum wage • Holidays
Case Update
Philosophical Belief Case
Olivier v The Department of Work and Pensions – Democratic socialism– Belief, not an opinion– Belief genuinely held – Certain level of cogency
Lack of Faith in the Prison System
Naeem v The Secretary of State– Muslim Chaplin – Length of service disadvantage– Indirect discrimination
Disability Discrimination – Car Parking and Medical ExpensesCroft Vets Limited v Butcher
– Private Counselling
Environment Agency v Mr C M Donnelly – What is reasonable?
Banter Too Far?
• Fine line between bullying and harassment and willing participants
Svetlana Lokhova v Sberbankcib (UK) Limited– Ensure equality policy/dignity at work policies are in place
The Right to be Accompanied?
• Toal and another v GB Oils Limited– Reasonable companion?– ACAS Code to be amended
Any questions?
Donna InglebyPartner, Head of Employmentdonna.ingleby@rollits.com01482 337314
Ed JennesonPartneredward.jenneson@rollits.com01482 337341
Ed HeppelSenior Solicitored.heppel@rollits.com01482 337313
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