Legislation 2012

January

Equality Act public sector equality duty: workforce data

Proposed date in force: 31 January 2012

The Equality Act 2010 (Specific Duties) Regulations 2011 require public sector bodies with more than 150 employees to publish data on equality in their workforces by 31 January 2012. Schools with 150 or more employees have until 6 April 2012 to publish the data.

For further details see the Equality Act section of the website.

Consultation Closure Dates

Following last year’s numerous proposed employment law reforms, the closure date for calls for evidence on the effectiveness of the Transfer of Undertakings (Protection of Employees) Regulations 2006 and for the collective redundancy rules is 31st January 2012. This may result in formal consultations taking place later in 2012.

February

Employment Rights (Increase of Limits)

The Employment Rights (Increase of Limits) Order comes into force on 1st February 2012 and will increase the limits on certain employment tribunal awards and other amounts payable under employment law.

These changes include:

• An increase in the maximum compensation award for Unfair Dismissal claims – from £68,400 to £72,300
• An increase of the limit on the amount of a week’s pay which is used to calculate statutory redundancy pay and the basic award for Unfair Dismissal claims – from £400 to £430 per week
• An increase in the minmum basic award in cases where the dismissal of an employee was by virtue of health and safety issues, employee representation, trade union activities or occupation pension trustee issues – from £5,000 to £5,300.

These new rates will only apply from events occurring on or after 1st February 2012. Therefore, for example, if a dismissal occurs before 1st February 2012 the current rates will continue to apply.

March

• Parental Leave Increase is Delayed until March 2013

The increase in statutory parental leave following the birth or adoption of a child from three months to four months will now be introduced in March 2013, instead of March 2012. Following the ongoing Modern Workplaces policy development, the Government will utilise the additional year’s grace provided in the EU Directive on Parental Leave to delay this legislation.

Further changes following the Directive include a new flexible system of shared parental leave and an extension of the right to request flexible working.

• Consultation Closing Dates

Following the Government’s Consultation on Resolving Workplace Disputes, the deadline for providing a response to the proposals on introducing fees for lodging claims in the Employment Tribunal and Employment Appeal Tribunal is 6th March 2012.

April

Equality Act public sector equality duty: schools and workforce data

Proposed date in force: 6 April 2012

The Equality Act 2010 (Specific Duties) Regulations 2011 require schools with more than 150 employees to publish data on equality in their workforces by 6 April 2012. Other public sector bodies with 150 or more employees have to publish the data by 31 January 2012.
For further details see the Equality Act section of the website.

• Qualifying Period for Unfair Dismissal Claims Increases from One Year to Two Years – For New Employees Starting On or After 6th April 2012

The Department for Business, Innovation and Skills has confirmed that the increase will only apply to people whose employment commences on or after 6 April 2012; employees already in post will not be affected.

Therefore, employees with 11 months’ service on 6th April 2012, for example, will still only have to wait one more month before being entitled to bring a claim for unfair dismissal.

The regulations to extend the qualifying period will be subject to Parliamentary debate and will be published shortly.

• Expected employment reforms to take effect

Further to our recent articles and email updates, the Government has proposed numerous changes to employment law which are expected to take effect from April 2012 and into 2013.These changes are expected to be introduced in two tranches. The first changes expected to be implemented on 6th April 2012 include:

• The qualifying period for Unfair Dismissal claims will increase from 1 year to 2 years (as outlined above)



A number of Tribunal reforms, such as:

• Witness statements being taken as read during Tribunal hearings
• Removal of witness expenses
• Judges sitting alone in unfair dismissal cases
• Changes to limited for costs awards and deposit orders

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Legislation – 2012

• Unpaid parental leave to increase to 4 months (see above for further information)
• Early conciliation in employment claims
• Financial penalties for employers
• Judges sitting alone in the Employment Appeal Tribunals
• Amended formulae for updating Tribunal awards and redundancy payments
• Amendments to the Working Time Directive to allow holiday to be carried forward in limited circumstances
• Increases in maternity, paternity and adoption pay
• An increase in statutory sick pay



Furthermore, following Mr Justice Underhills review of the Employment Tribunal Rules of Procedure, a revised procedural code is expected in 2013, subject to public consultationand parlimentary approval

October

Personal Accounts scheme starts up under Pensions Act 2008

Proposed date in force: October 2012 (for employers with 250 or more members)

The Pensions Act 2008 provides that employers must automatically enrol all eligible employees participating in a workplace pension scheme into the employer’s pension scheme or into the new personal accounts scheme under the National Employment Savings Trust pension scheme. The threshold for automatic enrolment is aligned with the personal allowance for income tax. Employers are not required automatically to enrol individuals employed for less than 12 weeks. To encourage participation, employees pension contributions will be supplemented by employers’ contributions and tax relief.

The full timetable for auto-enrolment is as follows:

Employer size (by PAYE scheme size) or other description	From	To
250 or more members	1 Oct 2012	1 Feb 2014
50 to 249 members	1 April 2014	1 April 2015
Test tranche for les than 30 members	1 June 2015	30 June 2015
30 to 49 members	1 August 2015	1 Oct 2015
Less than 30 members	1 January 2016	1 April 2017
Employers without PAYE schemes	1 April 2017	-
New employers April 2012 to March 2013	1 May 2017	-
New employers April 2013 to March 2014	1 July 2014	-

Details of the scheme can be viewed on the DWP website. The Pensions Act 2008 can be viewed on the UK legislation website.

Other developments likely to be progressed in 2012

• Amendment of whistleblowing rules so that disclosure about breaches of employment contracts are no longer covered
• Simplification of compromise agreements
• Consultation on the use of ‘protected conversations’ between employers and employees to reduce the risk of disputes
• Consultation on a rapid resolution scheme as an alternative to Tribunals for low value or straightforward cases
• Review of the ACAS Disciplinary and Grievance Code
• a notification of retirement was issued by the employer prior to 6 April 2011; and
• the date of retirement is before 1 October 2011; and
• the requirements of the old statutory retirement procedure are met.

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Case Watch

CASE AND COURT	KEY QUESTIONS TO BE DETERMINED
Meister v Speech Design Carrier Systems GmbH ECJ	Discrimination – whether, under EU law, a worker who does not obtain a post for which he meets the requirements has the right to find out whether another applicant obtained the post and why. If so, whether there a presumption of discrimination against the worker if the employer does not disclose this information.
Hörnfeldt v Posten Meddelande AB ECJ	Age discrimination – whether a national retirement provision to which there is no exception can be appropriate and necessary to achieve the aim pursued.
Kenny and others v Minister for Justice, Equality and Law Reform, Minister for Finance, Commissioner of An Garda Síochána ECJ	Equal pay – what an employer must do to establish objective justification where there is prima facie indirect gender discrimination in pay under the Equal Pay Directive.
Ladele and McFarlane v United Kingdom (being heard with Eweida and Chaplin v United Kingdom)ECHR	Right to manifest religion or belief - whether employees’ rights to manifest their religion or belief, as protected by the European Convention on Human Rights, were breached where they were disciplined for refusing to carry out civil partnership ceremonies/provide psycho-sexual counselling to same-sex couples.
NHS Leeds v Larner Court of Appeal (to be heard in March 2012)	Holidays – employer’s appeal against the EAT’s decision that a worker who had been on sick leave for an entire leave year (and had not taken any holiday during that period), was entitled to pay in lieu of the year’s unused statutory holiday entitlement on termination.
Beddoes and others v Birmingham City Council and other cases Court of Appeal	Equal pay – council’s appeal against the EAT’s decision that female school workers could compare their pay with that of men employed at other council establishments on the grounds that employees were in the “same employment” for the purposes of the Equal Pay Act 1970.
Begraj and another v Heer Manak Solicitors Employment Tribunal (to be heard in March 2012)	Race discrimination – whether claims of “caste discrimination” can be brought under the current race discrimination provisions.
Okoro and another v Taylor Woodrow and others Court of Appeal (Magrath LLP instructed)	Discrimination – whether the act of banning a worker from his place of work is a one-off act with continuing consequences or a continuing act, therefore determining whether a claim was presented in time.

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: Chris.Magrath@magrath.co.uk
Adele Martins	Tel: (020) 7317 6719	Email: Adele.Martins@magrath.co.uk
Susan Thompson	Tel: (020) 7317 6750	Email: Susan.Thompson@magrath.co.uk