Legal Laying down the law Claudia Gerrard
Employment law: what to expect in 2014
2013 was a busy and, in many ways, significant year in employment law. And 2014 seems set to be the same, as a few key areas of the law will be changing shortly explains Claudia Gerrard
TUPE major amendments planned: 31 January 2014 It has been more than a year since we last reviewed TUPE 2006 and the impact it would have within the rail industry. TUPE is the shortened name for the Transfer of Undertaking (Protection of Employment) Regulations 2006 which govern employment rights when work is transferred to a new supplier. Following a period of consultation last year, there will be three main changes made to TUPE as we know it.
1. service provision change: this covers the situation where work is outsourced for the first time, brought back in-house or where a new external service provider replaces an existing one. However, the law was far from certain and disputes often arose as to whether employees involved in work would transfer under TUPE. The change means that, in order for there to be a service provision change, the activities carried on after the transfer must be ‘fundamentally or essentially the same’ as those carried on before it. It is currently unclear how this may be interpreted in practice, but the current method of assessing the percentage of time spent on activities may continue to apply.
2. employee liability information: at one point it was proposed that this requirement should be abolished. TUPE requires the outgoing contractor to provide the new contractor with crucial employee data, such as length of employment, salary and benefits and whether there are any disputes with the employee. This obligation will now continue. However, the information will have to be given 28 days before the transfer, rather than the previous requirement of 14 days. 3. change in location: this will now be expressly included within the
scope of an economic, technical or organisational reason entailing changes in the workforce (ETO). Unless there is an ETO, transferring employees could claim unfair dismissal if they were made redundant due to a change in location. Now, where there is a change in location and a genuine place-of-work redundancy, the redundancy will no longer be automatically unfair. It is far from clear how these and
the other proposed changes will affect transfers in the future, so seek specialist legal advice in any cases of uncertainty.
Employment tribunal procedure planned changes: 6 April 2014
Three major changes are planned:
1. abolition of discrimination questionnaires: in cases of dispute, these were often used by claimants to require an employer to provide information on the employer’s practices and procedures in connection with discrimination. The law currently specifies when the questionnaire can be served on an employer and how long an employer has to respond. Failure to respond, or evasive responses, would allow a tribunal to infer that the employer had acted in a discriminatory manner. The system was criticised as being unduly onerous on employers. From April, the process will be more informal and there will be no statutory obligation on an employer to respond at all. ACAS is due to provide guidance for employers on how to respond to informal requests for information on discrimination within an organisation. 2. introduction of mandatory pre-claim conciliation: in line with introduction of fees for employment tribunal cases in summer 2013, this is aimed at reducing the number of tribunal claims. It will
require a claimant to submit details of their dispute to ACAS before bringing a claim. ACAS will act as conciliators between the claimant and the employer. This should encourage settlement of claims and reduce the likelihood of the matter proceeding to a full blown tribunal hearing. 3. financial penalties on losing employers: tribunals will be able to impose a financial penalty on employers who lose at tribunal. This will be equivalent to 50 per cent of any financial award, with a minimum threshold of £100 and a maximum cap of £5,000. Where a non-financial award is made, the tribunal will be able to ascribe a monetary value. The penalty will be reduced by 50 per cent if paid within 21 days. However, the levy of a financial penalty will be at the tribunal’s discretion and will not be automatic. This is aimed at reducing the number of employers who pursue claims in circumstances when it is clear that the claimant has a valid claim. The key effect of these and other
proposed changes is that employers and employees should exercise caution when handling disputes, to ensure that every effort is made to settle wherever possible.
Right to request flexible working extended: 6 April 2014 Flexible working falls into many categories, covering any working method which deviates from a standard work pattern. As such, it can include the usual practices of part-time working or flexitime. However, it can also cover annualised hours, homeworking, job sharing, shift working and staggered hours. Recently, requests for term-time working have become popular. The Employment Act 2002 introduced
the right for employees with children under the age of six to ask for flexible working patterns. It also covered
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