Annual Employment Law Review

5 December 2013

David Poddington, Partner

Jenny Arrowsmith, Partner

Tom Draper, Associate

Annie Gray, Solicitor

Rebecca Hutchinson, Legal Assistant

“ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon for giving advice and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of reliance on this material”.

Introduction

Employment Tribunal reform

Key statutory changes

Case law update

What to expect in 2014

Discussions and questions

Employment Tribunal reform

Unfair dismissal

WHEN? From 29 July 2013

WHAT? Compensatory awards for dismissals on or after 29 July 2013 are the lower of

£74,200 or 52 weeks’ gross pay Maximum is £74,200 for dismissal between 1 February and 28 July 2013

Tribunal fees

WHEN? From 29 July 2013

WHAT? Type A claims - £160 issue fee and £230 hearing fee Type B - £250 issue fee and £950 hearing fee Application fees - £60 to £350, depending on the application and type of claim Fee remission

Compulsory early ACAS conciliationWHEN?April 2014

WHAT?New mandatory conciliation procedureFour Stage Process

Claimant sends prescribed form to ACAS Link to Conciliation Officer Conciliator promotes settlement within prescribed period If not settled, Conciliator issues early conciliation certificate and Claimant

can proceed to lodge Employment Tribunal claim Who is covered?ExemptionsPost claim conciliation

Financial penalties for employers

WHEN?From 6 April 2014

WHAT?Fines of up to £5,000 can be orderedAwards made where Respondent loses and there are “aggravated features”Fines payable to the Exchequer

Tribunal statistics

Number of claims per month between 4421 and 5066 between January and June 2013

1117 claims received in September

Median award for unfair dismissal was £4,832

Median disability discrimination award was £7,536

Increase in costs awards

Key statutory changes

Settlement agreements & pre-termination negotiationsWHEN? From 29 July 2013

WHAT? “Compromise Agreements” renamed “Settlement Agreements” Introduction of “pre-termination negotiations”

Extension of the “without prejudice rule”

“Pre-termination negotiations” inadmissible as evidence in ordinary unfair

dismissal proceedings unless improper behaviour by employer

Beware - admissible as evidence in other claims

- difficult to ring-fence pre-termination negotiations

Collective consultation

WHEN? From 6 April 2013

WHAT?

Where an employer proposes to dismiss 100+ employees [at one establishment] within a 90 day period, consultation period before first dismissal takes effect reduced from 90 days to 45* days

30* day consultation period where 20-99 employees to be dismissed within a 90 day period – no change

Maximum protective award remains 90 days

Expiry of fixed-term contracts excluded

* Note: minimum consultation period

Third party harassment

WHEN? From 1 October 2013

WHAT?

Repeal of 3rd party harassment provisions

BEWARE

Duty of care owed to staff

Implied term of “mutual trust and confidence”

Claims under the Equality Act 2010

Protection from Harassment Act 1997

Changes to whistleblowing laws

WHEN?

25 June 2013 & beyond

WHAT? Introduction of the requirement for the whistle-blower to hold a “reasonable

belief” that the protected disclosure is “in the public interest” Removal of “good faith” requirement Changes regarding an employer’s liability where whistle-blower subjected to

detrimental treatment by colleagues Job applicants

Employee share ownership

WHEN?

1 September 2013

WHAT?

A new employment status

Employees give up certain employment rights in return for a minimum of £2,000 paid up shares

As bad as it sounds?

As good as it sounds?

Government guidance - gov.uk website

Unfair dismissal due to political affiliationWHEN?

25 June 2013

WHY?

Redfearn v United Kingdom [2012] ECHR 1878 – held that UK laws violated the European Convention of Human Rights

WHAT?

Removal of the qualifying period for unfair dismissal claim where the reason or principal reason for the dismissal “is, or relates to, the employee’s political opinions or affiliation”.

Not a new protected characteristic or new ground for automatic unfair dismissal

Case law update

Scenario 1

Nosedive Ltd sees a dramatic decline of sales due to its main competitor launching a thriving rival product.

A rescue programme earmarks 4 stores across the network for closure.

Store sizes vary:

Liverpool – 32 staff

Coventry – 16 staff

Manchester – 35 staff

Leeds – 18 staff

For which stores do collective consultation obligations arise? For how long?

Change to collection consultation

Case: USDAW v Ethel Austin Ltd (in administration) & another EAT

NOTE: Subject to appeal 2014

Scenario 2

Bob is made redundant from the cake factory

at which he has worked for the last 2 years.

He asserts entitlement to an enhanced package as his employer has, he says, a policy of paying enhanced redundancy terms.

The enhancement is referred to in the HR manual (available on request but not widely distributed).

It is accepted that enhanced terms have been paid for the last 3 redundancy programmes.

Creation of implied rights

Case: Shumba & others v Park Lakes Ltd (CA)

Scenario 3

Sally requests her colleague, Benjamin, to attend a disciplinary hearing as her companion.

You refuse the request due to concerns that he has a pending grievance against the disciplinary manager and he will try to hijack the meeting.

Is it acceptable to insist on Sally choosing another companion?

Right to choose companion

Case: Toal & others v GB Oils EAT

Scenario 4

Mr H is entitled to 28 days statutory holiday each year.

Following a stroke, he is absent from work, straddling 2 holiday years. He is then dismissed before returning to work.

He is paid for holiday accrued in this holiday year but not the previous one. Should he be allowed to carry over from last year?

Carry over of holiday entitlement

Holiday still accrues during absence

If there is no opportunity to take it in the

holiday year, it should carry over (and must

not be paid in lieu except on termination)

Carry over is limited to minimum 4 weeks’

holiday under the Working Time Directive

Case: Sood Enterprises Ltd v Healy EAT

What to expect in 2014 & beyond

Abolition of discrimination questionnaires

WHEN?6 April 2014

WHAT?Current statutory processChanges taking effect:

New non-statutory process No prescribed format Informal questions in writing Possible ACAS guidance to be issued No adverse inferences if do not respond?

Changes to Flexible WorkingWHEN?Due to be implemented in Spring 2014

WHAT?Extension of right to request flexible working to all employees with qualifying serviceNo statutory procedure for responding to requestsNew statutory ACAS Code of PracticeDuty to consider requests in reasonable mannerPrescribed grounds for rejection are likely to remain

Family friendly rights WHEN?Due to be implemented in 2015

WHAT?Abolition of additional paternity leave/payIntroduction of Shared Maternity Rights

Parents choose how best to split the leave/pay entitlements Parents can share up to 50 weeks’ leave + 37 weeks’ pay

Unpaid parental leave extended to all children up to age of 18

Equal pay audit

WHEN?Expected in October 2014

WHAT?Employment Tribunal may order employer to undertake equal pay auditNew powers to order content/time limits and whether audit will be disclosed Penalty of up to £5,000 for non complianceExemptions apply

Questions/discussions

Annual Employment Law Review

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