Employment Law Update : Where are we? Stuart Chamberlain

Programme

A NEW UNFAIR DISMISSAL REGIMEDEVELOPMENTS IN DISCRIMINATION LAW

AMENDMENTS TO TUPEWHAT’S IN STORE?SELECTED and RELEVANT CASE LAW 2013

Coalition Government’s employment law policy – a reminder

Employment Law Review throughout the life of government

Remove regulatory burdens – The Red Tape Challenge – A “light touch”

Remove barriers to “flexible, effective and fair” labour market

Aim to support employers, individuals and their families Better information & guidance (e.g. the Employer’s

Charter) Encourage parties to settle rather than go to ET - &

save money!

The relevant legislation

Enterprise and Regulatory Reform Act 2013Growth & Infrastructure Act 2013Collective Redundancies and Transfer of

Undertakings (Protection of Employment) (Amendment) Regulations 2014

Children and Families Act 2014

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1. CHANGES TO UNFAIR DISMISSAL REGIME – including REDUNDANCY

Changes to unfair dismissal- a brief reminder

Change in qualifying period increased from one to two years

Cap on compensation for unfair dismissal: employee’s wages for 12 months or current cap of £76,574 – whichever is the lower.

New unfair dismissal claim – where the reason for dismissal is the employee’s political opinion or affiliation

Introduction of Settlement Agreements Introduction of Fees at Employment Tribunals[ And 2014 : referral of all claims to ACAS for Early

Conciliation

Implications for LA employers

Obviously now more difficult for employees to bring claim of unfair dismissal. Claims by other routes?

Will trade unions be able to fund multiple claims? Implications of announcement of fall in claims?“Whistleblowing” regime: new liabilities for

employerResponse to new claims for dismissals on grounds of

political opinion or affiliation (the Redfearn case)?

RedundancyEmployees on fixed-term contracts excluded from

collective consultation obligations (but agency workers?)

Minimum consultation period reduced from 90 days to 45 days (where 100+ employees are affected within 90 days’ period)

BUT upper limit on protective award remains 90 daysACAS non-statutory code of practice “How to manage

collective redundancies” – checklist of key points“Woolies” case referred to CJEU (legality of “one

establishment” in legislation)

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2. Changes to DISCRIMINATION Law

DISCRIMINATION: A CLIMATE CHANGE?

Significant changes to EHRCRemoval of third party harassment: now

what?Review of Public Sector Equality Duty and

specific equality duties – not fit for purpose? Discrimination questionnaire procedure

repealed – implications?

3. AMENDMENTS TO TUPE 2014

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Amendments to TUPE 2014

Amendments to TUPE 2006 in January 2014New BIS guidance on TUPE Major reform or merely tinkering?

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Amendments to TUPE 2014

SPC retained with new test: “fundamentally the same”

Changes to collective agreements - the “static” approach to liability for terms and conditions

(pay) - possible variation after 12 months subject to “overall”, no

less favourable

Amendments to dismissal regime ( new test: transfer the reason; “connection with the transfer” removed from legislation)

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Amendments to TUPE 2014: variation of terms

More opportunities for transferee to vary terms and conditions:Changes void if transfer the reason, unless:ETO reason entailing changes in workforce- and new ETOExpress term in contract(mobility or flexibility clause) (location)Collective agreements ; after 12 months but , overall, new terms must be no “less favourable”And, according to BIS guidance, where positive/ beneficial for employee – can this be right?

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Amendments to TUPE 2014: variation to terms

BUT “Harmonisation” remains unlawful ( contrary to EU law - see Daddy’s Dance Hall) – UK to consult with EU partners –

So what can the transferee do? Only safe legal way is reorganisation – satisfies ETO reason entailing changes in workforce

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Amendments to TUPE 2014

Transferee can start to consult pre-transfer – subject to transferor’s approval – how realistic?

ETI – now 28 days All came into effect on 31 January 2014 – apart from ELI,

which will change on 1 May 2014.

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WHAT’S IN STORE ? LEGISLATION ETC 2014 - 2015

Legislation 2014: in place in April 2014

ACAS Early conciliation

—The 4-stage process —Potential problems?—Will it work?

Financial penalties in ET for employers (£5000?)-

Legislation 2014 continued

Right of flexible working extended to all employees with 26 weeks’ service – but delayed (to end of June 2014?)

—Outline of the scheme—Acas Code of Practice & Guidance—Implications and problems?

New Health & Work Service for employees absent for 4 weeks due to sickness (spring 2014) & revision of “Fit-Note (?)

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Consultations 2014

Consultation on ACAS Disciplinary & Grievance Code

Zero Hours Contracts – to improve transparency

Caste discrimination – but see ET case

And remember need for changes in Working Time Regs – carry over of annual leave

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Legislation 2015

Flexible/ Shared Parental Leave – parents will have the ability to “split” 52 weeks of parental leave at any point from 2 weeks after birth

Time off for Ante-natal appointments - fathers and other qualified persons will be entitled to time off work to attend 2 ante-natal appointments with expectant mothers.

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5. CASE LAW in 2013: a selection

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Case law - 1

USDAW v Ethel Austin Ltd (in administration) – the “Woolworths’ case” Collective consultation obligation is triggered by 20 in business/organisation – regardless of the number at individual sites-referred to CJEU.

Wright v North Ayrshire Council: for constructive dismissal claim the employer’s breach must be part of the cause of resignation, not the effective cause.

Toal v GB Oils: EAT ruled that the right to choose companion was the employee’s choice and the employee’s alone -Acas advice misleading – Code to be revised.

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Case law - 2

Wade v Sheffield Hallam University (EAT): waiver of competitive interview not a reasonable adjustment – Archibald will not always apply

Sohbi v Commissioner of Police of the Metropolis (EAT): new second limb of test of disability: whether the impairment impacts on someone’s participation in professional life

City and Council of Swansea v Gayle (EAT): Fraudster not unfairly dismissed & no breach of Article 8 (right to privacy) or of Employment Practices Code ( DPA).

Working Time cases

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Case law - 3

Redundancy – alternative work – unfair selection:

Somerset County Council v Chaloner

City of Newcastle Council v Ford

Lessons for employers and HR?

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Conclusions & Questions

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