Every year brings with it a raft of new legislation and legal points for employers to grapple with. As we start yet another year of change to employment law, we look at the 10 most important developments in the pipeline.
1. Changes to TUPE
The proposed new regulations come into force on 31 January 2014. Some of the key changes to the TUPE regime which will be introduced are:
- The obligation to provide employee liability information will change from 14 days to 28 days before the transfer date for transfers taking place on or after 1 May 2014.
- Change of location will now be capable of amounting to an economic, technical or organisational reason (ETO).
- A transferee may meet the requirements for collective redundancy consultation, if the transferor agrees, by consulting (or starting to consult) representatives of transferring staff about proposed collective redundancies prior to the transfer taking place.
- To constitute a Service Provision Change, the activities carried out after the transfer must be "fundamentally the same" as those carried out before the transfer.
- Micro businesses will be able to inform and consult with employees directly if there are no recognised independent union or existing appropriate representatives for transfers taking place on or after 31 July 2014.
2. Change to Discrimination Questionnaires
From 6 April 2014 discrimination questionnaires will be abolished and replaced with a new informal process. Many businesses will welcome this change as discrimination questionnaires can be lengthy, time consuming and burdensome to complete.
3. Introduction of early pre claim conciliation
From 6 April 2014 claimants will be required to submit details of their complaint to ACAS, where they will be offered the option of pre claim conciliation for one month before they can lodge the claim with the Tribunal.
4. Extension of the Right to Request Flexible Working
The right to request flexible working will be extended to all employees with 26 weeks service. Originally this was planned for April but the Department for Business, Innovation and Skills has announced that this will be delayed until "an appropriate date as soon as possible this year". When introduced, employers will no longer be required to follow the statutory procedure when responding to flexible working requests, but must instead consider such requests "reasonably".
5. Abolition of Statutory Sick Pay Record Keeping Obligations
Also with effect from 6 April 2014, the statutory sick pay record keeping obligations will be abolished and employers will be able to keep records in a way which better suits their organisation.
6. Financial penalties on employers losing at Tribunal
From 6 April 2014 the Tribunal will have discretion to order an employer to pay an uplift of up to 50% of any financial award made to an employee, capped at £5,000, where the employer is in breach of employment rights and the "employer's breach has one or more aggravating features." What will constitute an aggravating feature remains to be seen.
7. Greater Tribunal Powers
During 2014, on a date to be confirmed, the Tribunal will also be given the power to order an employer to carry out a compulsory pay audit where it is found guilty of gender discrimination in relation to equality of pay provisions.
8. Introduction of the Health and Work Assessment and Advisory Service ("HWAAS")
The HWAAS will offer free occupational health assistance to employees, employers and GPs including an independent assessment of employees who have been absent from work due to illness for 4 weeks. It is due to be introduced in spring 2014 and it is intended to provide a new approach to managing sickness absence. This change could really help employers in dealing with sickness absence issues.
9. Clarification of whether holiday payments include overtime and commission payments
In Neal v Freightliner Ltd ET/1315342/12 the Tribunal held that an employer should take overtime into account when calculating holiday pay where such overtime is "intrinsically linked to the performance of the employee's tasks." The employer has appealed to the EAT and the appeal hearing is due this year.
Secondly, judgment is pending form the European Court of Justice in the case of Lock v British Gas Trading Limited and others (C-539/12) on the question of whether a worker, whose pay comprises basic pay and sales-related commission, should receive holiday pay of more than just basic pay.
10. Collective Consultation - Is there such a thing as more than one establishment?
In June 2013 the EAT ruling in the "Woolworths" case was published, which effectively changed the law on collective consultation. Historically, the duty to collectively consult only arose where the employer proposed to dismiss 20 or more employees "at one establishment." The EAT held that it was irrelevant whether the proposed dismissals were across one establishment or across several; the duty to collectively consult arises as soon as an employer is looking to make 20 or more employees redundant across its business. At the appeal hearing it was decided to refer the case to the Court of Justice of the European Union.