Legislation 2013

 

March 2013 – Parental Leave Increased

The Parental Leave Directive (2010/18/EU) came into force on 8 March 2013. The Directive increase of parental leave entitlement from 13 weeks to 18 weeks.

April 2013 – Collective Redundancy Consultations

The collective redundancy consultation period for 100 or more employees was reduced on 6 April 2013 from 90 days to 45 days. In addition, employees whose fixed-term contracts are due to expire are now excluded from consultation requirements.

June 2013 – Enterprise and Regulatory Reform Act 2013 (ERRA 2013)

Parts of the ERRA 2013 come into force on 25 June – these include:

  • Employment Appeal Tribunal judges to sit alone;
  • The qualifying period for unfair dismissal will not apply where the main reason for dismissal is the employee’s political opinions or affiliation;
  • Changes to whistleblowing legislation, which includes:
    • Introducing a ‘public interest’ requirement into the legislation. ‘Public interest’ is not defined, but will probably mean something that affects a class of people and not just one individual. The disclosure does not have to be in the public interest; it is sufficient if the worker reasonably believes it to be in the public interest;
    • Expansion of whistleblowing protection to those who make disclosures in bad faith (i.e. motivated primarily by money or spite, rather than a desire to put right a wrong). However, if the Tribunal thinks that the disclosure was made in bad faith, then it will have the power to reduce compensation by up to 25%;
  • Power for the Government to amend the Equality Act 2010 to provide that caste is an aspect of race, therefore making caste discrimination unlawful. It is not yet known if or when this power will be exercised;
  • Power for the Secretary of State to order a variation of the statutory limit on unfair dismissal compensatory awards. This will allow compensatory awards to be capped at the lower of one year’s gross pay (excluding pension contributions, benefits in kind and discretionary bonuses) and the existing limit.

July 2013 – Employment Tribunal Fees

Fees will be introduced for claims submitted on or after 29 July 2013. Claimants will have to pay in two stages; firstly on issuing a claim and then prior to the hearing. The precise amount will depend on the type of claim and the number of claimants. Claims will be split into two levels; Level 1 claims include claims for equal pay, unpaid wages, breach of contract, holiday pay, redundancy pay and some time off rights. Level 2 claims include unfair dismissal, detriment and discrimination claims.

Fee type

Level 1

Level 2

Issuing

160

250

Hearing

230

950

Tribunal judges will have the power to order an unsuccessful party to reimburse any fees paid by the successful party, although this will be at the judge’s discretion rather than automatic.

 

September 2013 – Employee Shareholder Rights

The Growth and Infrastructure Act 2013 will insert a new section 205A into the Employment Rights Act 1996 providing that an employer and employee can agree that, in consideration of the individual becoming an ‘employee shareholder’ (instead of just an employee), the company will issue or allot a minimum of £2,000 worth of shares to the individual, with any gains made on the first £50,000 of shares being exempt from capital gains tax.

An employee shareholder will have the same rights as an employee with the following exceptions:

  • No right to request time off for study or training;
  • No right to make a flexible working request (aside from employees returning from parental leave, who will be restricted from making a formal request for flexible working to the period of 14 days beginning with their return to work);
  • No unfair dismissal rights (except in health & safety cases, automatically unfair dismissal cases or cases where the dismissal is discriminatory under the Equality Act 2010);
  • No right to a statutory redundancy payment;
  • The employee must give 16 weeks’ notice if they want to return early from statutory maternity, adoption or additional paternity leave.

The House of Lords twice rejected the new legislation, which prompted the Government to make a number of concessions before the Bill was passed. These included:

  • Protections from dismissal or other detriment for existing employees who refuse to become employee shareholders;
  • Jobseeker’s allowance cannot be withdrawn if an employee shareholder job is refused;
  • An offer of employee shareholder status must include a statement explaining the employment rights that would be sacrificed and the rights attaching to the shares;
  • The individual must receive advice about the offer from an independent solicitor, barrister, legal executive, union official or advice centre. The employer must meet the reasonable costs incurred in receiving this advice, regardless of whether the offer is accepted;
  • Individuals agreeing to the offer will be entitled to a seven-day ‘cooling-off’ period from the day the legal advice is received.

October 2013 – Changes to TUPE

The Government launched a consultation on proposed changes to TUPE in January 2013, which ended in April 2013. These proposals are expected to come into force in October 2013 and include:

  • Removing the obligation to provide employee liability information, but making it clear that transferors should disclose information to the transferee to aid the information and consultation process;
  • Amending the provisions restricting changes to terms, giving protection against dismissal and giving the right to resign in response to a substantial change in working conditions, in each case to reflect the wording of the underlying Directive and/or ECJ case law more closely;
  • Providing that ‘entailing changes in the workforce includes changes to the workforce’s location;
  • Enabling the transferee to consult with the transferring employees on collective redundancies prior to the transfer;
  • Repealing the Regulations relating to ‘service-provision changes.’ The Government accepts this change would require a lead-in period. It is doubtful that these will be introduced in October 2013 as the Government is currently consulting about how long the lead-in period should be.

The Government is also seeking views on whether transferors should be able to rely on the transferee’s ETO (Economic, Technical or Organisational) reasons in respect of pre-transfer dismissals.

Looking Ahead to 2014 and 2015

April 2014 – Mandatory pre-claim ACAS conciliation will be introduced under ERRA 2013.

2015 – Introduction of new system of shared parental leave.

Case Watch

CASE AND COURT

KEY QUESTIONS TO BE DETERMINED

Alemo-Herron and Others v Parkwood Leisure Ltd

 

 

 

 

ECJ

Transfer of Undertakings – whether Article 3(1) of the Acquired Rights Directive precludes national courts from giving a ‘dynamic’ interpretation to Regulation 5 TUPE 1981. A dynamic interpretation would give transferring employees the right to benefit from future pay rises or other changes agreed between the unions and the transferor after the transfer.

R (T and others) v Chief Constable of Greater Manchester and others

 

 

 

 

Supreme Court

Recruitment – appeal against the Court of Appeal’s decision that blanket disclosure of all convictions and cautions currently required by the statutory scheme for checking criminal records may unjustifiably interfere with an individual’s right to respect for private life under Article 8 of the European Convention on Human Rights.

Hounga v Allen (nee Aboyade-Cole) and another

 

 

 

Supreme Court

Illegality – appeal against the Court of Appeal’s decision that an employee who entered the UK dishonestly and had no right to work in this country, was prevented by the doctrine of illegality from pursuing a race discrimination claim against her UK employers.

Rowstock Ltd and another v Jessemey

 

 

 

 

Court of Appeal

Discrimination – appeal against the EAT decision that the Equality Act 2010 does not provide protection against post-employment victimisation. The EAT acknowledged that it would be tempting to read words into the legislation so as to grant the relevant protection and to ensure compliance with EU law.


To take a look at some judgements in other recent cases please click here

 

For further information please contact one of the Partners in the Employment Practice:

Chris Magrath Tel: (020) 7317 6713 Email: [email protected]
Adele Martins Tel: (020) 7317 6719 Email: [email protected]
Susan Thompson Tel: (020) 7317 6750 Email: [email protected]