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Employment Law Update – October 2013

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It’s been a very busy last few months with changes in Employment Law and it’s not over yet. There is more to come.  Here’s a catch up on some of the recent key changes and what’s ahead of us.

SETTLEMENT AGREEMENTS AND PRE TERMINATION NEGOTIATIONS
With effect from 29th July 2013, Compromise Agreements have been re-named as Settlement Agreements.

In addition, conversations between the employer and employee with a view to ending the employment relationship under a settlement agreement are not admissible as evidence in most unfair dismissal claims. However, discussions will not be protected if the reason for parting company is for an automatically unfair reason and…..  Claimants can rely on what was said during pre-termination negotiations as evidence in other types of claims they may want to bring e.g. a discrimination claim or a claim for breach of contract. Therefore it may be worth considering following the “without prejudice” principles for some pre-termination discussions. Read More

EMPLOYMENT LAW UPDATE

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WHAT’S ON ITS WAY……

As you may be aware, Employment Laws have been under review for some time and many of the proposed reforms will come into effect in stages from April 2013.

We thought you may find it useful to take a look at the key changes that are due to take place in 2013 and beyond.

EMPLOYMENT TRIBUNALS

  1. Early Conciliation
    From April 2014, there will be an opportunity of early conciliation via Acas for  most employment disputes before a tribunal claim is made. Claimants will be required to contact Acas before they lodge their claim in the employment tribunal although prospective Respondents who are pre-empting a claim may also request early conciliation. If both parties accept early conciliation there will be a time limit of one month to try to reach a settlement failing which a certificate will be issued to the Claimant who can then proceed with a tribunal claim. If the employee fails to include the certificate reference number on his or her claim the tribunal will dismiss the claim.If either party refuses early conciliation, Acas will issue a certificate to the Claimant so that the claim can proceed to a tribunal.
  2. Financial Penalties
    Employers that breach employees’ rights will face a financial penalty awarded by employment tribunals and payable to the Exchequer.  Employment tribunals will have the discretion not to issue fines where the employer has accidently breached an employee’s rights. An employer will also be able to appeal a penalty.The penalty will range from £100 to £5000 and if the fine is paid within 21 days only 50% of the penalty will be due. The implementation date is Spring 2014.
  3. Fees for Lodging Claims
    Claimants will have to pay an initial fee to issue a claim followed by a further fee if the claim proceeds to a hearing. The value of the fee will depend on the complexity of the case but it will also be means tested.  The tribunal may order the fees to be repaid to the claimant if he or she is successful with their claim. Fees are also payable for appeals submitted to the Employment Appeal Tribunal. This is due in this summer.

SETTLEMENT AGREEMENTS AND DISCUSSIONS

Compromise Agreements will be renamed Settlement Agreements. Settlement Agreements and without prejudice discussions will be able to take place without the need for a dispute to already exist and without the discussions being admissible in unfair dismissal proceedings.

The change in legislation will mean that offers to end the employment relationship on agreed terms can be made even where one or more of the parties is unaware that there is an employment problem.

Acas will launch a draft code of practice alongside the new legislation to help everyone understand how it will work in practice. These changes are due this summer.

WHISTLEBLOWING

The Reform Bill sets out changes to Whistleblowing. The main change being that a disclosure is not protected unless the employee reasonably believes that the disclosure is made in the public interest. Further, a disclosure no longer needs to be made “in good faith”. Where a disclosure is not made in good faith, the employment tribunal will be able to reduce compensation by up to 25%. This change is due in June 2013.

FAMILY LEAVE

  1. Agency Workers
    The ERA is amended to allow agency workers the right to request flexible working on return from parental leave.
  2. Shared Parental Leave
    Mothers who wish to take shared parental leave will have the opportunity to request this during their maternity leave period as long as they refrain from working during compulsory maternity leave.  Employees will be required to give their employer 6 weeks’ notice before their maternity leave commences that they wish to take shared parental leave. There will be a two week consultation period to agree the flexible leave but failing any agreement the fall back will be it must be taken in one block. How this will be administered is yet to be ironed out and consultation on this will take place sometime during 2013.
  3. Adoption Rights
    Adoptive parents will be entitled to the same rights to pay and leave as birth parents.
  4. Antenatal Appointments for Fathers
    Prospective Dads will be able to take unpaid leave to attend 2 antenatal appointments.The implementation date for these changes is expected in 2015.
  5. Flexible Working
    The right to request flexible working will be open to all employees not just those with children under 17 or caring for adults.  In addition, the statutory procedure currently in place for making such requests will be removed and the employer will have a duty to ‘reasonably’ consider a request. There will be a statutory code of practice introduced to give guidance as to the meaning of “reasonable”. Implementation for this is expected in Spring 2014.
  6. Parental Leave
    Parental Leave was increased to 18 weeks per child from 8 March 2013 and the Government has further announced that they will increase the upper age limit to 18 from 5 years. This is anticipated coming into force in 2015.

TUPE

The Government intends to simplify the regulations and will include the following key changes:

  1. The removal of service provision change.
  2. Removing the specific requirement of notification of employee liability information   although it will specify that the transferor should provide the information in order for both parties to carry out their information and consultation duties.
  3. Allowing employers with less than 10 employees to consult directly if there are no elected representatives.
  4. To allow the transferee to consult on collective redundancy with the staff who are to transfer.
  5. To allow the employee to choose his own level of pension contributions on transfer (subject to the minimum of the scheme rules) and for the transferee to pay equivalent pension contributions to those paid by the  transferor immediately prior to transfer as an alternative to matching the employees contribution level.
  6. To change some of the wording within the regulations to make sure it more accurately reflects the Acquired Rights Directive.

These changes are due to come into force in October 2013

EMPLOYEE-SHAREHOLDER CONTRACTS

The House of Lords has finally agreed to the implementation of the Employee Ownership  Contracts where an employee gives up certain employment rights i.e. unfair dismissal and a redundancy payment in return for between £2000 and £50000 worth of shares which will be exempt from capital gains tax.  The Employer will be expected to pay for the employee to take legal advice on the matter.  The implementation date for this is 1 September 2013.

THIRD PARTY LIABILITY

Third Party Harassment Liability within the Equality Act 2010 is to be repealed. There has been no date set for this change as yet.

SICKNESS ABSENCE

And finally…..   a word about sickness absence.

A new health and work assessment and advisory service is due to be introduced in spring 2014 offering free occupational health assistance to employees, employers and GPs, including an independent assessment of employees who have been off sick for four weeks. The Government also abolishes the statutory sick pay record-keeping obligations.