EMPLOYMENT LAW
NEW LEGISLATION 2013 – 2014
A number of employment law changes are imminent and here we have a look at some of those changes which will impact on businesses and employee relations.
FEBRUARY 2013
Statutory Redundancy Pay
From 1st February 2013 the cap on the weekly rate of pay for an eligible employee when calculating statutory redundancy pay went up from £430 to £450 .
MARCH 2013
Parental leave
From 8th March 2013, an employee will be entitled to 18 weeks parental leave (previously 13 weeks) for each child under the age of 5, with a maximum of four weeks to be taken in any one year, in one week blocks. Previously, employees with children under the age of 5 or 18 (in the case of a disabled child) with at least one year’s continuous service were entitled to up to 13 weeks unpaid parental leave.
Discrimination / Harassment
Employer liability for third party harassment claims under the Equality Act will be repealed.
Criminal Record Checks
Criminal Record Checks are renamed Disclosure and Barring Service checks and are now known as DBS checks. They will also become “portable” from one job to another and employers will be able to view the check instantly online from March 2013.
APRIL 2013
Statutory rates of pay
Maternity: From April, statutory maternity, paternity and adoption pay will all increase from the previous weekly rate of £135.45 to £136.78.
Sick Pay: Statutory Sick Pay will also increase at the same time from £85.85 to £86.70 per week.
Employee-ownership – Employee Shareholders
A new category of employment status (employee shareholders) will be created whereby an employee can obtain shares in their employer’s business in return for giving up certain employment rights. The value of the shares must be at least £2,000 at the time they are issued and in return the employee shareholder will give up the right to claim unfair dismissal, the right to a statutory redundancy payment and the right to request flexible working and/or time off for training. In addition, employee shareholders will need to give 16 weeks’ notice (instead of the usual eight) in order to return early from maternity leave.
Collective Redundancy Consultation - reduction
The consultation period for collective redundancies will be reduced from 90 days to 45 days where 100 or more employees are being affected by a redundancy. From April, employees whose fixed term contracts are due to expire will be excluded from consultation requirements.
Whistleblowing
The definition of a protected disclosure will be tightened so that from April 2013 a worker must have a genuine belief that their disclosure is in the public interest in order to succeed with a whistleblowing claim.
Compensatory Award
The Secretary of State will be given the power to cap unfair dismissal compensation awards. The cap may vary for different types of employers and it could be set at an amount between one and three times median annual earnings (currently £25,882 – £77,646) or a number of weeks’ pay (not less than 52 weeks) or the lower of these two figures.
Compulsory Conciliation
Tribunal claimants will not be able to file their claim until he/she can demonstrate that it was not possible to reach a settlement with their employer (see Settlement Agreements below). There will be a new duty on parties to attempt pre-claim ACAS conciliation on most potential tribunal claims. This will be a mandatory process and the claimant will have one month after the conclusion of pre-claim conciliation to present their claim to the tribunal.
Settlement Agreements
Compromise Agreements are to be called Settlement Agreements and there will be a new ACAS statutory code of practice to provide guidance on settlement agreements. Discussions surrounding settlement agreements will be inadmissible i.e. similar to the current position where discussions are protected by the without prejudice principle.
Employer Penalties
Tribunals will be able to exercise their discretion to impose a financial penalty on an employer (in addition to any financial award made to a claimant) of up to 50% of any financial award made. There will be a £100 minimum and a £5,000 maximum. The money received from penalties will not go to the claimant but retained by the Secretary of State.
FORTHCOMING
Tribunal fees
It is anticipated that the government will introduce the requirement for a fee to be paid if a claim is issued at the Employment Tribunal from this summer.
EMPLOYER ACTION
Employers are recommended to update any policies, handbooks, template letters and contract of employment to reflect the changes as detailed above. Please contact us at admin@hrdiveristy.co.uk for further support and advice on regarding your company policies and procedures.
Government proposals to streamline employment laws, available now. For details; http://news.bis.gov.uk/Press-Releases/New-proposals-to-streamline-employment-law-will-boost-business-68014.aspx
QUALIFYING FOR UNFAIR DISMISSAL
Qualifying Period to Claim Unfair Dismissal: From 6 April 2012, the qualifying period to claim unfair dismissal is extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year.
The right to request a written statement of reasons for dismissal is also extended from one year to two years for employees who start on or after 6 April 2012. Claims for unfair dismissal where there is no qualifying period, for example where the dismissal is for a reason based on unlawful discrimination, continue to be able to be made from day one.
NB: The above only applies to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April remains able to claim unfair dismissal after only one year. See below for further information.
Other important changes include;
RESOLVING EMPLOYMENT DISPUTES
We are experts in this area. Call us on 01793 338888 for an initial FREE consultation.
To simplify workplace disputes, a number of proposals have been made with the objective of reducing the number of claims going to employment tribunal (and to speed them up when then get there). Here is an update;
Mediation: The Department for Business, Innovation and Skills is funding training for employees from 24 SMEs to enable them to provide mediation to organisations in their network, to help resolve employment disputes at an early stage in SMEs. The aim is to preserve the employment relationship wherever possible. More details will follow on this initiative. Meanwhile, we provide a mediation service. Tel: 01793 338888 and ACAS refers cases to us.
Pre-Claim Conciliation: TheEnterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, includes a requirement for details of all employment claims to be submitted initially to ACAS, before they can be lodged with the tribunal. Claimants will be offered pre-claim conciliation, but there will be no obligation on either party to take up the offer; if the offer is refused or conciliation is unsuccessful the claim can proceed to the tribunal. Limitation periods will be extended to allow time for ACAS conciliation.
This is different from the original proposal, which would have required all claims to go through pre-claim conciliation with ACAS before they could go to tribunal. The pre-claim conciliation provision is in ss.7-9 of the bill.
Rapid Resolution: S.10 of theEnterprise and Regulatory Reform Bill allows for regulations to be made permitting appointed legal officers to make decisions on behalf of the employment tribunal, if all parties to the dispute agree in writing, in specified low value, straightforward claims such as holiday pay. The intention is to be quicker and cheaper, for example by allowing for non-judicial determination based only on papers, without an oral hearing.
No-fault dismissals for micro-employers: This legislation is unlikely to actually become law but following the government’s “red tape challenge” on employment-related regulations in October 2011, the Department for Business, Innovation and Skills carried out from 15 March to 8 June 2012 a call for evidence on the implications of compensated no-fault dismissals for micro-employers with fewer than 10 employees. Under this proposal, a micro-employer would be able to dismiss an employee even if there was no fair reason for doing so and without going through a disciplinary and dismissal procedure, on payment of a set amount of compensation.
WHISTLE-BLOWING
Whistle-blowing: Under ss.43A-43L of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998 (PIDA), a worker who reveals information about an employer that would normally be confidential (whistle-blowing) is protected against victimisation or dismissal, provided the worker reasonably believes the disclosure tends to show one or more of six categories, and it is made through a protected route. The categories are criminal offence, failure to comply with any legal obligation, miscarriage of justice, danger to an individual’s health or safety, damage to the environment, or deliberate concealment of information tending to show any of these. Protected routes include the employer, a legal advisor, or prescribed bodies such the Charity Commission, Health & Safety Executive, HMRC, Environment Agency etc; there are other protected routes. Disclosure to a protected body must be made in good faith.
Disclosure of information that the worker does not reasonably believe shows or tends to show one of the six categories or is not made through a protected route is not protected.
A clause included in the Enterprise and Regulatory Reform Bill, which was introduced in Parliament on 23 May 2012, would change the definition of whistle-blowing so that the worker not only has to reasonably believe the disclosed information tends to show one or more of the six categories, but also reasonably believes it is made in the public interest. Unlike other employment-related provisions in the bill, the government did not carry out any consultation on this. A change in the legislation is necessary, because the employment appeal tribunal found in Parkins v Sodexho that an employer’s breach of an individual’s contract of employment is a failure to comply with a legal obligation, and therefore disclosure of a contractual breach could be protected. There have been concerns that since this 2001 decision, PIDA is being abused in particular by City bankers using it to claim that disclosures about their bonus payments are protected disclosures.
STATUTORY MATERNITY
Statutory maternity pay (SMP) is 90% of the woman’s weekly earnings for the first six weeks of maternity leave. For the remaining 33 weeks of the 39-week SMP period, SMP is a flat weekly rate or 90% of average weekly earnings, whichever is less. For complete pay weeks starting on or after 1 April 2012, the flat rate is £135.45 (increased from £128.73).
For complete pay weeks starting on or after 1 April 2012 statutory paternity pay (SPP) and statutory adoption pay (SAP) are £135.45 per week (increased from £128.73) , or 90% of the employee’s average weekly earnings, whichever is less. The earnings threshold for eligibility for SMP, SPP and SAP is £107 per week (increased from £102). An employer who paid, or was liable to pay, gross class 1 national insurance contributions of £45,000 or less in the individual employee’s qualifying tax year can recover 100% of the SMP, SPP or SAP, plus 3% compensation. Employers who do not qualify for this small employer relief can recover 92%.
Proposals to increase SMP and SAP from 39 to 52 weeks have been put on hold indefinitely, but additional paternity leave and pay were introduced where the child is due or is matched for adoption on or after 3 April 2011.
PATERNITY
The Additional Paternity Leave Regulations 2010 gave a new right to additional paternity leave in relation to babies expected on or after 3 April 2011 or children placed for adoption on or after that date.
TIME OFF FOR DEPENDENTS
A case in April 2011, Clarke v Credit Resource Solutions, illustrates the importance of understanding the statutory right of all employees, regardless of length of service, to take reasonable time off to deal with unexpected or sudden situations relating to dependants, or to make necessary longer-term arrangements for dealing with the situation. There is no right to pay for the time off unless the contract says it is paid, but it is unlawful to subject an employee to a detriment for exercising their right.
Employers need to have a clear policy to ensure managers and staff know about this and understand it.
MINIMUM WAGE
From 1 October 2012 the national minimum wage for workers aged 21 and over will go up 11p, from £6.08 to £6.19 per hour. It will remain £4.98 for 18-20 year olds and £3.68 for 16 and 17 year olds who are above school leaving age and are not apprentices. The government’s justification for freezing the youth rates is that in the current economic climate, an increase would make it harder for them to get a job in the long run. The apprentice minimum wage of £2.60 per hour will go up to £2.65 for apprentices aged under 19, or over 19 and in the first year of their apprenticeship. This applies to apprentices on traditional contracts of apprenticeship, and employed apprentices on government-supported level 2 and 3 schemes. The apprentice minimum wage came into effect on 1 October 2010, replacing the £95 per week minimum rate of pay for apprentices.
The accommodation offset rate (the amount that can be taken into account for living accommodation) will be increased from £4.73 per day (£33.11 per week) to £4.82 per day (£33.74 per week). Since 1 October 2011 the accommodation offset has not applied to students in full-time higher education and further education who are employed by the institution at which they are students.
Information may be found via the Governments website (The Department for Business, Innovation and Skills), via Business Link and/or via HM Revenue & Customs.
RIGHTS FOR TEMPORARY WORKERS
The rights of temporary workers: From 1 October 2011, when the Agency Workers Regulations 2010 came into effect, agency workers (often referred to as temps) in England, Wales and Scotland, who are placed on assignment by a temporary work agency (TWA), are entitled to the same basic employment rights as a comparable employee or worker (the comparator) directly employed by the receiving organisation (the hirer).
FLEXIBLE WORKING
The Right to request flexible working: The government proposes that the right to request flexible working be extended to all employees who have been with their employer for 26 consecutive weeks, not just those who are parents or carers as at present. The current statutory procedure for flexible working requests would be replaced by a statutory code of practice for employers and a duty to consider requests reasonably, but there are no plans to alter the current eight business reasons for an employer to turn down a request. At present employees can request flexible leave only once in a 12-month period. Under new proposals they would be able to make a further request within 12 months where the initial request was for a temporary arrangement.
The government’s response was expected in early 2012 but has been delayed.
STATUTORY SICK
Statutory Sick Pay: For sickness absence on or after 6 April 2012, the earnings threshold is £107 per week (increased from £102) and the statutory sick pay rate is £85.85 per week (increased from £81.60). Employees earning less than £107 p.w. or not eligible for SSP for other reasons may be entitled to employment and support allowance.
PROTECTION FROM HARASSMENT ACT 1997 ss.1 and 3
There is no UK legislation specifically to protect those who may be suffering, or have suffered, from bullying at work. This does not mean they have no legal protection. It does mean, however, that to ensure legal protection or redress they must consider existing related employment law and the Acts detailed below.
OVERLAPPING DISPUTE RULE
(Employment Act 2002, Dispute Resolution Regulations 2004 SI 2004/752 regs 6 and 7)
In some situations it is not clear whether a capability policy, a conduct policy, a disciplinary procedure or a grievance procedure applies, or all of the above. Managing conduct issues when performance issues are ‘said to be’ to a high standard, can be extremely difficult. Perceptions create complications.
The overlapping disputes rule allows the statutory procedures to be satisfied in a single process – provided the employee sends the employer the Step 1 statement of grievance before a disciplinary Appeal meeting proceeds.
HISTORIC
The Employment Act 2008 received royal assent on 13th November 2008 and became operational as from 6th April 2009. In summary, the Act (set out clearly under The ACAS CODE OF PRACTICE) deals with changes dealing with workplace dispute resolution, the national minimum wage, employment agencies and trade union membership law. This new ACT;
* repeals the statutory dispute resolution procedures and related provisions (under the original Employment Act; Dispute Resolution Reforms).
* As a result: There will be no more automatic unfairness for an employer’s failure to comply with the requirements of a relevant statutory procedure.
* Empowers employment tribunals to adjust awards of compensation by up to 25% for an unreasonable failure to comply with any provision of the recently published revised ACAS Code of Practice on Disciplinary and Grievance process
* Introduces a new fast-track procedure under which cases can be determined without a hearing provided both parties agree
* Makes changes to the law relating to conciliation by ACAS, thereby allowing ACAS to prioritise cases where demand for conciliation exceeds resources available for conciliation
* Provides for tribunals to award compensation for financial loss, for example bank charges incurred by the employee, following certain types of monetary claim, such as unlawful deduction from wages or non-payment of redundancy pay.
LAWS – OVER THE LAST DECADE
Over the past decade, regulations have been introduced in the UK to define indirect discrimination, harassment, less favourable treatment, unlawful harassment, gender discrimination and general principles of treatment of both men and women in the workplace today. These laws (not exclusively) include:
1. Accession (Immigration and Worker Registration) Regulations 2005
2. Agricultural Wages Order 2005
3. Compromise Agreements (Description of Person) Order 2005
4. Employment Appeal Tribunal (Amendment) Rules 2005
5. Employment Code of Practice (Access and Unfair Practices during Recognition and De recognition Ballots) Order 2005
6. Employment6 Code of Practice (Industrial Action Ballots and Notice to Employers) Order 2005
7. Employment Equality (Sex Discrimination) Regulations 2005
8. Employment Relations Act 2004 (Commencement No.4) Order 2005
9. Employment Tribunals (Constitution and Rules of Procedure) Amendment Regulations 2005
10. Employment Tribunals (Constitution and Rules of Procedure) Amendment No.2 Regulations 2005
11. ..(and 2005/1865 Unfair Dismissal/National Security involved)
12. Limited Liability Partnership (Amendment) Regulations 2005
13. National Minimum Wage Regulations 1999 (Amendment) Regulations 2005
14. Patents Act 2004 – Order 2005
15. Public Interest Disclosure – Order 2005
16. Social Security (Incapacity) Misc Amendments Regulations 2005
In addition the current laws may interest;
EMPLOYMENT EQUALITY
(Sex Discrimination) REGULATIONS 2005 SI 2005/2467
One of the most important aspects, which will impact on every day working lives, is the Employment Equality (Sex Discrimination) Regulations 2005.
Under this new piece of legislation, any form of harassment is unlawful.
Now, a woman can bring a claim IF, on the grounds of her sex, a male colleague engages in unwanted conduct that has the purpose or effect of violating her dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.
Also. if a female employee is subjected to unwanted, verbal, non-verbal or physical conduct, of a sexual nature, that violates her dignity at work – she can bring a claim against her employer.
If you are an Employer and you would like support, see our proposals for Remedy under ‘Addressing‘ section and/or look at the Employer section. Alternatively, telephone us (01793 338888) or email us at : admin@hrdiversity.co.uk
THE EQUALITY ACT
The Equality Act was introduced on 1st October 2010 and supersedes The Disability Discrimination Act and other legislation. The most important change introduced under this new Act is that, with the exception of restricted circumstances, employers are not permitted to ask any job applicant about their health or any disability until the person has been offered a job (either outright or on conditions, or included in a pool of successful candidates to be offered a job when a position becomes available). Questions relating to previous sickness absence count as questions that relate to health or disability. Please ensure your in-house recruiters (HR teams and line managers) are made aware of this important piece of legislation. If you would like further information, please contact us.
OTHER LAWS
(i) The Sex Discrimination Act 1975;
(ii) the Race Relations Act 1976 (see RACIAL DISCRIMINATION );
(iii) Employment Rights Act 1996 (especially the parts dealing with unfair dismissal , constructive dismissal and victimisation );
(iv) the www.emplaw.co.uk/free/i40.htm Health & Safety at Work etc Act 1974 and related personal injury aspects (see e.g. Health & Safety at work/stress );
(v) Trade Union & Labour Relations (Consolidation) Act 1992 (see CRIMINAL LAW ASPECTS/offences under employment legislation/intimidation );
(vi) www.emplaw.co.uk/free/data/dup1147.htm Public Interest Disclosure Act 1998;
(vii) contract law (see e.g. www.emplaw.co.uk/free/i87.htm wrongful dismissal and www.emplaw.co.uk/free/data/047003.htm implied terms in employment contracts/duties of employer ).
GENERAL LAW
(i) Criminal Justice and Public Order Act 1994; and
(ii) Public Order Act 1986;
(iii) Protection from Harassment Act 1997 s.1 and Protection from Harassment Act 1997 s.3.
(iv) www.emplaw.co.uk/free/h42.htm Human Rights/Human Rights Act 1998.
IMPLIED LAW
There is an implied term in employment contracts that “the employer shall render reasonable support to an employee to ensure that the employee can carry out the duties of his job without harassment and disruption by fellow workers” (Arnold J. in Wigan Borough Council v Davies 1979 ICR 411, quoted with approval by the House of Lords in Waters v Commissioner of Metropolitan Police 2000 ICR 1064, HL
In the Waters case the House of Lords also quoted Spring v Guardian Assurance plc 1994 ICR 596 and Wetherall (Bond Street W1) Ltd v. Lynn [1978] 1 WLR 200 as authority for the proposition that the Courts recognise a common law duty on an employer to take care of his employees, including a duty to prevent ill treatment or bullying, quite apart from statutory requirements.
As always, the position in any particular case will depend on the facts and the House of Lords was careful to point out that “it is not every course of victimisation or bullying by fellow employees which would give rise to a cause of action against the employer, and an employee may have to accept some degree of unpleasantness from fellow workers. Moreover the employer will not be liable unless he knows or ought to know that the harassment is taking place and fails to take reasonable steps to prevent it”.
ACAS (see ACAS ) publish two advisory leaflets titled “Bullying and harassment at work”, one being “Guidance for employees” and the other “A guide for managers and employers”.
WHAT WE DO
HR & Diversity Management specialises in Conflict Management issues and is currently working on an `Alternative to Dismissal’ where an employee or senior manager is found responsible for bullying or harassment in the workplace.
HR & Diversity Management conducts confidential, independent investigations where employees lodge formal grievances and has written a series of `Step By Step Guides’ for Employers and line managers.
The introduction of the Dispute Resolution regulations meant that every Employer needed to respond in accordance with the guidelines laid down whenever an employee complains formally. Training is aimed at; HR professionals, senior managers and line managers – in fact anyone who is responsible for managing people! These seminars and training sessions are customised, developed and delivered in accordance with the client’s needs.
For further information on any of the above, call us on 01793 338888 or email us on admin@hrdiversity.co.uk.
2011: The following are areas of expected law change this year, which we will report on over coming months.
Default Retirement (see above)
Maternity & Paternity Leave
Flexible Working
Equal Treatment for Agency workers
The Equality Act 2010
Bribery Act 2010
Annual Compensation Limit increases
New rates for statutory maternity and sick pay
Travel expenses will not count towards payment of National Minimum Wage
