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