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Employment law – an annual review

2014 has been yet another busy year for employment law. Here we take a look back over the last year and look ahead to what we can expect to see in 2015.

2014: an overview

TUPE changes

The year began with amendments to the Transfer of Undertakings (Protection of Employment) Regulations  2006 (TUPE). The amendments introduced several changes, most notably:

  • The introduction of an exception for mirco-businesses (businesses with less than 10 employees) who do not need to stage a formal consultation and can instead inform and consult directly with employees
  • Employee liability information – The requirement for a transferor to provide employee liability information was retained. However, since May 2014 the transferor is now under a duty to provide the information within 28 days before the transfer, rather than 14 days under the old regime
  • A change in the location of the workforce following a transfer now amounts to an ETO reason, thereby preventing genuine place of work redundancies from being automatically unfair
Equality and discrimination

April 2014 saw the abolition of discrimination questionnaires which were replaced by informal guidance from ACAS. The ACAS guidance is to be used by employers when responding to questions posed by employees and a copy can be viewed online.

ACAS conciliation

Perhaps one of the biggest shake-ups of the year was the introduction of the new ACAS conciliation service which became a mandatory requirement from May 2014, introduced to help minimise the number of claims proceeding to tribunal.  Employees must now contact ACAS, to notify them of a potential claim and discuss early conciliation, before applying to the tribunal.

The statistics gathered following its implementation are promising. However it will be some time yet  before the full impact can be assessed.

Happy families...

Flexible working

The year started with a change in the flexible working scheme, which removed much of the eligibility criteria which existed under the old regime, meaning that any employee (with at least 26 weeks continuous service) can apply for flexible working. The new scheme abolished the statutory procedure and introduced a requirement for employers to consider all requests in a reasonable manner.

Accompaniment  to antenatal  appointments

On 1 October 2014, new rights were created for fathers or partners to take unpaid leave to attend up to two antenatal appointments.

SPL

Shared Parental Leave (SPL) came into effect on 1 December 2014 and applies to employees who are adopting, or expecting a child due on or after 5 April 2015. It aims to give families additional flexibility in arranging how they, as a family, wish to respond to their new arrival. In summary, both parents will share a pot of leave that can be taken at the same time or shared on an alternating basis. The new scheme will sit alongside current maternity and adoption rights. The scheme incorporates a complex notification procedure and employers are advised to implement a policy for SPL.

Pensions - auto enrolment

Amendments were made to the law on workplace pensions. Employers now have a duty to automatically enrol workers into a workplace pension scheme. Many companies will have faced the task of starting the auto-enrolment process already this year. However, some employers may not yet have reached their staging date. The staging dates have been set by the Pensions Regulator and depend on the size of the business. If a company fails to comply with the auto-enrolment regime, the Pensions Regulator may intervene and require certain steps to be taken or levy financial penalties.

Equal pay audits

For all claims brought since 1 October 2014, the tribunal now has the power to order an equal pay audit on any employer who is found by an employment tribunal to have discriminated against an individual on grounds of gender relating to contractual or non-contractual pay matters.

Key cases from 2014

Holiday pay

On 4 November 2014, the Employment Appeal Tribunal (EAT) finally handed down its decision in the cases of Fulton and another v Bear Scotland Ltd joined with Wood and others v Hertel (UK) Ltd and another. The EAT held that non-guaranteed overtime should form part of an employee’s holiday pay calculation. Following the judgment the EAT gave permission for appeal to the Court of Appeal. However, on 26 November 2014, Unite announced that they will not be appealing the EAT’s decision, meaning that the risk of employees claiming for backdated holiday pay is greatly reduced. The Government has now announced that it will impose a cap of two years on claims for back-pay. The press release indicated that the change will take effect for claims lodged on or after 1 July 2015.

Commission

We are still awaiting a decision from the Employment Tribunal in the case of Lock v British Gas concerning the payment of commission whilst an employee is on holiday. The European Courts have already decided that where commission and the job are ‘intrinsically linked’ then holiday pay must include commission. The case has been referred back to the Employment Tribunal to decide whether a change in law is required and will also deal with what the correct reference period should be to calculate commission payable. It is our understanding that the case will be considered in March 2015.

Zero hours contracts

Back in November 2014, Sports Direct were ordered to update its zero hour contracts for 20,000 staff following a claim brought by a former member of staff. The case highlighted that many employers impose ‘exclusivity clauses’ meaning workers cannot take up paid work elsewhere, despite having no guarantee of work under a zero hours contract. Whilst zero hour contracts provide flexibility and can have advantages for both parties, it is important to ensure that such contracts are legally acceptable and drawn up clearly so that both parties understand their rights and obligations.

2015: looking ahead

Adoption leave and pay

From April 2015, the Paternity and Adoption Leave (Amendment) Regulations 2014 will amend the Paternity and Adoption Leave Regulations 2002. Once in force employees will no longer be required to have a qualifying length of service to take adoption leave and will have the right to time off to attend adoption appointments. There are also proposals to bring adoption pay into line with maternity pay.

Extension of parental leave

The right to take unpaid parental leave will be extended to all parents of children up to the age of 18 years. Currently it is only available where the child is under the age of 5 or 18 if they are disabled.  This is due to come into force on 5 April 2015. This form of parental leave should not be confused with shared parental leave which is referred to above.

Sickness absence

The Government was due to introduce a Health and Work Assessment and Advisory Service in Spring 2014. However, implementation of the service was subsequently delayed. The service is designed to provide an occupational health assessment and general health and work advice to employers, employees and GPs to help people to stay in or return to work. The Health & Work Service is to be fully up and running by the end of May 2015.

Caste discrimination

Caste discrimination is to be made unlawful at some point in the second half of 2015.