Post on 10-Jun-2015
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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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