With the turn of another year comes several developments in employment law. Read this article for a summary of the main changes, and some practical suggestions for employers to help you prepare for the new laws.
Draft legislation amending the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) has now been published and is expected to come into force 31 January 2014. The main changes include:
- allowing renegotiation of terms agreed from collective agreements one year after transfer (provided any changes are no less favorable to employees);
- a change in the place of work after a transfer can amount to an ‘economic, technical or organisational’ defence for the purposes of changing terms and conditions and termination of employment;
- clarification that for there to be a TUPE service provision change, the service provision must be “fundamentally or essentially the same” as before the transfer;
- allowing micro-businesses to inform and consult directly with employees; and
- allowing TUPE consultation to satisfy collective redundancy consultation rules in some circumstances.
In anticipation of these changes, employers should make it their new years resolution to review current policies on M&A’s and changing contractors to take into account the expected changes. These changes are thought to be welcomed, with an aim to assist transferees to make business changes more quickly and cost effectively, and create a legal environment that is much less restrictive.
ACAS Early Conciliation
The Enterprise and Regulatory Reform Act 2013 (the ERR Act) introduces ACAS’ (Advisory, Conciliation and Arbitration Service) Early Conciliation for workplace disputes. From the 6 April 2014, anyone intending to make an employment tribunal claim must contact ACAS first and submit an ‘Early Conciliation Form’. ACAS will then try to resolve the dispute quickly and cost effectively before a claim is submitted.
Employers should start to consider how this process will work, bearing in mind that from April 2014 there is scope for any dispute to be resolved, provided that the employee agrees. Considerations should include who will represent them in these conciliations (if any), and how requests for the service should be presented.
Discrimination Questionnaire to be repealed
The statutory discrimination and equal pay questionnaire process is set to be abolished by the ERR Act and replaced with a new informal process and new ACAS guidance on 6 April 2014. It is important for employers to note that this repeal will not prevent individuals from seeking pre-claim information through a more informal route; employees may use other methods to elicit the information and there is nothing preventing them from submitting informal questions as a pre-action request, and using an employers failure to answer against them in proceedings.
Planning ahead, employers should issue reminders that although questionnaires will be abolished, there is still a need to respond to reasonable questions within a reasonable time frame.
Employment Tribunal penalties and powers
From 6 April 2014, the ERR Act introduces a power for employment tribunals to impose additional financial penalties of 50% for employers who lose a claim. The penalty may be anywhere between £100 up to a maximum of £5,000. This is not automatic; the tribunal will have discretion to impose these penalties, particularly where the employer’s breach has ‘one or more aggregating features’, or where the employer’s breach involves unreasonable behaviour.
In order to avoid such penalties, employers should be wary of any behaviour that could be perceived as having breached an employee’s rights in an unreasonable, negligent or malicious way. Prior to April employers should consider raising awareness of the legal change amongst managers, checking internal guidance on conduct and performance and grievance policies, and considering any potential need for further training.
New Health and Work Advisory and Assessment Service
The Government is set to establish a new independent assessment and advisory service to ensure that employers receive bespoke, independent advice where employees’ sickness absence lasts more than four weeks. This service is also set to encourage earlier return to work, and/or rehabilitation. The Government intends to establish such a service to:
- deliver a state-funded assessment by occupational health professionals;
- ‘signpost’ appropriate interventions;
- provide employers and employees with advice on overcoming barriers to return to work; and
- provide case management for those that require ongoing support to enable an easy return to work.
Revised ‘fit notes’ have also been published, emphasizing the importance of assessing an employee’s heath condition to work in general, and not just for one specific role.
Employers should consider their current approach to sickness absence. Look to implement an appropriate approach for returning employees, including a potential internal interview process and procedures that assess employees health in accordance with the revised ‘fit notes’.
Extension of the right to request flexible working
From 6 April 2014, the right to request flexible working is due to be extended to all employees. Additionally, the statutory procedure for considering such requests will be abolished and replaced with a duty for employers to deal with requests ‘reasonably’, and within a ‘reasonable time’. A statutory Code of Practice is to be drawn up by ACAS, supported by guidance, to assist employers. Following the change in law, employers will have a duty to consider all requests in a reasonable manner, and not just those from employees with childcare or other caring responsibilities (the current position).
Employers should consider checking internal procedures against the new ACAS code and make any necessary changes to reflect the code. Prepare in advance for the extension by updating managers on the planned change in law and issuing guidance on how to deal and respond to such requests.