Welcome! Surrey HR Forum 08/11/13

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Janis Moody
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1 Welcome! Surrey HR Forum 08/11/13

2 Employment law update an illustrated guide to 2013/14 Tim Randles, Associate Director Penningtons Manches LLP

3 Introduction Reform of employment law: background The red tape challenge: reducing the burden tribunal Reform fees and remissions mandatory ACAS conciliation

4 Introduction The red tape challenge: reducing the burden (cont d) repeal of Equality Act 2010 Provisions Sickness Absence Review

5 Introduction The red tape challenge: more red tape reform! Family Friendly Policies Shared Parental Leave flexible working

6 Tribunal Reform fees and remissions Fees in Tribunals and EAT introduced 29 July 2013 Fee payable when a claim is presented (issue fee) when claimant notified of hearing being listed (hearing fee) (by a date specified in the notice) judicial mediation fee of 600 payable by respondent by date in notice listing mediation

notified of hearing being listed (hearing fee) (by a date specified in the

7 Tribunal Reform fees and remissions Amount of fee depends on type of claim Employment Tribunal: Type A eg Statutory redundancy Breach of contract Failure to inform and consult as under TUPE Type A fees (a) Issue Fee: 160 (b) Hearing Fee: 230

redundancy Breach of contract Failure to inform and consult

8 Tribunal Reform fees and remissions Employment Tribunal Type B eg Unfair dismissal Discrimination Whistle blowing Type B fees (a) Issue Fee: 250 (b) Hearing Fee: 950

9 Tribunal Reform fees and remissions Employment Tribunal payment can be made online, by post or by hand time limits for submission continue to run!

10 Tribunal Reform fees and remissions EAT fees appellant pays 400 issue fee appellant pays 1,200 hearing fee dates for payment will be specified in a notice issued by the EAT

11 Tribunal Reform fees and remissions New fee remission (i.e. fee waiver) scheme came into force 7 October 2013 Individuals (including sole traders) can apply for fee remission Businesses and other organisations cannot apply

Individuals (including sole traders) can apply for fee

12 Tribunal Reform fees and remissions Two tests must be passed disposable capital test monthly gross income test Resources of a partner the applicant s capital and income will be taken to include that of a partner (unless the partner has a contrary interest) partner is person who the applicant lives with as part of a couple (or usually does)

will be taken to include that of a partner (unless the partner has a contrary

13 Mandatory ACAS conciliation Current position Acas has power to conciliate any type of workplace issue that could turn into an employment tribunal claim provides pre-claim conciliation service which can be requested by the parties conciliation is by conciliation offices who are impartial go-betweens who report offers and counter-offers to settle proceedings between parties to ET litigation use ACAS form COT 3 to set out agreed terms

by the parties conciliation is by conciliation offices who are impartial go-betweens who report offers and

14 Mandatory ACAS conciliation Early conciliation new mandatory procedure Government will impose a duty on parties and Acas to attempt early conciliation before issue of claim framework is set out in the Employment and Regulatory Reform Act 2013 (ERRA 2013) step 1: completed prescribed form sent to Acas step 2: conciliation officer contacts claimant to agree to proceed and form sent to the officer step 3: conciliation officer to promote settlement in prescribed period step 4: If settlement not reached, certificate issued

step 1: completed prescribed form sent to Acas step 2: conciliation officer contacts claimant to agree to proceed and form sent to

15 Mandatory ACAS conciliation The prospective claimant will be unable to pursue most claims without the certificate ERRA 2013 provides for limitation periods to be extended to allow time for the procedure Secretary of State has the power to set out which types of case will be exempt Exempt claims are those where the early conciliation (EC) would not be practicable or appropriate

for the procedure Secretary of State has the power to set out which types of case will be

16 Mandatory ACAS conciliation Prospective respondent can request EC where they consider a matter might give rise to proceedings if not settled no stop-the clock provisions no specified period of time for EC to take place if the claimant declines the offer of conciliation the officer will issue a certificate confirming their obligation to contact Acas has been satisfied no suspension of limitation period claimant can make a claim

place if the claimant declines the offer of conciliation the officer will issue a certificate confirming

17 Mandatory ACAS conciliation If an EC form is sent to ACAS by the claimant in the same dispute - the stop-the-clock provisions will be triggered; and ACAS will manage the EC process as for any other prospective claimant The ACAS settlement agreement has to be carefully drafted to ensure it covers all claims, including those not stated in the Tribunal proceedings

process as for any other prospective claimant The ACAS settlement agreement has to be

18 Repeal of Equality Act 2010 provisions From 1 October 2013: the ERRA 2013 removed third party harassment from the Equality Act 2010 (save for certain transitional provisions) Abolition of discrimination questionnaires due to come into force on 6 April 2013 (subject to commencement order)

for certain transitional provisions) Abolition of discrimination

19 Family Friendly Policies Children and Families Bill 2012/13 shared Parental Leave and Pay eligible employees will be entitled to a maximum of 52 weeks leave and 39 weeks statutory pay this can be shared between parents adopters will be able to take advantage adoption pay to be brought into line with SMP Government launched consultation on how the new system of shared parental leave and pay will work system to take effect in 2015

between parents adopters will be able to take advantage adoption pay to be brought into line with SMP

20 Family Friendly Policies Time off to attend appointments eligible employees will be allowed to take unpaid time off work to attend up to 2 ante-natal appointments adopters may also take time off to attend appointments to meet the child they intend to adopt in each case a maximum of 6 ½ hours per appointment employees entitled to bring a tribunal claim if employer refuses time off/payment no implementation date yet

appointments to meet the child they intend to adopt in each case a maximum of 6 ½ hours per appointment

21 Family Friendly Policies Right to request flexible working flexible working to be extended to all employees with 26 weeks service rather than just those employees who qualify as parents or carers employers no longer required to follow statutory procedures; all requests to be considers reasonably consultation launched February 2013 new system planned to take effect Spring 2014

22 Sickness Absence Review Government will introduce a health and work assessment and advisory service from Spring 2014 This will provide State funded assessment by occupational health professionals who are off sick for 4 weeks or more case management for employees with more complex needs to facilitate their return to work

23 Sickness Absence Review The Government will also abolish the SSP record-keeping obligations; and allow employers to keep records in a flexible manner There is no anticipated date of introduction

24 Reasonable adjustments A cheque? Croft Vets Ltd -v- Butcher. Is it a reasonable adjustment for an employer to pay for an employee suffering from work-related stress and depression to have private counselling

25 EHRC Statutory Code of Practice ualityact/employercode.pdf.even if an adjustment has a significant cost associated with it, it may still be cost-effective in overall terms for example, compared with the costs of recruiting and training a new member of staff and so may still be a reasonable adjustment to have to make. (para 6.25)

26 EHRC Code "ultimately the test of the 'reasonableness' of any step an employer may have to take is an objective one and will depend on the circumstances of the case" (paragraph 6.29).

27 When is a disability not a disability? Cox-v- Essex County Fire & Rescue Service Where an employee claimed a mental impairment but then prevented the employer from obtaining a definitive diagnosis, the absence of such diagnosis meant that the employer did not know and could not have reasonably been expected to know that the employee was disabled

28 A note of caution A mental impairment does not need to be clinically well recognised to be a disability. Heretical thought Was there enough evidence before the employer in Cox such that it ought reasonably to have known that the employee was disabled by reason of mental impairment?

29 Reasons to be cheerful? New ACAS guidance - Settlement Agreements: A Guide

30 Overview of the Guide Helpful examples - e.g. A settlement agreement being proposed by an employer who has concerns over an employee's performance. How a settlement agreement might be proposed by an employee who has a "personality clash" with a colleague How intimidating and aggressive negotiating by a manager might amount to improper behaviour so section 111A would not apply.

31 Not forgetting Useful check lists in Annexes 1 & 2 An optional template letter to initiate settlement discussions 86 fun packed pages of information and tips And finally

32 Appendix 6 An illustration of the admissibility of settlement agreement negotiations in unfair dismissal cases Or how s.111a works alongside the without prejudice principle (not to be missed!)

33 I busted a mirror and got seven years bad luck, but my lawyer thinks he can get me five. Steven Wright

34 THANK YOU FOR LISTENING! Tel: Mob:

Employment Law Changes 2013: Are you and your business ready?

Employment Law Changes 2013: Are you and your business ready? Over the past 18 months or so, the UK government has introduced a substantial amount of legislative reforms to UK employment law. These reforms