Forthcoming employment law changes

There are some important employment law changes heading our way in 2014 and 2015. Although the full extent of these changes is outside the scope of this blog we thought it helpful to set out some of the key proposed amendments.

TUPE

Earlier this year the government launched a consultation on changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). These Regulations protect employees if the business in which they are employed changes hands. The effect is to move employees and any liabilities associated with them from the old employer to the new employer, by law. The government’s aims in reforming TUPE have been stated as being to establish fairness for both employers and employees, increase the effectiveness of the labour market, remove the unfair legal risks to businesses when carrying out transfers and remove any unnecessary gold-plating of European Law.

Following the consultation period it has been confirmed that the draft amendments are likely to be in place as early as January 2014, following final approval by parliament in December. In broad terms, the Regulations set out the following changes to TUPE:

• for there to be a qualifying service provision change, the activities carried on after the change must be "activities which are fundamentally the same as the activities carried out previously". This amendment is intended to reflect the approach taken in the current case law;
• the renegotiation of employment terms derived from collective agreements one year after the transfer will be permitted, provided that overall the changes are no less favourable to the employee;
• it is being expressly provided that a transferee will not be bound by the provisions of a collective agreement which come into effect after the transfer, where the transferee is not a party to that agreement;
• it is being confirmed that changes in the location of the workforce following a transfer will be a "change in the workforce" such that it may constitute an "economic, technical or organisational reason", thereby preventing genuine place of work redundancies from being automatically unfair;
• express reference is being made to the fact that a variation to a contract of employment will not be void under TUPE if the reason for the variation is the transfer, provided that the terms of the contract permit the employer to make that variation;
• a transferee will be permitted to undertake statutory collective redundancy consultation pre-transfer, provided the transferor agrees to such pre-transfer consultation;
• the deadline by which the transferor is obliged to provide employee liability information is being increased from no fewer than 14 to no fewer than 28 days before the transfer; and
• micro-businesses (i.e. an employer with fewer than ten employees) are being permitted to inform and consult directly with all affected employees in cases where there are no existing appropriate representatives.

It is therefore apparent that, if approved, the draft Regulations should provide greater flexibility to employers when dealing with TUPE situations. Additionally, they are likely to be welcomed as generally being a sensible approach to tidying up the current TUPE regulations.

ACAS

It is anticipated that mandatory early ACAS conciliation will come into force in April 2014. The result of this will be that all Claimants will be required to notify ACAS before a claim can be issued in the Employment Tribunals. Once notified, ACAS will attempt conciliation for up to one calendar month, although this may be extended by two weeks if there is a reasonable chance of achieving a settlement.

At present, the Equality Act 2010 sets out that individuals who think that they have been discriminated against are provided with questionnaires which enable them to gather key facts in the dispute and help decide whether to bring legal proceedings. This evidence can also be used at the full merits hearing. It is generally agreed however that this procedure is time consuming and often serves no purpose in proving that there has been any discrimination. Accordingly, from April 2014 this will be replaced with an informal approach in guidance set out by ACAS.

General - 2014

From April 2014 there will be an introduction of Employment Tribunal penalties of 50% of any financial award for employers who lose at tribunal. The penalties will be between a minimum of £100 and maximum of £5,000.

Although the date has not yet been released, the government has confirmed that at some point in 2014 it will be extending the right to request flexible working to all employees who have more than 26 weeks continuous employment. Additionally, it is anticipated that the current statutory procedure which enables employers to consider such requests will be dismantled and replaced with a general requirement to deal with requests in a reasonable manner and within a reasonable time-frame.

Importantly for those who have been championing equal pay rights, from October 2014 Employment Tribunals will have the power to order equal pay audits where an employer is found guilty of gender pay discrimination. It will certainly be interesting to watch cases in this respect unfold.

General – 2015

Following on from the above changes, there are a wide array of amendments planned to take effect in 2015. These include:

• A new system of shared parental leave and pay, whereby parents can choose how they will share the care of their child during the first year of birth. This will see an end to the traditional mothers maternity leave/pay and it will be replaced by a shared right between both parents;
• Changes to adoption leave and pay;
• Intended parents of babies born to surrogates are to get rights to adoption and shared parental leave and pay. This is in addition to the right to unpaid time off to attend two of the surrogate’s ante-natal appointments;
• Fathers and partners of pregnant woman and adopters are to get the right to unpaid time off to attend ante-natal/adoption appointments;
• Single or main adopters, where it is a joint adoption, are to get the right to paid time off to attend five adoption appointments; and
• Parents will be entitled to take unpaid parental leave up until their child’s 18^th birthday. This is a major increase on the current provisions which only allow unpaid parental leave up to a child’s 5^th birthday, unless they are disabled.

As should be apparent, there are substantial changes to the field of employment law planned for the next few years. Although some of these are simply tidying up existing regulations, there are considerable new regulations being introduced, particularly in areas which move away from the ‘traditional’ family set-up.