Contact: Caroline Flaig; Clarkslegal LLP (Reading, England)
2013 has seen significant changes for the Employment Tribunal system and there have been important changes in employment law which we have blogged about and written articles about throughout 2013 on buddy. But what does 2014 hold? Below are some of the major changes which will happen in 2014, the dates for some of the changes have been confirmed and others are awaited.
January
TUPE reforms – 31 January 2014
The New Year kicks off with changes to the law on TUPE. There are a number of changes including;
- Service provision changes – For TUPE to apply activities carried on must be ‘fundamentally or essentially the same’ as carried on before.
- ELI - Employer liability information now has to be provided 28 days rather than 14 days before the transfer date.
- Collectively agreed terms - Transferees (the new incoming employer) can renegotiate terms derived from collective agreements one year after the transfer, provided the changes are no less favourable to the employee.
- Direct consultation with employees for micro-businesses – Employers with less than 10 employees will be allowed to inform and consult with their employees directly where there is no recognised independent union or existing appropriate representatives.
- Post transfer redundancies – Consultation by the transferee pre transfer can count towards the statutory redundancy consultation period post transfer in some circumstances.
- ETO reason – The definition of an ETO reason (economic technical organisational reason) will be amended to include a change in location of the workforce. This change is to address the anomaly where a redundancy dismissal can be fair for a change of location but a dismissal under TUPE would be unfair.
- Collective agreements – A transferee will not be bound by any terms negotiated as part of a collective bargaining process after the relevant transfer where the transferee is neither a party to those subsequent collective agreements nor to the bargaining process for them.
February
Pensions – auto enrolment You may be aware that with introduction of pensions auto enrolment employers have been grouped according to their size and have different staging dates to start the enrolment process. The staging period for employers with more than 250 employees started on 1 October 2012 and will end on 1 February 2014. For employers with between 50 and 249 employees the staging dates starts on 1 April 2014 and ends on1 April 2015.
April
Mandatory ACAS pre claim conciliation will be introduced from 6 April 2014. Claimants will be required to lodge details of their proposed Employment Tribunal claim with ACAS. ACAS will then offer the parties pre claim early conciliation with an ACAS conciliation officer for one month. If either party refuses the conciliation, the conciliation fails or the conciliation period expires, ACAS will issue the Claimant with a certificate to that effect which will allow the Claimant to present their claim at Tribunal. The majority of employment rights are covered the early conciliation process. Pre claim conciliation will not apply if the Claimant is seeking reinstatement or reengagement. ACAS will continue to be available to conciliate between the parties if a Tribunal claim is issued.
Abolition of discrimination questionnaires – You may have had to deal with discrimination questionnaires either in the lead up to a Tribunal claim or as part of a Tribunal claim, from 6 April 2014 the questionnaire procedure will cease to exist as the section of the Equality Act which provides for these is repealed.
Financial penalties against employers who lose in Tribunal will take effect in the Employment Tribunal from April 2014. The Employment Tribunal will have the power to impose a financial penalty if the employer has breached employment rights where one or more aggravating features exist. An aggravating feature is not defined in the amendment but in the explanatory notes at the Bill stage of the propose change said factors such as the circumstances of the case, the size of the employer, the duration of the breach of the employment right, and the employee and employer`s behaviour were said to be relevant considerations. Tribunals will have the power to impose a financial penalty on employers who lose at tribunal of 50% 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 half if paid within 21 days. The penalty will not be automatic it will be at the Tribunal’s discretion.
Extended flexible working requests rights will come into force on 6 April 2014. All employees with 26 weeks continuous service will have the right to request flexible working under The Children and Families Bill, the right to request flexible working will no longer be limited to employees with children or caring responsibilities. Employers will have an obligation to consider requests in a reasonable manner and the previous statutory process for handling requests will no longer apply.
Statutory payments will increase on 6 April 2014 as they do annually in respect of maternity pay, paternity pay and sick pay. The new rates will be confirmed in due course.
Anticipated changes
Equal pay audits – Following consultation in 2013 regulations are expected later in 2014 to give Employment Tribunals the power to order an employer to undertake an equal pay audit. Under the Enterprise and Regulatory Reform Act 2013, a Tribunal will be able to require a Respondent employer who loses an equal pay claim to carry out an equal pay audit. Initially, for a period yet to be confirmed, employers will less than 10 employees will be exempt from the regulations.
Sickness absence management – Around Spring 2014 the Government is expected to provide a state funded health and work assessment and advisory service for employers. Where employees have been signed of sick for four or more weeks employers will be able to access a state funded assessment by an occupational professional. The service will also provide advice for employees who have complex needs to facilitate their return to the workplace.
Caste discrimination may be made unlawful in 2014. The Government has the right under the Equality Act to make discrimination on the basis of a person’s caste unlawful. The Government is expected to publish an order bringing into force caste discrimination as unlawful discrimination. Consultation is expected in February and March 2014 and an order is anticipated in autumn 2014. Caste will be an aspect of race discrimination.
We will keep you updated through our blogs and articles of changes as and when they happen. If you don’t receive our free weekly update emails sign up for these to stay up to date.
