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Employment Law Update : where are we? Stuart Chamberlain
Programme • GOVERNMENT REFORMS TO EMPLOYMENT LAW 2012-2015: IMPLICATIONS FOR LOCAL AUTHORITIES • Review of 2013 • What’s happening in 2014? • And 2015? • 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” • Employment Law is “costly, time-consuming and overly bureaucratic” • 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) • Whole series of Consultations and “Calls for Evidence” • Encourage parties to settle rather than go to ET - & save money!
The relevant legislation • Enterprise and Regulatory Reform Act 2013 • Growth & Infrastructure Act 2013 • Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 • Children and Families Bill – some delay
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 £74,200 – 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 ETs • And 2014 : referral of all claims to ACAS
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? • “Whistleblowing” regime: new liabilities for employer • Response to new claims for dismissals on grounds of political opinion or affiliation (the Redfearn case)?
Redundancy • Employees 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 days • ACAS 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)
DISCRIMINATION: A CLIMATE CHANGE? • Significant changes to EHRC • Removal of third party harassment: now what? • Review of Public Sector Equality Duty and specific equality duties – not fit for purpose? Recommendations? • Discrimination questionnaire procedure to be repealed (6 April 2014)
Reform of TUPE: background • Aim of reforms was to avoid “gold plating” i.e. to go no further than minimum requirements of the ARD , unless there was a clear economic rationale for doing so • “Call for Evidence" and Consultation – the BIS response • Major reform or merely “tidying up”?
(i) Service Provision Changes (SPC) • SPCs, despite being the most obvious example of “gold plating” of UK law, are retained • New test: activities must be “fundamentally the same” before and after the transfer – already acknowledged in case law • Provides certainty – good news for contractors? • Any need for change in procedures?
(ii) Collective Agreements • Transferee not bound by any collective agreement agreed after the date of the transfer, if not party to bargaining - embraces the “static “ approach & merely enacts CJEU’s decision in Parkwood Leisure Ltd v Alemo-Herron • Terms derived from collective agreement can be negotiated after one year, provided that overall effect is “no less favourable” to employees”
Reform of Collective agreements & TUPE: Implications • A relief for contractors! • Discontented workforce? • Future problems? • What does “no less favourable” mean? • Any variation must have agreement of employees?
(iii) TUPE & Dismisssal • Change in definition of automatically unfair dismissal: “connected with the transfer” too wide: now no protection where the reason for the dismissal is the transfer, unless there is an ETO reason entailing changes in the workforce • “ETO” reasons to include change in place of work (“location”) • No amendment of Regs. 4(90 and 4 (10) (material detriment; changes to working conditions • Transferor may not rely on transferee's ETO for dismissal.
(iv) Variations to terms & conditions • The general rule of contract change – need for agreement – does not apply in TUPE regime • Any variation void where sole or principal reason for the change is the transfer • “connection with the transfer” removed from legislation
(iv) Variations to terms & conditions cont. • Changes not by reason of the transfer arepossible – where positive for employee • Changes to collective agreement are possible ( see above) • BUT “Harmonisation” remains unlawful ( contrary to EU law - see Daddy’s Dance Hall) – UK to consult with EU partners – what can the transferee do?
(v) Information and Consultation • Extension of time for provision of employee liability information (ELI) from 14 to 28 days • Pre-transfer consultation between transferee & transferor’s workforce may count towards collective redundancy consultation ( under s.188 TULCRA 1992) • Transferor has to agree • Transferee has to give written notice to transferor • – potential problems?
Legislation 2014 • Right of flexible working extended to all employees with 26 weeks’ service – but delayed • ACAS Early conciliation (6 April 2014) • Four-step process (?) • Will it work? • New Health & Work Service for employees absent for 4 weeks due to sickness (spring 2014) & revision of “Fit-Note” • Financial penalties in ET for employers (£5000?)- April 2014
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
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.
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.
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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