Tag Archive: 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/

Upcoming changes to employment law

Ben Gorner, a partner in our Birmingham office, comments: In recent weeks the Government has announced a number of key changes to employment law which will be coming into force in the next few months.

Rates and limits

Changes to tribunal compensation limits, which historically took effect in February, have been moved to April. On 6 April 2014 the maximum compensatory award for unfair dismissal will rise from £74,200 to £76,574. The maximum amount of a week’s pay, used to calculate redundancy payments or various awards including the basic or additional award of compensation for unfair dismissal, also rises from £450 to £464. The new rates will apply to any dismissals where the effective date of termination is on or after 6 April 2014. Different rates apply in Northern Ireland. Other changes to statutory rates and limits will also come into force on 6 April, including changes to statutory maternity pay and statutory sick pay. For full details of the new limits click here to access the rates and limits section.

Early conciliation in tribunal proceedings

On 18 February the government confirmed that the new ACAS early conciliation (EC) scheme will be available to claimants from 6 April 2014 and mandatory for tribunal claims presented on or after 6 May 2014.  EC comprises a four-step procedure under which a prospective claimant is required to contact ACAS before issuing relevant proceedings (which includes the majority of claims):

Step 1: The prospective claimant must send “prescribed information” in the “prescribed manner” to ACAS. This information is limited to the name and address of the prospective claimant and respondent.

Step 2: After an early conciliation support officer has made initial contact with the prospective claimant and confirmed that they wish to proceed, the claimant’s information is sent to a conciliation officer.

Step 3: The conciliation officer must try to promote a settlement within a “prescribed period”.

Step 4: If a settlement is not reached, either because the conciliation officer considers that settlement is not possible, or because the prescribed period expires, the conciliation officer must issue a certificate to that effect. The prospective claimant will be unable to pursue most tribunal claims without this certificate.

There is no requirement on either party to actually engage in conciliation. The immediate impact for employers will be delay in employees bringing claims. The EC scheme provides for the usual three month limitation period to bring a tribunal claim to be extended to take account of the conciliation period.

Flexible working

Finally, the right to request flexible working will be extended to all employees, not just carers and parents, with effect from 30 June 2014. The right to request flexible working will apply to all employees with 26 weeks’ qualifying service with the employer. The statutory request procedure will be repealed and replaced with a duty on employers to deal with requests in a reasonable manner and within a reasonable period of time. Although the final legislation has not yet been published, it seems likely that:

  • The employee will continue to have to include prescribed information in their application
  • The statutory grounds for refusal will continue to apply
  • There will be a time limit of three months for the employer to make a decision on the employee’s request but this period may be extended by mutual agreement
  • Employers will be able to treat an application as withdrawn if the employee fails to turn up to two application/appeal meetings without good reason and the employer notifies the employee that it has decided to treat the employee’s conduct as a withdrawal of the application
  • The limit of one request per 12 months will continue to apply
  • Employees will be able to bring a complaint in the employment tribunal if the employee considers that:
    • the employer has not dealt with their application in a reasonable manner or they have not been notified of the employer’s decision within the 3 month time period (or such mutually agreed extended period);
    • the employer’s decision to reject their application was based on incorrect facts; or
    • the employer’s notification to the employee that they considered their application to be withdrawn did not meet the statutory requirements
    • An employment tribunal complaint cannot be made until the employer has notified the employee of its decision or the 3 month period (or such extended period as has been mutually agreed) comes to an end without the employer notifying the employee of its decision. A complaint in relation to deemed withdrawal may be made as soon as the notification of deemed withdrawal is given to the employee.

ACAS has published a guide to handling requests to work flexibly in a reasonable manner.

Employers are likely to need a new flexible working policy to reflect the change in eligibility and procedure.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/upcoming-changes-to-employment-law/

Protected conversations

Gurpreet Duhra, a Partner in our Sheffield office looks at the recent changes in protected conversations:

It is a common misconception that simply labelling a meeting or discussion “without prejudice” protects that discussion from future admissibility in legal proceedings. As a legal matter, the “without prejudice” confidentiality rule only applies to without prejudice discussions relating to the resolution of genuine disputes.  There needs to be an existing dispute before the without prejudice rule can be applied.

In many employment situations where an employer is seeking to offer settlement terms to an employee, there may be no existing dispute in the formal sense.  This gives rise to an inherent vulnerability where employers are keen to promote the idea of a settlement.  This has led to some fairly convoluted attempts to establish a dispute before beginning without prejudice discussions, or employers have simply accepted the risk in the hope and expectation that a settlement will ultimately be arrived at.

On 29 July 2013, legislative provisions brought into force a new regime of “protected conversations”.   The legislation is supported by an ACAS Code of Practice.   Compromise agreements were re-named “settlement agreements” on the same date.

The intent behind the new law is to address the difficulties with the existing without prejudice rules.    Under the new rules, evidence of pre-termination negotiations will be inadmissible in unfair dismissal proceedings except that in relation to anything said or done which in the tribunal’s opinion was improper or was connected with improper behaviour, it is inadmissible only to the extent that the tribunal considers just.

However, the new rules have some fairly major shortcomings and should be approached with caution. 

The biggest restriction for employers is that the protection applies to normal unfair dismissal claims only.  If negotiations are unsuccessful and the employee subsequently brings an unfair dismissal claim, then evidence regarding the settlement discussions will be inadmissible. However, if the employee brings another claim, such as discrimination or whistleblowing, or one of the categories of automatically unfair dismissal, evidence of pre-termination negotiations will be admissible. 

Discussions will also be admissible if there has been “improper behaviour” by either party.  The ACAS Code sets out exhaustive guidance on what may constitute improper behaviour which will lead to the confidentiality protection being lost.  This includes harassment; bullying and intimidation; physical assault or threats of assaults; criminal behaviour; victimisation;  discrimination; and undue pressure.

The limitations on the new regime may make it unattractive to employers unless there is little or no risk of a non-unfair dismissal type claim being brought. 

It is also unclear how the protection will operate in practice where the employee brings an unfair dismissal claim and an additional claim, such as discrimination. The tribunal will hear the evidence for the purposes of the discrimination claim, but will have to disregard it for the purposes of the unfair dismissal claim.

The legislation itself does not stipulate any procedure to be applied.  However, the ACAS Code provides guidance on settlement agreements and procedure and Employment Tribunals are likely to have regard to the Code in determining the appropriateness of the employer’s behaviour.

The Code states that parties should be given a reasonable period of time, generally a minimum period of up to 10 calendar days, to consider the terms and receive independent advice. 

The Code also recommends that employees should be permitted to be accompanied at any meeting to discuss settlement.  This is something employers are likely to be reluctant to do.  However, if the employee asks to be accompanied and the employer refuses, this may constitute improper behaviour. 

For the moment, it is unclear how the new law will operate and, as with all new legal concepts, it may require case law to provide clearer guidance on the scope of the regime.

As matters currently stand, the new regime only appears to be of value in respect of employees where there is a very low risk of claims other than unfair dismissal.  The new law is likely to be of little or no assistance in obvious high risk cases, for example when dealing with pregnancy/maternity situations; part-time employees; employees with medical issues and/or dealing with long term sickness absence; employees from minority ethnic groups; where there are obvious gender or age related discrimination issues; where there has been a history of grievances and disputes with the employee which may form the basis of a whistleblowing claim or similar.  For these high risk groups, the normal “without prejudice” rules will continue to apply where there is a genuine existing dispute.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/protected-conversations/