Employment Law Reform Workshop

Transcription

1 Employment Law Reform Workshop

2 Employment Law Workshop Introductions Housekeeping Agenda Questions

3 Agenda Claims in the Employment Tribunal Charlotte Gilbert Reform of TUPE Joanne Henderson Settlement Issues Joanne Evans

4 Claims in the Employment Tribunal Charlotte Gilbert Solicitor

5 Unfair Dismissal Political Affiliation Qualifying period for unfair dismissal claims increased from 1 year to 2 years for those employed on or after 6 April 2012 No qualifying period where reason for dismissal is, or relates to, employee s political opinions or affiliation not a new form of automatically unfair dismissal applies where effective date of termination is on or after 25 June 2013

6 Whistleblowing Changes as of 25 June 2013: Disclosure must be in the public interest (loophole closed on disclosures of a personal nature) No longer a need for disclosure to be made in good faith but Tribunal can reduce compensation by up to 25% Introduction of personal liability for employees who victimise whistleblowers and employer vicariously liable for employees

7 Whistleblowing continued Steps for employers: Update policies to include public interest requirement and remove good faith requirement Consider training so managers can identify protected disclosures and all staff are aware of personal liability Update contracts and disciplinary policies to provide that harassment or subjecting whistleblower to a detriment will be a disciplinary matter

8 Discrimination Third party harassment: As of 1 October 2013, an employer s liability for third party harassment under Equality Act 2010 is repealed N.B. employers can still be liable under general harassment provisions and case law Future change: Discrimination questionnaires to be abolished as of 6 April 2014

9 Post-Employment Victimisation Equality Act 2010 expressly excludes protection against post-employment victimisation at odds with previous position and EU Law Recent case law shows contrasting EAT decisions: Rowstock v Jessemey held no protection under EQA 2010 Onu v Akwiwu held EQA 2010 does protect postemployment victimisation Await clarification - Rowstock v Jessemey appeal on 5 November 2013

10 Tribunal Fees For claims raised on or after 29 July 2013: Fee Type/who is responsible Level 1 claims (e.g. unpaid wages, holiday pay, SRP) Level 2 claims (e.g. UD, discrimination) Issue fee Hearing fee Who is responsible Claimant Claimant

11 Tribunal Fees Continued New remission system introduced on 7 October 2013 Tribunals have discretionary power to order losing party to reimburse fees In practice: Fewer claims? Wait and see approach to settlement by employers? Judicial review application by UNISON

12 Compensation Limits Where effective date of termination is on or after 29 July 2013, compensatory award is the lower of: one year s gross pay; or current cap of 74,200. One year s pay does not include pension contributions, discretionary bonuses etc. Useful for employers in settlement of low value claims

13 Financial Penalties Penalties for losing employer where behaviour has one or more aggravating features 50% of any compensation (between 100 and 5,000) Reduction of 50% if paid within 21 days Paid to Secretary of State (not the Claimant) Expected April 2014

14 Financial Penalties Continued In practice: How will Tribunal interpret aggravating features? Guidance suggests: Where action was deliberate or committed with malice Relevant factors include size of employer, whether has a dedicated HR team and duration of breach

15 Reform of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) Joanne Henderson Partner

16 Reform of TUPE Background to Reform The Acquired Rights Directive TUPE 1981 TUPE 2006 Gold plating Service provision changes Employee liability information

17 Service Provision Change TUPE 1981 Regulations Suzen Case economic entity retaining identity asset reliant services labour intensive services TUPE 2006 Regulations Regulation 3(1)a Regulation 3(1)b Service Provision Change (Gold plating) An organised grouping of employees..that has as its principal purpose the carrying out of activities on behalf of a client

18 Service Provision Change An organised grouping of employees BIS Guidance : essentially dedicated Eddie Stobart case Ceva Freight case

19 Service Provision Change fundamentally and essentially the same not identical look at nature not purpose Examples: OCS Case Connect Up Case Nottinghamshire NHS Trust Case

20 Service Provision Change Reform Proposal to remove gold plating (including Regulation 3(1) b(spc)) Government Consultation and Response New Proposal : SPC provisions will remain and will apply where activities are: fundamentally and essentially the same

21 TUPE and Employee Liability Information TUPE 1981 TUPE 2006 (Gold plated) Regulation 11(2) ELI within 14 days Government Proposals for Reform and Consultation New Proposals for Reform ELI within 28 days

22 TUPE and Reorganisation Automatic Unfair Dismissal Exception: ETO reason entailing changes in the workforce : Numbers Functions The Relocation issue: The anomaly Examples Proposals for Reform Changes in location of workforce as an ETO

23 TUPE and Reorganisation Redundancy consultation requirements (under TULR(C)A 1992) 20 or more redundancies 100 or more redundancies Uncertainty about the effect of pre-transfer consultation Proposals for Reform to TULR(C)A 1992

24 TUPE and Other Reform Consultation requirements for micro businesses Static approach on collective agreements Timing Draft Regulations expected December 2013 Implementation expected January 2014 Pensions

25 Settlement Issues Joanne Evans Partner

26 Settlement Agreements On 29 July 2013 Compromise Agreements became known as Settlement Agreements New ACAS Code of Practice regarding Settlement Agreements Current rules regarding Compromise Agreements still apply For example: in writing employee must take independent legal advice

27 Pre-termination Negotiations Under existing without prejudice rule, pre-termination negotiations are only inadmissible if there is a pre-existing dispute between the parties Under the new Code of Practice, pre-termination negotiations are inadmissible in ordinary unfair dismissal claims regardless of whether there is a pre-existing dispute between the parties The new rule will not apply if there has been improper behaviour Improper behaviour includes, amongst other things: Putting undue pressure on a party Giving a party less than ten days to consider an offer All forms of harassment, bullying and intimidation

28 Pre-termination Negotiations In practice: Unlikely to be of wide application as employees will bring other claims (such as discrimination) Usually a company will want a Settlement Agreement to be reached quickly (sooner than the 10 day limit) Limited consequence of non compliance Practical tips

29 Mandatory conciliation - April 2014 Early ACAS Conciliation Before instituting proceedings Claimant sends Acas prescribed information Acas sends copy of information to conciliation officer Acas tries to promote settlement within a prescribed period (one month) If no settlement Acas issues a certificate and claim can proceed

30 Mandatory conciliation April continued Claimant may not issue proceedings without a certificate Time limits extended when a certificate is issued the time period runs again No obligation on parties to conciliate

31 Mandatory conciliation - April 2014 In practice: Will parties be willing to engage? Prescribed information too limited? Tactics: Ascertain what the Claimant wants Assess what the Claimant wants v the Tribunal fees Wait and see approach? Commercial decision

32 Questions? Thank You!

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