The last two years have brought an unprecedented level of changes to employment law including some that have provoked extensive discussion such as the increase of the qualifying period for unfair dismissal claims in 2012 and the introduction of employee shareholder status in 2013.
2014 is going to be another year which will bring a raft of changes to employment law and employers will need to be ready. The following is a summary of some of the main changes that are due to take place.
31 January 2014: TUPE
To kick start the year, changes are to be made to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) with these changes coming into force on 31 January 2014. After extensive consultation, the Government has abandoned its proposal to repeal the service provision change rules. A service provision change is a relevant transfer under TUPE and occurs where (a) a client outsources activities to a contractor; (b) the client engages another contractor in place of the first contractor; or (c) the client brings the work “in-house”. The changes to be made to TUPE will now be as follows:
- For employees to transfer under the service provision change rules, activities carried on post-transfer must be “fundamentally or essentially the same” as those activities carried on before transfer.
- The requirement to provide employee liability information will now have to be given earlier, at least 28 days before transfer, replacing the current requirement of 14 days. This applies to transfers taking place on any date falling 3 months or more after the enactment of the new TUPE Regulations.
- A change in workplace location following transfer will now be considered an economical, technical or organisational (“ETO”) reason and will not lead to automatic unfair dismissal.
- Employers may vary terms under a collective agreement one year after the transfer provided that the variations are no less favourable to the employee. A collective agreement is an agreement or arrangement between employers and one or more trade union, which covers terms and conditions of employment, and is only binding if it is in writing and stated to be so.
- The period for TUPE consultation by the transferee prior to the transfer will count towards the period for collective redundancy consultation post-transfer.
6 April 2014:
Early conciliation
The Enterprise Regulatory Reform Act 2013 will introduce a new mandatory pre-claim conciliation procedure. Before submitting a claim to an Employment Tribunal, claimants will have to lodge details of their claim with ACAS, who will provide a conciliation officer to the parties to engage in conciliation for a period of 1 month. The conciliation process will “stop the clock” on the usual 3 month time limit for submitting employment claims and if the parties cannot resolve the dispute within the one month period, the claimant may proceed with their claim to an Employment Tribunal.
Financial penalties
Employment Tribunals will have discretionary powers to impose financial penalties on employers where a breach by the employer of the employee’s employment rights has “aggravating features” such as negligence or malice. Penalties will be between £100 and £5,000 and will be reduced by 50% if an employer pays within 21 days.
Discrimination questionnaires
The Enterprise and Regulatory Reform Act 2013 repeals section 138 of the Equality Act 2010, which allowed employees and ex-employees to serve questionnaires on employers requiring information on alleged discrimination for the purposes of potential or actual discrimination claims.
Flexible working
The Children and Families Bill amends the Employment Rights Act 1996 to extend the right to request flexible working to all employees (and not just parents or carers) who have 26 weeks continuous service. The current statutory procedure for considering such requests will be replaced with a requirement that employers deal with flexible working requests in a reasonable manner; requests may be refused on business grounds.
Spring 2014: Sickness
A health and work assessment and advisory service will be available for employees who have been off sick for at least 4 weeks to encourage early return to work.This will be state funded and assessments will be carried out by occupational health professionals.
October 2014: Equal pay audits
Employment Tribunals will have powers to order employers to carry out an equal pay audit, where they may have breached equal pay legislation. There will be exceptions where: (i) the employer has carried out an equal pay audit within the previous 3 years; (ii) it is clear, without the need for an audit, whether any action is required to prevent equal pay breaches occurring or continuing; (iii) the Tribunal is satisfied that there are no other equal pay breaches; and/or (iv) the Tribunal considers the disadvantages of carrying out an audit outweigh its benefits.
We will update you on any other significant changes throughout the year. Other reforms in the pipeline (possibly for 2015) include shared parental leave, parental leave and pay for parents with children through surrogacy and increasing the school leaving age to 18 years.