CybHR Space. working together. Taking gravity out of Employment Law. Contents. Newsletter Spring 2014

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1 Newsletter Spring 2014 working together CybHR Space Taking gravity out of Employment Law Welcome to the Spring 2014 issue of CybHR Space, your quarterly online legal guide to employment and HR matters. Contents Case Study Who decides whether an employee is disabled? In the Pipeline Recent announcements on employment law reform Legal Update Case Law & Legislation The latest from the law courts and the Government Stop Press Ground-breaking news direct to your desktop Special Feature TUPE reform 2014 Top 10 Tips Pensions auto-enrolment 10 things employers need to know 1

2 Case Study Who decides whether an employee is disabled? Under the Equality Act 2010, before an employer can be answerable for disability discrimination, he must have actual or constructive knowledge of the employee s disability. Therefore, an employer can defend a disability discrimination claim on the basis that he did not know, and could not reasonably be expected to know that the employee was disabled. In Gallop v Newport City Council, the employer tried to do just that. Over several years, G had been intermittently absent for long periods due to stress. The Council had obtained medical advice from its occupational health (OH) advisers who had repeatedly concluded that G was not disabled within the meaning of the legislation, but they gave no explanation for their opinion. G was eventually dismissed for gross misconduct following bullying allegations made by other members of staff and he brought claims of disability discrimination and a failure by the Council to make reasonable adjustments. The Council argued they were unaware G was disabled and they relied on the OH opinions that they had obtained. The Council were successful before both the employment tribunal and the Employment Appeal Tribunal (EAT), which both held that, although G was in fact a disabled person within the meaning of the Equality Act 2010, the Council was entitled to rely on the medical advice it had been given that G was not disabled, and therefore it could not reasonably have been expected to know that he was. However, the Court of Appeal has now overturned that decision. It noted that actual or constructive knowledge of the employee s disability means relevant knowledge of the facts constituting the employee s disability, not whether the employee is, as a matter of law, a disabled person as defined in the legislation. For these purposes, it was for the Council to make its own judgment on the relevant facts as to whether G was disabled, taking into account the statutory criteria of having a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. Whilst it would rightly want professional guidance from OH or other medical advisers, the Court of Appeal said it could not simply rubber stamp the medical professionals opinions. The Court of Appeal observed that an employer, when seeking medical advice, should not simply ask in general terms whether an employee is a disabled person under the Equality Act 2010, but should pose specific practical questions directed to the particular circumstances of the employee s purported disability. The answers to those questions would then provide assistance to the employer in forming his own judgment as to whether the criteria for disability are satisfied. So, when seeking medical advice from an employee s GP or consultant, in addition to posing the general question of whether the doctor thinks the employee is disabled, employers need to be much more focused and ask tailored, specific questions aimed at ascertaining whether the key factual requirements for establishing disability are met. The letter to the doctor should ask a number of detailed questions revolving around the criteria for being a disabled person and the employer should also consider whether there is anything more specific they can ask relating to the employee s particular medical condition. Ultimately, it will then be for the employer to make his own factual judgment on whether an employee is disabled or not. In the Pipeline Stay one step ahead Consultation on zero hours contracts Following an initial Government informal review which took place last summer to gather information on the use of zero hours contracts (ZHCs), it has now carried out a public consultation. The consultation focussed on two main ZHC issues: exclusivity clauses and lack of transparency. A ban on ZHCs was not an option being considered by the consultation but there are proposals to limit the use of exclusivity clauses. Exclusivity clauses are contractual provisions that stop workers from working for another employer even though they are not guaranteed a minimum number of hours and even though there may be no work available with the current employer. The consultation acknowledged that only a small number of ZHC workers are prevented from working from another employer and it recognised that in some particular cases exclusivity is justifiable, for example, where ZHC workers are entrusted with confidential commercial information which would make it problematic should they choose to work with a competitor business at the same time. However, it was concerned that some employers are using exclusivity clauses unjustifiably and the consequence for the worker, where no work is available, is particularly difficult and it undermines choice and flexibility for the worker. The consultation proposed four possible options to address the misuse of exclusivity clauses an outright ban on the use of exclusivity clauses in contracts that offer no guarantee of work, Government guidance being issued on the fair use of such clauses, the production of an employer-led Code of Practice on the fair use of exclusivity clauses (with the option of Government sponsorship of the Code), or doing nothing and relying on existing legal common law redress which allows individuals to challenge exclusivity clauses. In relation to lack of transparency, the Government noted that there is no legal definition of a ZHC and that the term can cover a wide range of employment contracts. Individuals are therefore not always clear on the terms, conditions and consequences of a ZHC and may not even be aware they are employed on a ZHC, and employers do not always fulfil or understand their responsibilities towards their ZHC workers in terms of honouring their employment rights. To improve transparency over ZHCs, the consultation again proposed several options, including improved Government information, advice and guidance on employment contracts and rights and 2

3 entitlement of zero hours workers to benefits, producing model clauses for ZHCs (standard template clauses to be used on a voluntary basis by employers), or an employer-led Code of Practice which covers the fair use of ZHCs generally. The consultation closed on 13 March Given that the Government appears committed to taking some action over ZHCs to combat alleged abuses, employers should expect at least some change in the future. Changes to flexible working regime delayed until June 2014 Extension of the right to request flexible working to all employees with at least 26 weeks service, not just those with certain caring responsibilities, has been held up by delays to the Children and Families Bill. The House of Commons has agreed a new target date of 21 March 2014 for Royal Assent of the Children and Families Bill, delaying the extension of the right to request flexible working. The Government has confirmed that it will no longer be possible to implement the extension on 6 April 2014 and has instead confirmed that the new provisions will now come into force on 30 June The statutory procedure for considering requests for flexible working, which was also due to be abolished with effect from the same date and replaced with a duty on employers to consider flexible working requests in a reasonable manner and a new ACAS Code of Practice, will also be delayed until 30 June In the meantime, ACAS has published its response to its recent consultation on the new Code of Practice on handling requests to work flexibly in a reasonable manner. The draft Code of Practice has been amended to make clear that it is good practice for employers to allow an appeal and to enable employees to be accompanied at meetings by a work colleague. At the same time, ACAS has published new practical guidance (to supplement the Code of Practice) to help employers handle requests by employees to work flexibly in a reasonable manner. Government confirms plans for new Health and Work Service The Government has confirmed its plans to tackle employee sickness absence by launching a new service, the Health and Work Service. According to Government statistics, as many as 960,000 employees were on sick leave for a month or more each year on average between October 2010 and September 2013 and the Government now wants to do more to support businesses to prevent sickness absence turning into long-term welfare dependency by setting up a new support service. The new Health and Work Service will help employees who have been on sickness absence for four weeks to return to work and support employers to better manage sickness absence among their workforce. It is expected to save employers 70 million a year and cut the time people spend off work by 20% to 40%. The Health and Work Service will offer a free and independent work-focused occupational health assessment and case management to employees in the early stages of sickness absence. GPs will be able to refer employees for assessment by the new service once they are absent, or expected to be absent, from work due to illness for four weeks. Employers are also expected to be able to refer employees. The work-focused occupational health assessment will identify the issues preventing an employee from returning to work and draw up a plan for them, their employer and GP, recommending how the employee can be helped back to work more quickly. The plan will include a timetable for a return to work, fitness for work advice, as well as signpost to appropriate help. Employees will be supported throughout their time with the service, so they can return to work as soon as they are able to. It will also provide an advice service on the internet and telephone for anyone who needs it. The new service will be available to all employers, but the Government believes that it will especially benefit Small and Medium Enterprises who currently have limited or no in-house occupational health services. The new service will be funded through the abolition of the statutory sick pay (SSP) Percentage Threshold Scheme (PTS). The PTS is being abolished from 6 April 2014 (see Legal Update Legislation). According to the Government, any financial loss to business from the abolition of the PTS will more than likely be offset by a reduction in lost working days, earlier return to work and increased economic output. The Budget 2013 announced a tax exemption on medical interventions recommended by the Health and Work Service. This was extended at the Autumn Statement to include employer-arranged interventions. Legal Update Case Law Unfair dismissal and rejecting volunteers for redundancy Before embarking on a compulsory redundancy exercise, although not a legal obligation it is good employment practice to ask for volunteers for redundancy first, as it may avoid, or at least reduce, the need for compulsory redundancies. The requesting of volunteers does not oblige an employer to agree to make any or all of the employees who do volunteer redundant, as he has the ultimate right to 3

4 make the final selection according to the future needs of his business. That said, a recent case has held that an employer s failure to accept a volunteer for redundancy made the dismissal of a compulsorily selected employee unfair. In Stephenson College v Jackson, the employer had identified a genuine need to make staff redundancies. It applied selection criteria to a pool of employees, and J received the worst score of the employees in the pool. He was therefore selected for redundancy. However, during the redundancy consultation process, another employee, who had scored second worst under the selection criteria, applied for voluntary redundancy. His application was not accepted and J was still made redundant. J alleged that his dismissal was unfair. The EAT upheld the employment tribunal s finding that J s dismissal was unfair. The employer had been unable to explain why the application for voluntary redundancy had been turned down. There was very little difference in the scores of the two employees, and, according to the tribunal, the reason for the disparity in the scores (the fact that the other employee had a formal qualification whereas J did not) was not, in practical terms, any particular advantage. On that basis, and in light of the fact that the employer s own redundancy policy said that it would try to avoid compulsory redundancies by seeking volunteers for redundancy, the dismissal was unfair. As an employer, you may, of course, have good reasons why you would legitimately want to refuse an application for voluntary redundancy from a particular employee. They may have skills, qualifications or experience that you want to retain in order to meet the future needs of the business, or they may be regarded as a better performing employee generally. The problem for the employer in this case was that it was unable to identify what those reasons were for rejecting the volunteer. The evidence of the manager that conducted the selection exercise was that he had no idea why the application for voluntary redundancy had been rejected, and the facts indicated that there was very little to choose between the skills of the two employees. Thus, refusing an application for voluntary redundancy will not automatically make a subsequent compulsory redundancy unfair, but an employment tribunal will expect you to be able to objectively explain the rationale behind your decision when defending an unfair dismissal claim brought by the compulsorily selected employee. Unfair dismissal and using external consultants Occasionally, employers may engage the services of external consultants either to investigate disciplinary allegations, to chair the disciplinary hearing or to hear an appeal against a disciplinary sanction. Smaller employers sometimes opt for this when they feel they have insufficient resources in-house to deal with the disciplinary issue in a fair and unbiased manner. Two recent EAT cases have looked at this in relation to the fairness of dismissal. In GM Packaging (UK) Ltd v Haslem, the employer had just nine employees. The managing director became aware of H (a senior manager) engaging in sexual activity with another member of staff in an empty office on company premises after hours. He delegated an external HR consultant to advise on whether dismissal should take place. Following an investigation, the HR consultant recommended dismissal and the managing director accepted this recommendation and authorised H s dismissal. When H appealed, this was also delegated to an HR consultant and the appeal against dismissal was rejected. H claimed unfair dismissal. The employment tribunal held that whilst it was fair and reasonable to delegate matters to an HR consultant, the allegations of sexual activity on company premises did not constitute gross misconduct and so dismissal was outside the band of reasonable responses. Overturning this decision, the EAT agreed that it can indeed be fair and reasonable for an employer to dismiss an employee on the recommendation of an external HR consultant but disagreed that the dismissal was outside the band of reasonable responses. H had been dismissed for both the sexual activity and for making derogatory remarks which revealed a complete lack of respect for his employer. The HR consultant had taken both of these matters into account in making the recommendation to dismiss, which the managing director had followed, and this decision was within the band of reasonable responses. In Kisoka v Ratnpinyotip t/a Rydevale Day Nursery, the employer had taken the decision to dismiss the employee but when the employee appealed, she appointed an independent appeal panel to hear the appeal. The appeal panel decided to uphold the employee s appeal against dismissal (and therefore it overturned the employer s decision to dismiss), but the employer refused to implement that decision and she would not reinstate K. K claimed unfair dismissal. Upholding the decision of the employment tribunal, the EAT held that the employer s failure to implement an appeal panel s decision in these circumstances may nevertheless be reasonable and it does not automatically make the dismissal unfair. Exceptional circumstances are not required for the employer to depart from the decision of the appeal panel. The EAT stated that the duty of an employment tribunal in an unfair dismissal case remains to apply the statutory test of fairness to the individual circumstances of each case as a whole. It was significant in this case that the tribunal had found that the employer s investigation had been reasonable and that there were no terms of engagement between the employer and the appeal panel which made it clear that the employer would implement the decision of the panel, nor that the panel would make the final decision. Both the tribunal and EAT took into account that the employer was small and she was not required to do more than she had, nor was she required to have referred the appeal to an independent appeal panel. As a result, the EAT held that the tribunal was entitled to find that the decision to dismiss K was fair. The ambit of the without prejudice rule Where settlement negotiations fall within the without prejudice rule, they are inadmissible as evidence in any subsequent employment tribunal proceedings. The rule does, however, require there to be an existing employment dispute between the parties and it does not apply where there has been some unambiguous impropriety. A recent EAT case has looked both at what constitutes a dispute and what amounts to unambiguous impropriety. 4

5 In Portnykh v Nomura International plc, P brought a claim of automatically unfair dismissal for having made protected whistleblowing disclosures. His case was that he had never been given a reasonable explanation for his dismissal. The employer s case was that it had told P he would be dismissed for misconduct but that, the next day, P suggested structuring the termination as a redundancy dismissal, which the employer was prepared to do. Correspondence, including a draft settlement agreement, was then exchanged between the parties on a without prejudice basis but negotiations subsequently broke down. The employer later sought to rely on those documents as establishing its version of the facts. P argued they were without prejudice and so could not be admitted into evidence in the employment tribunal proceedings. An employment judge found that the without prejudice rule did not apply because there was no dispute in existence at the time the correspondence was entered into. She went on to find that, even if the rule were engaged, it would be an abuse to allow P to rely on it to exclude evidence showing that he requested his dismissal to be characterised as redundancy. In the judge s view, this would amount to unambiguous impropriety. P appealed to the EAT. The EAT allowed P s appeal against the finding that there was no dispute capable of attracting without prejudice privilege. Looking at the factual matrix prior to the exchange of correspondence, there clearly was a dispute in existence. Although there is not automatically a dispute whenever a settlement agreement is offered by an employer, if the employer announces an intention to dismiss the employee for misconduct and there are then discussions about an alternative manner of dismissal, there is either a present dispute or the potential for a future dispute because those are negotiations about a disagreement which is likely to lead to litigation if not otherwise settled. It is not necessary for any legal proceedings to have been brought, nor for any specific complaint of, for example, unfair dismissal or some other breach to have been raised by the employee, for there to be a potential dispute. The EAT also overturned the decision that the unambiguous impropriety exception applied. It stated that the employment judge did not appreciate how limited the concept of unambiguous propriety is and that it means something far more than simply being disadvantaged by the exclusion of evidence. This case indicates that the without prejudice rule may have a broader application than previous cases might have suggested because it widens the scope of what may amount to a dispute between employer and employee. Although it worked against the employer in this particular case, it is generally good news for employers when entering into settlement negotiations and agreements with employees in reliance on the without prejudice rule. Whistleblowing disclosures In order for an employee to assert that their dismissal is automatically unfair or for a worker to assert they have been subjected to a detriment on the grounds of whistleblowing, they must be able to show they have made a qualifying disclosure which is protected because it has been made to the right person and in the right way. A qualifying disclosure is any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following: That a criminal offence has been committed, is being committed or is likely to be committed. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject. That a miscarriage of justice has occurred, is occurring or is likely to occur. That the health or safety of any individual has been, is being or is likely to be endangered. That the environment has been, is being or is likely to be damaged. That information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. In Norbrook Laboratories (UK) Ltd v Shaw, the EAT has held that a single qualifying disclosure can be made in multiple communications to an employer, even if the individual communications are not themselves qualifying disclosures. S, who managed a sales team, had sent three separate s to two different managers the health and safety and HR managers expressing a number of concerns over the hazards of his employees driving in snowy conditions. Winter 2010 was particularly severe and various members of S s team had raised concerns with him about driving to client appointments in the snow. S alleged that his later dismissal was automatically unfair and that he had been subjected to a detriment as a consequence of making that qualifying disclosure. The EAT stated that separate communications considered together (even if made to different individuals in different departments) can amount to a qualifying disclosure, even if separately each communication was not such a disclosure. S s three s taken together could amount to a qualifying disclosure about endangerment to employees health and safety. The EAT noted that, on the facts, the recipient of a later from S would have been aware of his previous communication. It was clear in S s last that he was referring to earlier s and its recipient could have been in no doubt that these had been about the danger of driving conditions for his team. One communication may be regarded as embedded in another and so there was no error of law in considering S s communications with his employer as a whole in determining whether or not there had been a qualifying disclosure. Obviously, this does not mean that S has won his unfair dismissal and detriment claims yet but it does now mean that they can proceed to a full hearing on the basis that he did indeed make a qualifying disclosure. Indirect religious discrimination In Eweida v UK, the European Court of Human Rights ruled last year that, under Article 9 of the European Convention of Human Rights, protection from discrimination should be available where a practice disadvantages a single individual due to their religious belief, whether or not there are others similarly disadvantaged; in contrast UK law (the Equality Act 2010) requires group disadvantage to establish an indirect discrimination claim. This issue has now been explored by the Court of Appeal. 5

6 In Mba v Mayors and Burgesses of the London Borough of Merton, M, a practising Christian, was employed by the London Borough of Merton as a care assistant at a children s home. Full-time employees were contractually required to work on two of three weekends over a three-week period. After two years of accommodating M s wish to abstain from Sunday shifts owing to her deep Christian beliefs, the employer required M to work as contractually obliged. M refused to do so, was disciplined and subsequently resigned. She claimed that the requirement to work on Sundays amounted to a provision, criterion or practice (PCP) that indirectly discriminated against Christians on the ground of religion or belief under what is now the Equality Act An employment tribunal found that the PCP put Christians at a particular disadvantage but was a proportionate means of achieving the employer s legitimate aims. Thus, M could lawfully be required to work on Sundays. In reaching this conclusion, the tribunal stated that M s belief that Sunday should be a day of rest and worship, while deeply held, was not a core component of the Christian faith. M appealed against this decision, arguing that the tribunal had impermissibly adjudicated on what was core to Christian belief. The EAT held that the tribunal had been entitled to conclude that the requirement for Sunday working was a proportionate means of achieving the employer s legitimate aims. In addition, the tribunal had not impermissibly adjudicated on what was core to Christian belief. The tribunal was commenting on the degree to which Christians generally would be affected by the PCP, which was relevant to its assessment of proportionality, not on what was important to the Christian faith, which would have been impermissible. M appealed against the decision. The Court of Appeal has now held that the employment tribunal was right to hold that the employer was justified in requiring M to work on Sundays. However, it considered that, as the case engaged the right to religious freedom under Article 9 of the European Convention on Human Rights, the tribunal had erred, when assessing justification, by taking into account that any group impact was limited as the belief that Sunday should be a day of rest was not a core Christian belief a particular religious belief does not need to be a core component of the relevant faith to receive protection under discrimination law as Article 9 does not require a group disadvantage to be shown. Whilst it was not possible to read the UK statutory provisions on indirect discrimination in such a way as to ignore the need to establish group disadvantage, the concept of justification could be read compatibly with Article 9. It therefore ruled that a tribunal should not view an employee s case on justification as any weaker simply because the beliefs are not more widely shared or do not constitute a core belief of any particular religion. However, as stated above, M s appeal failed in any event as the tribunal s error here had not materially affected its conclusion. Once the employer had established on the facts that there was really no viable or practicable way of providing the service so that the children s home was safely run other than by requiring all staff to work on Sundays as required by their contracts, M s claim was bound to fail. Although the employee failed in this case because the employer was able to objectively justify its Sunday working requirement, what is clear is that employers should not treat requests to adjust working conditions in order to accommodate an employee s religious beliefs any less seriously simply because the particular belief is not widely shared. Collective consultation on redundancy In the autumn 2013 issue of CybHR Space, we discussed the EAT s decision in the joined cases of USDAW and another v WW Realisation 1 Ltd (in liquidation) and another; USDAW v Ethel Austin Ltd (in administration). This is the collective redundancy consultation case in which the EAT held that the words at one establishment in section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 should be ignored for the purpose of deciding whether collective consultation obligations are triggered where the employer is proposing to dismiss as redundant 20 or more employees within a period of 90 days or less. The Court of Appeal has now referred this case to the Court of Justice of the European Union (CJEU). This means that months of uncertainty now lie ahead for employers carrying out multi-site redundancies until the CJEU hears the case. Legal Update Legislation Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 came into force on 31 January 2014 see Special Feature for further details. National Minimum Wage (Variation of Financial Penalty) Regulations 2014 Rogue employers who do not pay their workers the national minimum wage (NMW) now face an increased financial penalty of up to 20,000 as part of the Government s crackdown on employers who break the law. The National Minimum Wage (Variation of Financial Penalty) Regulations 2014 came into force on 7 March 2014 and they have amended the amounts specified in section 19A of the National Minimum Wage Act 1998 which are used to calculate financial penalties 6

7 for employers who have not paid their workers the NMW. Section 19A provides that a Notice of Underpayment issued by HMRC must generally require the employer to pay a financial penalty to the Secretary of State. The financial penalty is calculated as a percentage of the total underpayment of the NMW for all workers as set out in the Notice of Underpayment. The regulations have amended the percentage figure from 50% to 100% of the total underpayments, and have increased the figure for the maximum financial penalty from 5,000 to 20,000. The Government also wants to go further and will bring in legislation at the earliest opportunity so that the maximum 20,000 penalty can apply to each underpaid worker, rather than the maximum fine applying to each employer. Primary legislation is needed to introduce a penalty of up to 20,000 per worker into the National Minimum Wage Act The increase in the penalties for non-payment follow changes made last year to make it easier to name and shame employers who fail to pay the NMW. Five employers who owed their workers thousands of pounds for failing to pay them the correct NMW have been the first to be named and shamed by the Government under the tougher naming and shaming scheme that came into effect on 1 October Under the previous scheme, there were seven criteria for naming, and an employer had to meet one of these to be named plus the financial criteria. These criteria have been removed and, under the revised scheme, the Government will name all employers that have been issued with a Notice of Underpayment by HMRC unless there are very exceptional cases. This notice sets out the owed wages to be paid by the employer together with the penalty for not complying with NMW law. Employers have 28 days to appeal against the notice. If the employer does not appeal or unsuccessfully appeals against the notice, the Government will consider them for naming. The employer then has 14 days to make representations outlining whether they meet any of the very exceptional criteria: naming by the Government carries a risk of personal harm to an individual or their family or there are national security risks associated with naming, or there are other factors which suggests that it would not be in the public interest to name the employer or company. The Government will normally expect to inform the employer of the outcome of any representations made within 14 days of receipt. If it does not receive any representations or the representations received are unsuccessful, the employer will be named via a formal press release under the scheme. Legal Aid, Sentencing and Punishment of Offenders Act 2012 Significant reforms to provisions on the rehabilitation of offenders, contained in section 139 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, came into force on 10 March 2014 by virtue of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 9, Saving Provision and Specification of Commencement Date) Order The reforms to the Rehabilitation of Offenders Act 1974 mean that some offenders are required to disclose details of their low level convictions to potential employers for a shorter period of time than previously. However, all offenders will still always have to declare previous convictions when applying for jobs in sensitive workplaces such as schools and hospitals or working with people in vulnerable circumstances. The most serious offenders will still have to declare their convictions for the rest of their lives when applying for jobs. The move is part of the Government s ongoing commitment to tackling reoffending so that offenders can turn their back on a life of crime and can get back into honest work. The reforms have also changed the way some rehabilitation periods are set in order to better reflect the seriousness of the sentences imposed. Under the Rehabilitation of Offenders Act 1974, after a specified period of time most convictions and cautions become spent. The offender is then considered to be rehabilitated. The offender does not have to reveal their spent convictions or cautions to an employer unless the occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, for example where the individual will be working with children (for occupations listed in the Exceptions Order, individuals have to disclose unprotected cautions and convictions, regardless of whether they are spent or unspent ). However, if asked to disclose convictions, an unspent conviction must always be declared by the individual. This includes a recent conviction where the specified rehabilitation period has not come to an end. Under the new system, rehabilitation periods for community orders and custodial sentences comprise the period of the sentence plus an additional specified period, rather than all rehabilitation periods starting from the date of conviction as it was under the previous regime. So, for example, an adult offender sentenced to two and a half years custody, who would previously have had to declare their criminal conviction for ten years from the date of conviction, will now have to disclose their conviction for the period of the sentence plus a further four years (giving a total rehabilitation period of 6.5 years). Under the reforms, the rehabilitation periods for custodial sentences have changed to: For a sentence of six months or less the previous rehabilitation period of seven years from date of conviction has become the period of sentence plus a buffer period of two years. For a sentence of six to 30 months the previous rehabilitation period of 10 years from date of conviction has become the period of sentence plus a buffer period of four years. For a sentence of 30 months to four years previously never spent has become the period of sentence plus a buffer period of seven years. For a sentence over four years as previously, is never spent. 7

8 For non-custodial sentences, they have changed to: For a community order or youth rehabilitation order the previous rehabilitation period of five years from date of conviction has become a buffer period of one year applying from the end of the sentence. For a fine the previous rehabilitation period of five years has become one year. For an absolute discharge the previous rehabilitation period of six months has become none. For a conditional discharge, referral order, reparation order, action plan order, supervision order, bind over order or hospital order the previous rehabilitation period varied, but was mostly between one year and the length of the order, and this has become the period of the order. As with the previous scheme, the above periods are halved for persons under 18 at date of conviction (except for custodial sentences of up to six months where the buffer period is 18 months for persons under 18 at the date of conviction). Police Act 1997 (Criminal Records) (Amendment) Regulations 2014 and Police Act 1997 (Commencement No. 12) (England and Wales) Order 2014 Criminal conviction certificates under section 112 of the Police Act 1997 finally came into force in England and Wales on 10 March The legislation provides for the Disclosure and Barring Service to provide a criminal conviction certificate (also known as basic disclosure) on request to an individual applicant who pays the prescribed fee. A criminal conviction certificate either gives the prescribed details of every unspent criminal conviction or conditional caution of the applicant recorded in central records or states there is no such conviction. A fee of 25 is prescribed for applications. The prescribed details of any unspent convictions or conditional cautions which must be included on a criminal conviction certificate are also set out. Enterprise and Regulatory Reform Act 2013 (Commencement No. 5, Transitional Provisions and Savings) Order 2014 The Enterprise and Regulatory Reform Act 2013 (Commencement No. 5, Transitional Provisions and Savings) Order 2014 confirms that the provisions in the Enterprise and Regulatory Reform Act 2013 relating to ACAS early conciliation for employment claims and the financial penalty regime will both come into force on 6 April The early conciliation provisions apply to employment tribunal claims presented on or after 6 May 2014 (with transitional provisions applying to those presented on or after 6 April 2014 but before 6 May 2014) and the financial penalties provisions apply in relation to employment tribunal claims presented on or after 6 April As far as financial penalties are concerned, Section 16 of the Enterprise and Regulatory Reform Act 2013 adds a new section 12A to the Employment Tribunals Act 1996 which contains a discretionary power for an employment tribunal to impose a financial penalty on respondent employers who lose at employment tribunal and are found to have breached a claimant s employment rights, where the tribunal is of the opinion that the employer s breach has one or more aggravating features. The amount of the penalty is equal to 50% of the financial compensation awarded in favour of the claimant, subject to a minimum of 100 and a maximum of 5,000. However, a penalty may still be imposed even where no financial award has been made against the employer. There is a 50% discount for prompt payment within 21 days. The tribunal will have regard to the employer s ability to pay in deciding whether to order him to pay a penalty and in deciding the amount of that penalty. The penalty is payable to the Secretary of State, not to the claimant, and is paid into the Consolidated Fund. Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 The Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 set out the detail of the EC scheme and they include new EC Rules of Procedure. Under the new rules for EC, claimants will need to contact ACAS before they are able to lodge an employment tribunal claim. The requirement applies to relevant proceedings in the Employment Tribunals Act 1996 which includes most of the main tribunal claims. However, whilst the requirement to contact ACAS under the EC provisions is mandatory for claimants, actually participating in EC is voluntary for both the claimant and prospective respondent. In summary, the new rules require a claimant to submit an EC form to ACAS or to telephone ACAS. ACAS will then make reasonable attempts to contact the claimant. If the claimant consents, ACAS must also make reasonable attempts to contact the prospective respondent. If ACAS is unable to make contact with the claimant or prospective respondent, it must conclude that settlement is not possible. Otherwise, for up to one calendar month, starting on the date of ACAS s receipt of the EC form or the claimant s telephone call, a conciliation officer must endeavour to promote a settlement between the parties. This period may be extended once by a conciliation officer for up to a maximum of 14 days, provided that the parties consent and the conciliation officer considers that there is a reasonable prospect of achieving a settlement before the expiry of the extended period. The claimant will only be able to present their employment tribunal claim once they have received an EC certificate from ACAS. ACAS must issue a certificate if the conciliation officer concludes that a settlement of a dispute is not possible during the period for EC or any extension, or that period expires without a settlement having been reached. The certificate will be sent by unless no address has been provided, in which case it will be sent by post. EC is free for both parties. Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2014 The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2014 make consequential amendments to the Employment Tribunal Rules of Procedure 2013 to allow for the rejection of a claim presented without an EC certificate and to 8

9 reflect the introduction of the financial penalties regime. In addition, the Enterprise and Regulatory Reform Act 2013 (Consequential Amendments) (Employment) Order 2014 makes consequential amendments to existing employment legislation to take account of the introduction of EC. Finally, the Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2014 amends section 18(1) of the Employment Tribunals Act Section 18(1) lists the proceedings which are relevant proceedings for the purposes of EC. The amendments add to the list of jurisdictions in section 18(1). Employment Rights (Increase of Limits) Order 2014 The Employment Rights (Increase of Limits) Order 2014 will come into force from 6 April The Order increases the limits applying to certain awards of employment tribunals and to other amounts payable under employment legislation. The main changes are: Maximum amount of a week s pay for the purpose of calculating a redundancy payment or the basic or additional award of compensation for unfair dismissal or payments to employees in the event of insolvency increases from 450 to 464. Limit on the amount of compensatory award for unfair dismissal increases from 74,200 to 76,574 (there is also an additional cap of one year s salary on the compensatory award for unfair dismissal). Limit on the daily amount of statutory guarantee payment increases from to The increases apply where the event giving rise to the entitlement to compensation or other payment occurs on or after 6 April The date is determined differently depending on the type of claim brought. In unfair dismissal claims, this date is the effective date of termination of employment. In guarantee payment claims, it is the day in respect of which the payment is due. The increases reflect an increase of 3.2% in the retail prices index from September 2012 to September Welfare Benefits Up-rating Order 2014 The Welfare Benefits Up-rating Order 2014 sets the new rates for statutory sick pay (SSP), statutory maternity pay (SMP), statutory paternity pay (SPP) and statutory adoption pay (SAP) for tax year 2014/15. The changes that come into force on 6 April 2014 are: The weekly rate of SSP will increase from to The standard weekly rate of SMP and the weekly rates of SPP and SAP will increase from to The prescribed weekly rate of maternity allowance will also increase from to but with effect from 7 April Finally, under the Social Security (Contributions) (Limits and Thresholds) (Amendment) Regulations 2014, the weekly lower earnings limit that applies to National Insurance contributions, below which employees are not entitled to SSP, SMP, SPP or SAP will increase from 109 to 111. Statutory Sick Pay (Maintenance of Records) (Revocation) Regulations 2014 The Statutory Sick Pay (Maintenance of Records) (Revocation) Regulations 2014 will come into force on 6 April Under the regulations, employers will no longer be required to maintain records of employees relating to sickness absence and payment of SSP from 6 April Instead, employers will be free to keep whatever records best suit the needs of their business. Currently, the Statutory Sick Pay (General) Regulations 1982 require an employer to maintain, for three years after each tax year, certain minimum records of employees sickness absence and SSP payments. The Percentage Threshold Scheme (PTS), which allows employers to claim reimbursement of their costs when the amount of SSP paid exceeds 13% of their National Insurance contribution liability to HMRC, is being abolished separately (see below). The records support claims for reimbursement under the PTS and so will no longer be required when the PTS is abolished. Statutory Sick Pay Percentage Threshold (Revocations, Transitional and Saving Provisions) (Great Britain and Northern Ireland) Order 2014 The Statutory Sick Pay Percentage Threshold (Revocations, Transitional and Saving Provisions) (Great Britain and Northern Ireland) Order 2014 will come into force on 6 April 2014, subject to transitional provisions. It revokes the PTS provisions which provide for employers to recover certain payments of SSP. Once in force, employers will no longer be able to recover any SSP payments, subject to the transitional provisions. The transitional provisions provide for the PTS to continue to have effect for two years following its revocation for the purposes of entitling an employer to recover an amount of SSP (whether paid before, on or after 6 April 2014) in respect of any day of incapacity for work falling before 6 April Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2014 The Automatic Enrolment (Earnings Trigger and Qualifying Earnings Band) Order 2014 will come into force on 6 April A worker s rights under the automatic enrolment pensions framework are determined according to the category of worker into which they fall. 9

10 That categorisation depends on age and earnings, relative to set statutory figures, namely the minimum earnings threshold and the lower and upper qualifying earnings boundaries. These statutory figures are reviewed annually in April. This Order states that the minimum earnings threshold for automatic enrolment will be increased from 9,440 to 10,000 and the lower and upper qualifying earnings boundaries will be increased from 5,668 to 5,772 and from 41,450 to 41,865 respectively. Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014 The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014 has been published and is due to come into force on 6 April 2014, or the day after the Order is made, if later. Section 15(2) of the Immigration, Asylum and Nationality Act 2006 allows the Secretary of State to serve an employer with a penalty notice, for a specified amount not exceeding the prescribed maximum, where they employ an adult aged over 16 who is subject to immigration control and does not have leave to enter or remain in the UK. This also applies to leave which is invalid, has ceased to have effect or is subject to a condition preventing them being employed. This Order will increase the maximum fine, which is set out in the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2008, from 10,000 to 20,000 per illegal worker. Stop Press Ground-breaking news direct to your desktop Bulgarian and Romanian nationals now able to work in UK without restrictions From 1 January 2014, Romanian and Bulgarian nationals who wish to work in the UK are no longer required to obtain prior authorisation from the Home Office. They no longer need an Accession worker card or registration certificate as evidence of permission to work or of their right to reside as a worker. They also have the right to reside in the UK as a job seeker if they are actively seeking work and have a genuine chance of getting a job. This means Romanian and Bulgarian nationals now have the same access to the UK employment market as any other European Economic Area (EEA) citizens (with the exception of Croatian nationals, to whom special restrictions still apply). ACAS Code of Practice on Disciplinary and Grievance Procedures ACAS has recently consulted on a change to the wording of paragraphs 15 and 36 of the ACAS Code of Practice on Disciplinary and Grievance Procedures relating to the statutory right of workers to be accompanied at disciplinary and grievance hearings. The change comes as a result of the EAT s decision last year in Toal and another v GB Oils Ltd, which suggested the Code did not accurately reflect the law on the statutory right to be accompanied and, in particular, the law relating to the need to make a reasonable request. Section 10 of the Employment Relations Act 1999 states that workers have a right to be accompanied at a disciplinary or grievance hearing where they make a reasonable request. What constitutes a reasonable request is not defined in the legislation but the ACAS Code of Practice states that it would not normally be reasonable for a worker to insist on being accompanied by a companion who would have to travel from a remote geographical location if someone suitable and willing was available on site, or a companion whose presence would prejudice the hearing. However, in Toal, the EAT stated that if a worker has been invited to a disciplinary or grievance hearing then, provided they made a reasonable request to be accompanied at the hearing, they have the absolute right to choose whoever they like as a companion, provided the companion is from one of the categories set out in the legislation (i.e. a fellow worker, a trade union official or an appropriate and certified trade union representative). The proposed changes to the ACAS Code of Practice make clear that workers have a right to choose whoever they like as a companion, so long as they come from one of the defined categories of companion. However, it is proposing to retain the good practice point that workers should have some regard to the effect that their choice of companion will have on the disciplinary or grievance process itself so it also states that it may neither be sensible nor helpful to request accompaniment by a colleague from a geographically remote location when someone suitably qualified is available on site, nor to be accompanied by a colleague whose presence might prejudice the hearing or who might have a conflict of interest. The revised wording also gives some guidance on what making a reasonable request might or might not involve, by including some indications of the manner in which requests to be accompanied might be made. It states that the request does not have to be in writing or made within a certain time frame but workers should consider how they make their request so that it is clearly understood and provides enough time for it to be considered by their employer. The consultation closed on 7 January Employers may need to amend their disciplinary and grievance procedures to reflect the revised ACAS Code of Practice once it has been amended. 10