Fox Williams’ “need to know” guide to new employment laws in 2013

Now that the festive period is over and everyone in Government is back at their desks, employment lawyers and HR professionals alike can brace themselves for what will be an action-packed year of employment law reform.  Here are the highlights:

1. February 2013:  Tribunal compensation limits will increase with effect from 1 February 2013.  The limit on the compensatory award for unfair dismissal will increase from £72,300 to £74,200.  The maximum amount of a “week’s pay” for the purposes of calculating statutory redundancy pay or the basic award for unfair dismissal will increase from £430 to £450.
2. March 2013:  The statutory discrimination questionnaires will be abolished, as will the provisions of the Equality Act 2010 relating to the liability of employers for harassment of employees by third parties.  Revised guidance on fit notes are also expected to be issued at this time which will emphasise the importance of assessing an individual’s health condition to work in general and not just for one specific role.
3. March 2013:  Regulations are expected to come into force on 8 March 2013 increasing the amount of unpaid parental leave that can be taken per child from 13 to 18 weeks, although such leave will continue to be capped at four weeks per year.
4. March 2013:  On 1 December 2012, the Criminal Record Bureau (CRB) and Independent Safeguarding Authority merged to form the Disclosure and Barring Service (DBS).  CRB checks were replaced with DBS checks.  The Government intends to launch an “Update Service” from March 2013 which will effectively make DBS checks portable between employers, enabling individuals to register for a check once which will then be automatically updated and available for organisations to check.
5. 6 April 2013:  The collective redundancy consultation period involving 100 or more employees will be reduced from 90 days to 45 days and employees whose fixed-term contracts are due to expire will be excluded from the consultation requirements.  Also on this date, the rate of statutory sick pay is set to increase from £85.85 to £86.70 per week.
6. 7 April 2013:  The standard rate of statutory maternity, paternity and adoption pay will increase from £135.45 to £136.78 per week.
7. April 2013:  A public interest requirement is to be introduced to whistleblowing claims.  This will all but close the loophole in the current legislation which allows individuals to bring whistleblowing claims relating to matters such as a breach of their own employment contract which is not in the public interest.
8. April 2013:  The Growth and Infrastructure Bill 2012-2013 is planned to come into force introducing the concept of employee owners (“employee shareholder”).  Under the new regime, an employer and employee will be able to agree that, in return for an individual being an “employee shareholder” (as opposed to an employee), the employer company will issue or allot a minimum of £2,000 worth of shares to the individual.  This is essentially a ‘shares for rights’ swap in that an “employee shareholder” will not have certain rights afforded to employees (e.g. the right to request time off for training/study, to make a flexible working request, to a statutory redundancy payment and the right not to be unfairly dismissed (subject to certain exceptions)).
9. April 2013:  The Children and Families Bill (not yet published) will be introduced setting out new system of flexible parental leave and flexible working which is currently intended to come into force by 2015.  The Bill is expected to contain provisions extending the right to request flexible working to all employees with at least 26 weeks’ continuous service.  It is also anticipated that the Bill will introduce a new concept of flexible parental leave which will allow parents to choose how to divide up 50 weeks of the leave entitlement between them (i.e. everything except the two week compulsory maternity leave period).
10. Summer 2013:  Changes will come into force meaning that the unfair dismissal compensatory award will be capped at the lower of one year’s pay (excluding pension contributions, benefits in kind and discretionary bonuses) and the existing limit.
11. Summer 2013:  Pre-termination negotiations between employers and employees will become inadmissible in unfair dismissal proceedings (with certain exceptions).  Compromise agreements will also be renamed “settlement agreements”.
12. Summer 2013:  Fees will be introduced in the Employment Tribunal.  The amount of the fee payable will depend on which of the two levels of claim a case falls within depending on the type of claim.  For level 1 claims, the issue fee (payable when the claim is issued) will be £160 and the hearing fee (payable before the hearing) will be £230.  For level 2 claims, the issue fee will be £250 and the hearing fee will be £950.  Level 1 claims are less complex and include claims for unlawful deductions from wages, holiday pay and redundancy pay.  Level 2 claims include unfair dismissal, discrimination and equal pay claims.

Also to come:

• Mandatory pre-claim ACAS conciliation.  A government consultation on how this will work in practice is currently underway and is due to close on 15 February 2013.  Essentially, individuals will have to submit details of their dispute to ACAS before submitting a claim to the tribunal and will be offered pre-claim conciliation for a period of one month.  If this is refused by either party, or if conciliation is unsuccessful, the individual will then be free to bring their claim.
• Outcome of the consultation on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).  Proposals include scrapping the service provision change provisions (which apply on an outsourcing/in-sourcing) and permitting post-transfer harmonisation of employment terms and conditions.