Article for CIPDOctober 2013

Employment Changes – What to consider

Despite promises of less red tape and an environment that is to assist employers and the economy

growth, there are still many chan

ges to the employment legislation landscape that have to be taken into account. The difference on this

occasion is that perhaps the most far reaching changes arise from decisions in case law rather than

the hard letter of the law.

Tribunal Fees

That said, of greatest current impact to HR teams and businesses are the introduction of fees to pur-

sue tribunal complaints as well as the revision of the tribunal process. Already we are seeing a signifi-

cant drop in the number of claims, beyond what was probably envisaged by most prior to their intro-

duction and it remains to be seen if the larger drop is just a reflection of a surge in claims immediately

before the changes came into effect.

Recent statistics published show that the overall number of tribunal claims in September 2013 was

around 80% of the July 2013 level – not a huge difference – but the level of individual (rather than

multiple) claims in September 2013 was around 25% of the July 2013 level. At the moment it is too

early to draw any firm conclusions as to where the level of claims will stabilise and what impact the

fee regime will ultimately have on the volume of tribunal claims

Tribunal Changes

Tribunals also appear to be acting more decisively in dismissing claims early on where there is no

prospect of success, although as always there do appear to be some regional variations, but as yet

there is no statistical data to confirm this.

TUPE

Other legislation to be introduced is the new TUPE legislation. The Government’s consultation had

proposed changing the current TUPE regime to repeal service provision changes and the requirement

for employee liability information. However, the overwhelming response to the consultation was that

these two things should remain. For once the pleas of the multitude have been heard and the

changes will not take place. In fact employee liability information will now be given 28 days before the

transfer takes place rather than 14 days so much more useful.

The changes that are expected to come into play early in 2014 include an ability to consult on collec-

tive redundancies pre transfer if you are a transferee provided that you have the agreement of the

transferor. The ability to undertake this previously was unclear but in practice was carried out where

possible and therefore this seems a sensible change.

The transferor still cannot rely on the transferees reason to dismiss pre transfer although that had

been mooted.

Currently transferees who have to make redundancies because the transferring employees are based

at a different location from where the business will be carried on post transfer face claims for auto-

matic unfair dismissal. The new regime introduces a welcome change to the law that going forward it

will be possibly to fairly dismiss these employees by way of redundancy.

TUPE Cases

However despite the fact that the changes seem limited employers should be aware that the trend for

the tribunals recently has been away from decisions that TUPE nearly always applies where there is a

service provision change. There has been a particular focus on whether there is an ‘organised group-

ing of employees’ and how the work will be done in a new organisation. It is this that employers

should take most heed of, particularly where it is claimed there is a service provision change.

Collective Redundancies

Another case to take heed of is the Employment Tribunal decision in the Woolworths collective redun-

dancy case. It has been highly publicised, and if the decision stands it will have far reaching effects. If

the ‘establishment’ is the whole organisation rather than a particular branch or location this has major

ramifications in particular for multi-site organisations. Permission has now been given for the decision

to be appealed.

What to pay

Holiday pay, sick pay and the ability to take time continue to get plenty of air time both here and in Eu-

rope. The case law continues to develop and policies and procedures need to be carefully drafted to

make sure that organisations control this as much as is possible.

A potentially significant development relates to whether in accordance with European law payments

made for overtime or shift premiums need to be included in the calculation of holiday. Many organisa-

tions pay holiday at basic rate only. This is an issue which a number of Employment Tribunals are

currently grappling with and some have decided that overtime and shift premiums do have to be in-

cluded in the calculation of holiday pay. These decisions have not been tested by at the Employment

Appeal Tribunal or above so the position remains unclear, but potentially worrying for employers.

Family friendly

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A number of family friendly measures are planned to come in during 2014 and 2015 including the abil-

ity for parents and adoptive parents to share maternity leave and pay and for the right to request flexi-

ble working to be extended to all employees. There are a number of tricky questions that have not yet

been answered as to exactly how these family friendly measures will work in practice.

Protected conversations

It is 3 months since employers have had the right to enter into confidential discussions with employ-

ees about the termination of their employment on an “of the record” basis. This was broadly welcomed

by employers as giving them to opportunity to have sensible discussions with employees without the

fear that the conversations would be used as a basis for a constructive dismissal claim. Whilst wel-

come in principle, our experience is that the potential gaps in the protection for employers has led to a

high degree of caution about whether or not such conversations would ultimately be admissible in fu-

ture Employment Tribunal proceedings

Overall, perhaps less changes than in years gone by, but certainly enough to get your teeth into!

-ENDS-

Notes to editors:

DWF LLP is one of the fastest growing law firms in the UK. It offers a full range of services to both

businesses and private clients with teams specialising on all aspects of law, as well as providing spe-

cialist advice across a range of sectors including education, energy and infrastructure, food, health,

public sector, retail, outsourcing and technology, and transport.

It has 1,800 people based in Birmingham, Coventry, Edinburgh, Glasgow, Leeds, Liverpool, London,

Manchester, Newcastle, Preston and Teesside and has an international reach through its relation-

ships with law firms around the globe.

DWF was ranked second in the 2011 Legal Week Client Satisfaction Survey and was also voted ‘Na-

tional Law Firm of the Year’ in the 2011 Legal Business Awards.

Media enquiries to:

Kate Dixon or Cerys Wason at Tangerine PR

Tel: 0161 817 6600

Email: dwf@tangerinepr.com

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