As we begin to look forward to employment law changes in 2015, let us cast our minds back to this year and consider some of the key changes that took place...
Back in January this year, we saw new TUPE Regulations coming into force. One of the more significant changes was the modification of the rules relating to a ‘service provision change’. Now for there to be a TUPE service provision change the activities carried on after the change in service provision must be “fundamentally” the same as those carried on before it. There were also changes to the provision of Employee Liability Information. Now information will have to be given 28 days before the transfer, rather than the previous 14 days (although there is an ongoing duty on the out-going employer to keep the information updated). Also, a change of workplace location following a transfer will expressly be an economical, technical or organisational (ETO) reason for dismissal. This means genuine place of work redundancies won’t be automatically unfair.
In February, UNISON’s challenge to employment tribunal fees failed. The court held it was ‘premature’ and the statistical data was not conclusive that fees had had a detrimental impact on access to justice.
A busy month with the introduction of the ACAS Early Conciliation Scheme (although not mandatory until 6th May 2014.) This new scheme requires any claimant wishing to bring a claim to an employment tribunal to have first contacted ACAS. Pre-claim early conciliation (EC) will last initially for one month, although it could be extended by a further 2 weeks if settlement is close. There is no obligation on either the claimant or respondent to participate; all the claimant needs to demonstrate is that they have contacted ACAS and has a reference number provided by ACAS, allowing them to proceed with their employment tribunal claim.
April 2014 also saw Discrimination Questionnaires abolished to be replaced with an informal ‘question-style’ approach and accompanying ACAS guidance. Also, a “Loser’s Tax” was introduced where a losing respondent could be ordered to pay between £100 and £5,000 as a penalty for the way it has conducted itself in the litigation and whether there are any aggravating factors. This penalty may be applied in any case. The amount of financial penalty will be at the tribunal’s discretion and is reduced by 50% if paid within 21 days. The penalty payment is paid to the tribunal (and ultimately the Treasury) rather than to the claimant.
Compensation awards also increased in April. Maximum compensation for unfair dismissal increased from £74,200 to £76,574 (subject to an overall cap of 12 months’ pay, whichever is the lowest figure) and a week’s pay increased from £450 to £464. Statutory rates of pay in respect of maternity, paternity and adoption leave increased from 6th April from £136.78 to £138.18 per week and Statutory Sick Pay increased from £86.70 per week to £87.55. There were also changes to the Percentage Threshold Scheme.
Health Advisory Service
From April 2015, the government is launching its new health and work assessment and advisory service. The service will offer free occupational health assistance for employees, employers and GPs either online or via the telephone. The service can provide an occupational health assessment after four weeks of sickness absence.
The issue of holiday pay calculations raised its head in May with the ECJ decision in Lock v British Gas. The Euroepan court held that Mr Lock’s holiday pay should have included commission pay and he was being pensalised financially by being paid holiday at basic pay only. Commission pay was part of his normal pay. This case will now return to our courts in the Spring for a decision.
In June, the challenge to the 12 months overall compensation cap on unfair dismissal compensation failed.
June also saw changes to the Flexible Working rules. Now all employees with at least 26 weeks’ continuous service are able to apply to work flexibly. Also, the rigid procedure with meetings being held within a set timeframe was also abolished to be replaced by a duty to manage requests ‘reasonably’. Employers are still able to reject a request on Statutory Business Grounds. ACAS Guidance was also published and a Code of Practice.
In September ACAS published guidance on drafting and implementing Dress Codes.
New rights for fathers and partners to accompany at antenatal appointments came into force in October. Qualifying individuals will be allowed to take unpaid leave to accompany a pregnant woman to two antenatal appointments, for up to a maximum of six and a half hours for each appointment. Changes to Employment Tribunal powers also came into effect from 1 October 2014. Now Employment Tribunals will have the power to order equal pay audits where an employer is found guilty of gender discrimination in relation to contractual or non-contractual pay matters. These will only apply in relation to equal pay claims presented on or after that date. There were also annual rises to the National Minimum Wage as well as changes to the allowances for Military Reservists.
November saw our second major decision on holiday and holiday pay this year. Non-guaranteed overtime must be taken into account for the purposes of calculating holiday pay so held the EAT in Bear Scotland Ltd v Fulton & anor. However, the EAT made clear that such calculations need only be made in respect of Working Time Directive holiday – that is 4 weeks’ holiday a year - and not any additional holiday under the UK’s Working Time Regulations 1998 (the additional 1.6 weeks). Also, the EAT agreed that certain allowances paid to the workers (radius allowance and travelling time payments) fell within the definition of “normal remuneration” for the purposes of calculating holiday pay. Again, only in respect of Working Time Directive leave. How far back could workers seek to recover underpaid holiday pay? Essentially, claims for underpaid holiday pay will be out of time if there has been a gap of more than 3 months between each underpayment.
The Shared Parental Leave Regulations came into force on 1 December; however, they apply to babies due on/after 5th April 2015 (however, if a baby is born early they will apply from birth). For details of what your business should be doing to prepare itself for Shared Parental Leave please see our useful timeline in last weeks People In Focus.
A busy year! Next year looks set to be a busy year for HR, managers and employment lawyers. If there are any questions about the changes this year or any policies that need updating in your business to take account of these changes, please contact our Employment Team on 0118 952 7284 or via our website/email [email protected] . Copies of all our updates can be found on our website www.boyesturner.com
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.