Transcript Slide 1

Employment
Law
Update : where
are we?
Stuart Chamberlain
Programme
 GOVERNMENT
REFORMS TO EMPLOYMENT
LAW 2012-2015: IMPLICATIONS FOR LOCAL
AUTHORITIES
 Review
of 2013
 What’s
happening in 2014?
 And
2015?
 SELECTED
and RELEVANT CASE LAW 2013
Coalition Government’s employment law policy – a
reminder

Employment Law Review throughout the life of government

Remove regulatory burdens – The Red Tape Challenge – A “light
touch”

Employment Law is “costly, time-consuming and overly
bureaucratic”

Remove barriers to “flexible, effective and fair” labour market

Aim to support employers, individuals and their families

Better information & guidance (e.g. the Employer’s Charter)

Whole series of Consultations and “Calls for Evidence”

Encourage parties to settle rather than go to ET - & save money!
The relevant legislation
 Enterprise
 Growth
and Regulatory Reform Act 2013
& Infrastructure Act 2013
 Collective
Redundancies and Transfer of Undertakings
(Protection of Employment) (Amendment) Regulations
2014
 Children
and Families Bill – some delay
4
1. CHANGES TO UNFAIR DISMISSAL
REGIME – including REDUNDANCY
Changes to unfair dismissal- a brief reminder

Change in qualifying period increased from one to two years

Cap on compensation for unfair dismissal: employee’s wages for
12 months or current cap of £74,200 – whichever is the lower.

New unfair dismissal claim – where the reason for dismissal is
the employee’s political opinion or affiliation

Introduction of Settlement Agreements

Introduction of Fees at ETs

And 2014 : referral of all claims to ACAS
Implications for LA employers
 Obviously
now more difficult for employees to bring
claim of unfair dismissal. Claims by other routes?
 Will
trade unions be able to fund multiple claims?
 “Whistleblowing”
 Response
regime: new liabilities for employer
to new claims for dismissals on grounds of
political opinion or affiliation (the Redfearn case)?
Redundancy
 Employees
on fixed-term contracts excluded from
collective consultation obligations (but agency
workers?)
 Minimum
consultation period reduced from 90 days to
45 days (where 100+ employees are affected within
90 days’ period)

BUT upper limit on protective award remains 90 days
 ACAS
non-statutory code of practice “How to manage
collective redundancies” – checklist of key points
 “Woolies”
case referred to CJEU (legality of “one
establishment” in legislation)
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2. DISCRIMINATION
DISCRIMINATION: A CLIMATE CHANGE?
 Significant
 Removal
changes to EHRC
of third party harassment: now what?
 Review
of Public Sector Equality Duty and specific
equality duties – not fit for purpose?
Recommendations?
 Discrimination
questionnaire procedure to be
repealed (6 April 2014)
3.REFORM of TUPE & IMPLICATIONS FOR
LA EMPLOYERS
Reform of TUPE: background
 Aim
of reforms was to avoid “gold plating” i.e. to go
no further than minimum requirements of the ARD ,
unless there was a clear economic rationale for doing
so
 “Call
for Evidence" and Consultation – the BIS
response
 Major
reform or merely “tidying up”?
(i) Service Provision Changes (SPC)
 SPCs,
despite being the most obvious example of
“gold plating” of UK law, are retained
 New
test: activities must be “fundamentally the
same” before and after the transfer – already
acknowledged in case law
 Provides
 Any
certainty – good news for contractors?
need for change in procedures?
(ii) Collective Agreements
 Transferee
not bound by any collective agreement
agreed after the date of the transfer, if not party to
bargaining - embraces the “static “ approach &
merely enacts CJEU’s decision in Parkwood Leisure
Ltd v Alemo-Herron
 Terms
derived from collective agreement can be
negotiated after one year, provided that overall
effect is “no less favourable” to employees”
Reform of Collective agreements & TUPE: Implications

A relief for contractors!

Discontented workforce?

Future problems?
— What does “no less favourable” mean?
— Any variation must have agreement of employees?
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(iii) TUPE & Dismisssal
 Change
in definition of automatically unfair dismissal:
“connected with the transfer” too wide: now no
protection where the reason for the dismissal is the
transfer, unless there is an ETO reason entailing
changes in the workforce
 “ETO”
reasons to include change in place of work
(“location”)
 No
amendment of Regs. 4(90 and 4 (10) (material
detriment; changes to working conditions
 Transferor
dismissal.
may not rely on transferee's ETO for
(iv) Variations to terms & conditions
 The
general rule of contract change – need for
agreement – does not apply in TUPE regime
 Any
variation void where sole or principal reason for
the change is the transfer
 “connection
legislation
with the transfer” removed from
(iv) Variations to terms & conditions cont.

Changes not by reason of the transfer are possible – where
positive for employee

Changes to collective agreement are possible ( see above)

BUT “Harmonisation” remains unlawful ( contrary to EU law see Daddy’s Dance Hall) – UK to consult with EU partners – what
can the transferee do?
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(v) Information and Consultation

Extension of time for provision of employee liability information
(ELI) from 14 to 28 days

Pre-transfer consultation between transferee & transferor’s
workforce may count towards collective redundancy
consultation ( under s.188 TULCRA 1992)
— Transferor has to agree
— Transferee has to give written notice to transferor
— – potential problems?
4. LEGISLATION ETC 2014 - 2015
Legislation 2014
 Right
of flexible working extended to all employees
with 26 weeks’ service – but delayed
 ACAS
Early conciliation (6 April 2014)
—Four-step process (?)
—Will it work?
 New
Health & Work Service for employees absent for
4 weeks due to sickness (spring 2014) & revision of
“Fit-Note”
 Financial
penalties in ET for employers (£5000?)April 2014
Consultations 2014
 Consultation
 Zero
on ACAS Disciplinary & Grievance Code
Hours Contracts – to improve transparency
 Caste
discrimination – but see ET case
 And
remember need for changes in Working Time
Regs – carry over of annual leave
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Legislation 2015
 Flexible/
Shared Parental Leave – parents will have
the ability to “split” 52 weeks of parental leave at any
point from 2 weeks after birth
 Time
off for Ante-natal appointments - fathers and
other qualified persons will be entitled to time off
work to attend 2 ante-natal appointments with
expectant mothers.
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CASE LAW: a selection
Case law - 1
 USDAW v Ethel Austin Ltd (in administration) – the
“Woolworths’ case” Collective consultation obligation is
triggered by 20 in business/organisation – regardless of the
number at individual sites-referred to CJEU.
 Wright v North Ayrshire Council: for constructive
dismissal claim the employer’s breach must be part of the cause
of resignation, not the effective cause.
 Toal v GB Oils: EAT ruled that the right to choose companion
was the employee’s choice and the employee’s alone -Acas
advice misleading.
Case law – 2
 Wade v Sheffield Hallam University (EAT): waiver of
competitive interview not a reasonable adjustment – Archibald
will not always apply
 Sohbi
v Commissioner of Police of the Metropolis
(EAT): new second limb of test of disability: whether the
impairment impacts on someone’s participation in professional
life
 City and Council of Swansea v Gayle (EAT): Fraudster
not unfairly dismissed & no breach of Article 8 (right to privacy)
or of Employment Practices Code ( DPA).
 Working
Time cases
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