Tag Archive: employment law reform

Final employment law changes for this Parliament

Vinita Arora, a Partner in our London office, comments: On Monday 30 March 2015, Parliament dissolved and the period of pre-election purdah began, meaning that the government will be unable to make decisions or announce policies if they are likely to have significant effects or be politically contentious in the run-up to the election on 7 May. However, there is still time for one more round of employment law changes to take effect in April 2015:

Shared parental leave

The new system of shared parental leave will be available to parents of children due to be born or placed for adoption with them on or after 5 April 2015.

Adoption leave

With effect from 5 April, the requirement for 26 weeks’ service before employees become entitled to adoption leave is removed, and a new right is introduced for both single and joint adopters to attend adoption appointments together with protection against suffering a detriment or being dismissed in relation to exercising that right. Adoption leave rights are also extended to employees fostering a child under the “Fostering for Adoption” scheme.

Unpaid parental leave

Also with effect from 5 April, the current system of unpaid parental leave is extended to parents of children up to age 18 (currently only parents of children up to the age of five can take the leave).

Tribunal recommendations

On 6 April, employment tribunal powers to make wider recommendations in discrimination cases are removed.

National minimum wage consolidation

On 6 April, Regulations come into effect which consolidate the national minimum wage legislation.

These measures will bring to an end a five year period of significant change in employment law. What happens next depends on the outcome of the election but judging by the announcements already made by some of the main political parties, we can expect to see legislative proposals in relation to zero hours contracts, apprenticeships, equal pay and the national minimum wage. We will report on any developments as they happen on our On the horizon legislation tracker (pdf) which provides up-to-date information on key employment law changes and instant access to relevant legislation, including draft Bills.

 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/final-employment-law-changes-for-this-parliament-2/

Milestone date for the UK’s working parents – 1 December 2014

In a significant move away from the tradition of birth-related leave being the preserve of a woman, from 1 December 2014, the UK’s new shared parental leave regime will, for the first time, allow parents to share up to 50 weeks’ leave. The new regulations apply to parents expecting a baby on or after 5 April 2015 as well as to adoptions and to employees who become parents through a surrogacy arrangement.

Sandra Wallace, the UK Employment Group Head, comments, “Today marks an exciting milestone in the development of family friendly employment rights in the UK. That excitement is, however, slightly tainted by the fact that the legislation enacting the new regime is extremely complex;   at the most recent count there were 22 sets of implementing regulations. The regime places onerous notification and other burdens on both employers and employees so, at first blush, the task of understanding and implementing shared parental leave may not seem straight forward. That said, if employers put  time into addressing the new requirements now and take some sensible preparatory steps, the new scheme is likely to run smoothly within their organisation. No-one is expecting an immediate rush of requests and it is anticipated that employee use of the new rights will gradually increase over the coming years. Our recommendation is that, as a starting point,  UK businesses should prepare by putting relevant policies in place (for example, a revised maternity policy and a shared parental leave and pay policy); by producing notification forms for their employees to use; and by producing guidance for managers on handling requests for shared parental leave. For further details see our previous post –  One month countdown to shared parental leave and our handy infographic.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/milestone-date-for-the-uks-working-parents-1-december-2014/

One month countdown to shared parental leave

Clare Gregory, a Partner in our Sheffield office comments: There has been increasing publicity recently about the new shared parental leave regime which will, from 1 December 2014,  for the first time, allow parents to share up to 50 weeks’ leave. This is one of the most radical of the Government’s recent employment law reforms and will undoubtedly have a significant impact on both employers and employees. It completely overhauls the existing system of maternity and paternity leave for those parents who wish to share leave with their partners.   Features of the new regime of particular note are that couples can take leave together or separately;   leave can be taken in a continuous block or in discontinuous blocks of one week at a time; and an employee can vary the leave dates they have requested up to a maximum of three times.

Most employers are already broadly aware that family-friendly rights are facing the biggest changes ever seen, however, many have yet to realise how soon they might feel the impact of the implementation of shared parental leave (SPL).  The majority of the new regulations will come into force on 1 December 2014 and will apply to parents expecting a baby on or after 5 April 2015.  This means that any eligible employees who have become pregnant since July 2014 or who become pregnant from now will fall under the new regime and be entitled to share up to 50 weeks’ leave.  There is therefore only a matter of weeks left to get systems in place. 

Employers should be taking steps to put in place appropriate policies and procedures so that they are able to inform employees about their rights and obligations. It will also be essential to train staff and managers on the new regime.  The legislation which has been published to date is complex and places onerous burdens on both employers and employees which means that understanding and implementing the new regime is not going to be straight forward. 

The top three areas we anticipate are likely to cause headaches for employers are:-

Enhanced pay

The new rights raise questions about how employers should deal with pay during shared parental leave, particularly where they offer a scheme of enhanced pay during maternity leave.  Addressing this appropriately will be key to maintaining good employee relations and ensuring that there is no discrimination.  However, the legal issues in this area are not straight forward and employers should therefore tread carefully in making any decisions.

There is the potential for direct discrimination in relation to pay if an employer offers an enhanced maternity pay scheme but does not mirror those provisions in a shared parental pay scheme.  Potentially a man on shared parental leave could seek to compare himself to a woman on maternity leave and argue that he is being treated less favourably because he is not entitled to enhanced pay.  This is a particular risk in light of the removal of the exclusivity of maternity leave for women – leave is now interchangeable after just 2 weeks which gives rise to the argument that a man taking SPL at any time after 2 weeks should be entitled to the same pay which a woman would receive if she was on maternity leave at the corresponding point in time.  There are also potential claims for indirect discrimination, for example if the shared parental pay policy disadvantages more men than women – which it may because women will have the choice as to whether to continue on an enhanced maternity scheme whereas men will not.

Discontinuous periods of leave

Under the new regime, employees will be permitted to request either a continuous period of leave or discontinuous periods of leave in blocks of a week at a time.  Where a request is made for a discontinuous block of leave,  the employer can either consent to the leave dates,  suggest alternative dates or refuse the request.   Employers should put in place rigorous systems for dealing with discontinuous leave requests as they are only given two weeks in which to consider/discuss the request with the employee.   Given this very short time period,  policies should specify exactly who such leave requests should be directed to in order to avoid the risk of a request languishing in a manager’s in-box and not reaching HR until the two week window has passed.  Further, any refusal of a request for discontinuous leave will have to be handled very carefully to avoid constructive dismissal claim and/or claims of discrimination where, for example, mens’ and womens’ requests are treated differently.

Communications between employers

There will there be no central co-ordination of how the 50 weeks’ leave is being shared between parents which has caused some employers to express concern that there is a risk of both parents taking time that amounts to over 50 weeks in total.

The Regulations which have been published do not provide for any communication between employers.  Instead, the provisions require each employee to comply with detailed notice and evidential obligations, in which they must provide information about, and include signed declarations from, the other employee. Each employee must also give the name and address of the other employee’s employer.  However, beyond this there are no provisions to facilitate communication between employers.    The notices to be given by each employee require them to tell their employer how much SPL is available and how much each parent intends to take.  As such, the system could be open to fraud but the Government considers that the system of notices and evidence proposed is sufficient to prevent/deter this.   

A suggested approach for employers is, as part of their implementation plan, to produce detailed notification forms for use by their employees which assist them to provide as much of the required information as possible.   Forms and policies should also make clear that the employer will rely on the provided  information;  that if any information is found to be untrue there is the risk of disciplinary action;  and also that the employer will share information with other employers if asked to do so.

 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/one-month-countdown-to-shared-parental-leave/

What next for employment law post-referendum? And post-election?

Kate Hodgkiss a Partner in our Edinburgh office, comments: The people of Scotland have spoken, and the answer is No. No, at least, to independence; however, the three main Westminster political parties were forced to make substantial concessions regarding further devolution of powers to the Scottish Parliament in order to secure the No vote which raises questions over the potential implications of so-called ‘Devo Max’ in the field of employment.

Employment, benefits, social security and immigration are all matters currently reserved to the UK Parliament but whether this will remain the case when further powers are devolved is up for grabs. Gordon Brown’s speech for the Better Together campaign the week before the referendum, in which he pledged a 12 point plan for devolution,  included employment rights amongst those further powers that he believes should be devolved to Scotland.

A House of Commons debate on the 12-point plan is expected in mid-October and a draft bill will follow in early 2015. However, it is unlikely that amending legislation will be passed until after the General Election in May 2015.

Assuming employment rights does form part of the parcel of powers to be transferred north of the border, the main areas in which the SNP would look to make legislative changes are outlined in a White Paper published in November 2013. These include:

  • Worker representation on company boards;
  • Targets for greater representation of women on company boards;
  • Making the living wage and minimum wage central to their employment policies;
  • Guaranteed work, apprenticeship or training for young people under 24;
  • Restoring 90 days’ consultation in collective redundancy situations affecting 100+ staff; and
  • Abolishing the shares for rights scheme.

What if the SNP do not hold a majority in Scotland? If Scottish Labour were to be returned to power in the next Scottish Parliamentary elections, the leader of the Scottish Labour party has committed that the administration would abolish tribunal fees. This is further than the Labour party have been prepared to go south of the border; in a speech to Labour party conference the Shadow Business Secretary Chuka Umunna pledged to “reform the tribunal system so affordability is not a barrier to justice” which is vague but suggests rather less than complete abolition of fees. Labour have also pledged to abolish “exploitative” zero hours contracts and increase the national minimum wage to £8 by 2020. Also speaking at Labour party conference, Shadow Chancellor Ed Balls also pledged to scrap the ‘shares for rights’ employee-shareholder regime. The Labour party have not made any firm commitment in respect of the other policy areas on the SNP’s list. 

It remains to be seen whether it will be possible to deliver ‘Devo Max’ and what the constitutional landscape will look like once the dust settles. However, if employment law is devolved, depending on the outcome of the 2015 General Election, the result could be very different regimes for Scotland and England in some respects. This could lead to problems for employers operating in both England and Scotland. In particular, if Devo Max results in a situation where tribunal fees are payable in respect of a claim brought in England, but not in Scotland, this would likely lead to employees forum shopping.

Employment rights are unlikely to form the most significant battleground in the bunfight over increased devolution, but there will be implications for UK employers which will need to be closely monitored.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/16746/

Zero hours contracts: new consultation launched

Alan Chalmers, a Partner in our Manchester office, comments: Regulation of the labour market is always a political issue, and in the protracted run-up to the 2015 General Election the regulation of zero hours contracts seems set to be a particular focus for all the main political parties. In June, the Government announced that it would be taking action to ban the use of exclusivity clauses in zero hours contracts. The proposed ban forms part of the Small Business, Enterprise and Employment Bill and it is intended to protect zero hours contract workers against the situation where they may be contracted to work for one employer, receive no or very little work in any given period but be prohibited from seeking other employment to supplement or provide an income. It is thought that the ban on exclusivity will benefit around 125,000 zero hours contract workers who are estimated to be tied into such exclusivity clauses. The proposed ban comes following a period of widespread concern over the prevalence and misuse of zero hours contracts. Several types of further regulation have been mooted but are not included in the draft Bill, including requiring more transparency from employers about the nature of zero hours roles, a non-binding Code of Practice on the use of zero hours contracts, protection from detriment similar to the protection for fixed term employees and part time workers, entitlement to be notified of a permanent role and prohibitions on the circumstances in which an employer can reduce hours. There is particular concern that some employers may be using reductions in hours as a form of disciplinary sanction, or in order to reduce redundancy costs.

The difficulty with any potential restrictions on zero hours contracts, including the exclusivity ban, is how to ensure enforceability without unduly restricting the labour market.  Any attempt to restrict abuse runs the risk of being either too easily circumvented or so restrictive that it interferes with legitimate use.

 As drafted, the proposed ban on exclusivity will apply to any contract under which there is no certainty that any work will be made available to the worker. This could easily be circumvented by employers offering one hour fixed contracts with additional flexible hours, or by simply failing to provide further work to a zero hours worker who undertakes work for another employer. The Government has now issued a consultation paper seeking views on how to tackle the potential for such avoidance. The consultation paper suggests that this might include imposing financial penalties on employers if employees are treated detrimentally as a result of taking another job.

The abuse of zero hours contracts is a real problem. However, what the draft legislation and consultation paper highlight is that it is very difficult to do anything meaningful about ‘bad’ zero hours contracts without undermining the valuable flexibility provided by ‘good’ zero hours contracts. Zero hours contracts have a valuable role in the labour market, offering significant benefits for both employers and employees when used properly. Employers benefit from a bank of trained staff to respond to fluctuations in demand, and many employees find zero hours contracts useful in helping them to balance work with other commitments such as family or study. There are undoubtedly circumstances in which use of exclusivity clauses where there is no corresponding duty on the employer to provide work causes significant unfairness and hardship to employees. Conversely, however, some employers have good reasons for exclusivity clauses. Workers on zero hours contracts may be highly skilled or trained for a job which has specialist requirements and employers need to ensure that they will be available when needed.

Further regulation of zero hours contracts seems likely given the high political profile which they currently enjoy. Ahead of whatever approach this or any subsequent government decides to take, there are sensible voluntary steps which employers could take to ensure responsible use of zero hours contracts, such as ensuring there are sufficient safeguards in place to prevent managers capriciously changing hours and being clear as to the terms and effect of what a zero hours contract means for the employee before he or she signs up to an arrangement. Employers who take steps to pre-emptively adopt some of these measures may find themselves in a position of being best placed to attract and retain skilled workers who are happy with the flexibility of a zero hours arrangement.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/zero-hours-contracts-new-consultation-launched/

Early conciliation: what does it mean for employers?

Gurpreet Duhra, partner in our Sheffield office comments: Early conciliation (EC) has been available to claimants since 6 April 2014 but will be mandatory in respect of claims presented on or after 6 May 2014. Whilst employers could be forgiven for assuming that EC will have limited impact, particularly given the significant decline in claims since the introduction of fees, it is important that managers are prepared for the initial call from Acas to avoid prejudicing the employer’s position in any subsequent negotiations or litigation.

The mandatory EC procedure involves four steps:

Step 1: A prospective claimant who wants to institute relevant proceedings must provide prescribed information to Acas either by completing the EC form online or by telephoning Acas.

Step 2: An early conciliation support officer (ECSO) will make initial contact with the prospective claimant. The ECSO will explain the EC process, take some details from the prospective claimant and check that they wish to proceed with conciliation. As long as they do, the prospective claimant’s information will be sent to a Concilation Officer (CO).

Step 3: The CO will then contact the prospective respondent and enquire whether the prospective respondent is willing to participate in EC. If so, the CO must try to promote a settlement between the parties within the EC period of one calendar month from the date on which the prospective claimant made initial contact with Acas. The EC period may be extended once, by up to 14 days, if the CO believes settlement may be imminent.

An EC certificate must be issued where:

  • It is not possible to contact the parties;
  • The parties do not wish to participate in EC;
  • Settlement is not achieved within the prescribed period; or
  • The CO considers that settlement is not possible.  

The EC certificate will give the prospective claimant a unique reference number which they will have to include on their ET1 should they go on to present a claim. Without that reference number, the tribunal will reject the claim (except in the minority of cases where EC is not required).

What is the impact on employers?

There is no requirement on either party to engage with conciliation. If either the claimant or the respondent does not want to enter into discussions, the CO will simply issue the EC certificate. In many cases employers may consider that there is little incentive to enter into settlement negotiations until the employee has paid a fee to institute tribunal proceedings. However, there are potential benefits of settling a claim early, particularly where the claimant is unrepresented.

Employers should bear in mind the following considerations:

Do managers need training? A line manager may be the first contact that Acas makes with the employer. It is vital that anyone within the organisation who is contacted by Acas about an employment dispute understands the importance of dealing with the initial contact properly. The informal approach from Acas should be treated as seriously as employers would take a formal legal communication regarding a potential claim. Ensure that any managers who may be the initial recipient of the Acas call are aware of their responsibilities.  The initial recipient of the call should also be reminded to keep the issue confidential and not to discuss the details of the dispute with anyone else;

Give managers clear guidance on who will deal with EC. It is important that the individual who receives first contact from Acas about EC passes the details of the dispute on to whoever has responsibility for managing any subsequent tribunal claim. Individuals without appropriate authority and training should not attempt to resolve the issue themselves. Acas is allowing some larger organisations to register a national contact for the purposes of EC. For more information contact ECcontactsList@acas.org.uk;

Do not discount the option of settlement without first considering the merits. An unreasonable rejection of the possibility of settlement discussions could potentially lead to cost implications in the future. Relevant factors when assessing the merits of conciliation include: the likely strength and value of the claim; the potential legal costs and management time of defending a claim; the ease with which the issue could be resolved informally; and any damage to the organisation’s reputation that could result from lengthy and public tribunal proceedings;

Obtain as much information on the allegations from Acas as possible to make an informed assessment of whether the claim has any merits. Early investigation of the background to the allegations will also assist the organisation to respond comprehensively and accurately if the claimant does put in an ET1; 

Do not feel that you have to respond to all allegations immediately. Take time to consider your position before responding on allegations made and if necessary take legal advice on next steps including:

  • How to obtain further information on the allegations to allow you to determine the merits of any potential case;
  • The timing of any settlement and whether settlement is appropriate before a claim has been issued. As a result of the new fee regime, claimants are likely to want to explore settlement before issuing a claim whereas respondents are more likely to favour a ‘wait and see’ approach in order to see if a claimant is serious enough about their case to ‘put their money where their mouth is’. However, early settlements can be cheaper for employers and positions may become more entrenched once the fee has been paid;
  • The terms and nature of any settlement package offered.

Mark any internal correspondence regarding potential settlement as “without prejudice” to try and avoid it being disclosable in any future tribunal proceedings. Anything communicated to an Acas officer in connection with the performance of their functions is not admissible in evidence in tribunal proceedings unless the person who communicated it to the officer gives their consent.

Ensure that no one in the organisation reacts to contact from Acas by taking negative action against the worker(s) or employee(s) concerned eg refusing to give a reference. Depending on the type of allegations raised, this could lead to further claims (e.g. victimisation or whistleblowing).

Calculate the time limit: the EC regime includes a complicated process for recalculating the time limit for presenting the claim. The time limit is extended by the period between ‘Day A’ when the claimant contacts Acas, and ‘Day B’ when the EC certificate is deemed to have been issued, but may be extended further if this results in there being less than a month between Day B and the time limit expiring. There is significant potential for error and if the claimant fails to present the claim in time, the employer may be able to challenge its acceptance by the tribunal.

Ultimately in many cases employers may consider that there is little value in engaging in early conciliation. However, following the guidelines outlined above may prevent that decision from backfiring and creating increased legal risk for the employer.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/early-conciliation-what-does-it-mean-for-employers/

Shared parental leave: draft regulations published

Vinita Arora, a partner in our London office, comments: the Government has published draft regulations which will implement a new system of shared parental leave to supplement the current maternity, adoption and paternity leave schemes with effect from April 2015. The shared parental leave scheme will be extremely complex. Employers will need to put new policies in place well in advance of the implementation date.

There are three sets of regulations, the Shared Parental Leave Regulations 2014 (Leave Regulations), the Statutory Shared Parental Pay (General) Regulations 2014 (Pay Regulations) and the Maternity and Adoption Leave (Curtailment of Statutory Rights to Leave) Regulations 2014 (Curtailment Regulations).

In respect of babies with an expected week of childbirth (EWC) beginning on or after 5 April 2015, parents will be able to choose what type of leave to take. Mothers will still be entitled to 52 weeks maternity leave and fathers will still be entitled to two weeks’ ordinary paternity leave. However, if both parents fulfil the eligibility criteria, the parents will be able to give notice to opt to cut short statutory maternity leave and instead take shared parental leave.  Eligible employees will be entitled to a maximum of 52 weeks’ leave and 39 weeks’ statutory pay upon the birth or adoption of a child, which can be shared between the parents either concurrently or separately.

In order to qualify for shared parental leave, the mother must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the father’s)
  • have curtailed her statutory maternity leave
  • comply with the notice requirements

In addition, the father must have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC and have average weekly earnings above the lower earnings limit.

In order for the father to take shared parental leave, he must:

  • have 26 weeks’ service
  • have main responsibility for the care of the child (apart from any responsibility of the mother’s)
  • comply with the notice requirements

The mother must also have been engaged in employment as an employed or self-employed earner for 26 of the 66 weeks preceding the EWC, have average weekly earnings above the lower earnings limit and have curtailed her statutory maternity leave.

When the mother is on maternity leave, neither parent can take shared parental leave unless the maternity leave is brought to an end early. The Curtailment Regulations set out how leave can be brought to an end by giving at least 8 weeks’ notice in a “leave curtailment notice”. They also set out the circumstances in which a leave curtailment notice can be withdrawn or revoked. Notice can be given before the birth of the child to enable both parents to take shared parental leave immediately after the birth.

Shared parental leave must be taken in blocks of at least a week but can be taken discontinuously. Where the employee requests discontinuous periods of shared parental leave the employer can agree to it, propose alternative dates or refuse the request altogether, in which case the employee will be entitled to one continuous period of leave. Alternatively he or she may withdraw the notice (presumably so that their spouse or partner may take the leave instead). All leave must be taken within 52 weeks of the child’s birth.

The draft rules as to notification are complicated. The employee may be required to give a number of different written notices to the employer particularly if plans regarding leave change.

The Leave Regulations also set out provisions on terms and conditions during leave, the right to return to work, rights on redundancy, and protection from detriment and dismissal, all of which are very similar to the current provisions on maternity, adoption and paternity leave. KIT days will be increased to a maximum of 20 per employee (including any KIT days already taken during maternity leave).

The provisions also apply to adoptive parents where the child is matched or placed for adoption on or after 5 April 2015.

The Pay Regulations set out the eligibility conditions for either parent to claim shared parental pay (SSPP) on the birth or adoption of a child, and the notifications that must be given to the employer in order to qualify. The pay regime is similar to statutory maternity pay, although inherently more complex due to the nature of shared parental leave.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/shared-parental-leave-draft-regulations-published/

December 2013’s review of the year

Sandra Wallace, Partner and Employment group head, highlights the most important legislative and case law developments from 2013 and identifies the key cases to watch out for in 2014.   Remember to use our On the horizon legislation tracker to keep up to date with the further changes to legislation which are expected in 2014 and beyond.

 

2013 LEGISLATION ROUND UP

Employment Tribunals

1 February Cap on a week’s pay for statutory awards increased from £430 to £450
  Unfair dismissal compensatory award increased from £72,300 to £74,200
25 June In political affiliation cases the two year unfair dismissal qualifying period no longer applies
29 July One year cap on unfair dismissal compensatory award introduced
  Protection of settlement negotiations from admissibility in unfair dismissal tribunal proceedings introduced
  Introduction of fees regime for employment tribunal claims and new tribunal rules
  Compromise agreements renamed ‘settlement agreements’
7 October New fee remission system in force for employment tribunal fees

Family friendly

8 March Parental leave increased from 13 to 18 weeks
7  April Statutory maternity, paternity and adoption pay rates increased from £135.45 to £136.78 per week

Whistleblowing

25 June Amendments to whistleblowing legislation to remove good faith requirement and introduce public interest test
1 November

Close of call for evidence on further whistleblowing reform

Redundancy

1 February Cap on a week’s pay for statutory redundancy payments increased from £430 to £450
6 April Period of required collective consultation for 100+ redundancies reduced from 90 to 45 days

Employment status

1 September Employee shareholder status introduced

Discrimination

25 June Obligation for the Government to make an order outlawing caste discrimination came into force
1 October Repeal of third party harassment provisions from Equality Act 2010

 

 

2013 CASE LAW ROUNDUP

 Redundancy

USDAW and others v WW Realisation 1 Ltd and others This case involves the redundancy consultation obligations arising out of the closure of Woolworths and Ethel Austin stores between 2008 and 2010.   The EAT ruled that the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. This potentially results in employers needing to collectively consult whenever they propose to make 20 or more redundancies in a 90 day period, regardless of where the employees are based.  This case is however being appealed to the Court of Appeal.

Working time

Neal v Freightliner Ltd

 

An Employment Tribunal held that a freight worker was entitled to have overtime payments and shift premiums included in the calculation of his holiday pay as they were intrinsically linked to the performance of the tasks he was required to carry out under his employment contract.  This case is being appealed to the EAT.

Employee competition

Coppage and anor v Safety Net Security Ltd The Court of Appeal upheld an order that a former company director pay at least £50,000 following a breach of his post-termination restrictive covenants which prohibited solicitation of any customers of his former employer for a period of six months following termination.
Vestergaard Frandsen SA v Bestnet Europe Ltd The Supreme Court held that a former sales manager was not liable for misuse of confidential information.  The manager had not acquired information while working for Vestergaard and had no implied knowledge of the misuse of information by her new employer.

Transfer of undertakings

Alemo-Herron and others v Parkwood Leisure Ltd

Considering the status of collective agreements following a TUPE transfer, the ECJ decided that under the Acquired Rights Directive it is impermissible for UK courts to adopt a “dynamic” rather than a “static” interpretation.  Where transferring employees’ contracts provide that their terms are to be determined in accordance with collective agreements, the transferee cannot be bound by terms which are collectively agreed after the transfer if it is unable to be involved in the negotiating process.

Crystal Palace FC Ltd v Kavanagh & Ors

In a case which arose out of the dismissal of employees of the company which owned Crystal Palace football club when it went into administration, the Court of Appeal held that the employees were dismissed by the administrator shortly before the business was sold for a valid “economic, technical or organisational reason”. The administrators needed to reduce the wage bill in order to continue running the business and avoid liquidation.

Discrimination

Lockwood v Department of Work and Pensions

The Court of Appeal held that a severance scheme, which paid higher payments to older employees on the basis that they needed more of a cushion than younger employees, was objectively justified.

Cox v Essex County Fire and Rescue Service

In this disability discrimination case, the EAT decided that although the employee had advised that he was suffering from bipolar disorder, the absence of a definite diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

Croft Vest Ltd & Ors v Butcher

The EAT held that an employer who refused to pay for an employee with work-related stress and depression to have private psychiatric counselling and cognitive behavioural therapy breached its duty to make reasonable adjustments.

KEY CASES FOR 2014

 Redundancy

USDAW v Ethel Austin Ltd (in administration) and another case

 

The Court of Appeal will consider whether the words “at one establishment” in the UK’s collective redundancy legislation should be disregarded for the purposes of any collective redundancy involving 20 or more employees. (NB. this is the Woolworths case  – see above for EAT decision).
Lyttle and others v Bluebird UK Bidco 2 Ltd In an application from a Northern Ireland employment tribunal to the ECJ, clarification is sought as to the meaning in the UK’s collective redundancy legislation of the term “establishment” and whether the duty to collectively consult is triggered when 20 or more employees are dismissed at a particular establishment or across the whole of the employer’s business.

Working time

Lock v British Gas Trading Limited and others The ECJ will consider whether the holiday pay of a worker, who receives basic pay and sales-related commission, should be more than just basic pay, even though during holiday periods they are not undertaking work that would entitle them to commission.
Neal v Freightliner Following the Employment Tribunal in 2013 (see above), the EAT will consider if holiday pay must be calculated in a way which takes account of pay for voluntary overtime.

Discrimination

Z v A Government Department & the Board of Management of a Community School;    CD v ST There are currently two cases before the ECJ which will consider whether an mother who has a child via a surrogacy arrangement has pregnancy and maternity rights under EU law.
FOA on behalf of Karsten Kaltoft v Billund Kommune The ECJ will consider whether discrimination on grounds of obesity is prohibited by EU discrimination law.

Gallop v Newport City Council

 

Judgment is awaited in this case in which the Court of Appeal has considered if an employer’s lack of knowledge prevents the duty to make reasonable adjustments arising where the employer relied on advice from an occupational health adviser that an employee was not disabled for discrimination purposes.

Mba v Mayor and Burgesses of the London Borough of Merton

Judgment is awaited in this case in which the Court of Appeal has considered whether or not an employer’s requirement that all care workers work some Sunday shifts indirectly discriminated against a Christian residential care worker who strongly believed that Sunday should be a day of rest.

Employment law reforms

R (on the application of UNISON) v Lord Chancellor

 

Judgment is awaited in this case in which the High Court heard an application by UNISON claiming that the introduction of employment tribunal fees is in breach of EU law and contrary to the principle of access to justice.    A similar application to the Scottish Court of Session has been stayed pending the outcome of the High Court case.

R (on the application of Compromise Agreements Ltd) v Secretary of State for Business, Innovation and Skills

An application has been made for judicial review of the statutory cap of one year’s salary in unfair dismissal cases. The application is based on the premise that older people are more likely to be out of work for more than a year and therefore would be eligible to more than a year’s compensation were it not for the new cap.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/december-2013s-review-of-the-year/

October’s key changes in employment law

Nicholas Jew, a Partner in our Birmingham office comments: One of the less welcome employment law reforms implemented by the Coalition government has been the decision to do away with the practice that new employment law is implemented only in April and October. However, despite the legislative free-for-all of the past few months, there are still some key employment law changes which will be coming into force on the traditional date of 1 October:

Abolition of third-party harassment

The Enterprise and Regulatory Reform Act 2013 (ERRA 2013) will repeal the third party harassment provisions in section 40(2) to 40(4) of the Equality Act 2010 (EqA 2010). Claimants who are harassed by third parties after 1 October 2013 will have to rely on the “normal” harassment provisions in section 26 EqA 2010, or seek to establish liability under the Protection from Harassment Act 1997. The definition of harassment in section 26 of EqA 2010 provides that harassment can occur where conduct is “related to” a protected characteristic. This means that employees may be able to argue that an employer’s inaction in the face of third-party harassment was itself unwanted conduct “related to” a protected characteristic that violated their dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them. However, this will be a high threshold and it is unlikely there will be many successful claims.

Directors’ remuneration

ERRA 2013 introduces a new voting and disclosure regime for the remuneration of directors of quoted companies. These companies will be required to implement a directors’ remuneration policy which is subject to binding shareholder approval, by way of ordinary resolution, at least once every three years. Shareholder approval will be required if the directors wish to change the policy within that three year period or the annual report on remuneration was not approved at the last accounts meeting.

National minimum wage

The national minimum wage (NMW) rates will increase. The standard adult rate (for workers aged 21 and over) will rise to £6.31 an hour (up from £6.19). The development rate (for workers aged between 18 and 20) will rise to £5.03 an hour (up from £4.98).The young workers rate (for workers aged under 18 but above the compulsory school age who are not apprentices) will rise to £3.72 an hour (up from £3.68).The rate for apprentices will rise to £2.68 an hour (up from £2.65). The accommodation offset will rise to £4.91 a day (up from £4.82).

The NMW will also now apply to agricultural workers

In addition, on 7 October 2013 a new single fee remission scheme for all courts and tribunals users will come into force. Under the new scheme, an applicant’s disposable capital and gross monthly income will both be assessed to determine whether they are eligible for a fee remission.

No further legislative changes have been confirmed as being implemented in 2013, although more detail on the proposed changes to TUPE in early 2014 should be forthcoming shortly.

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