• 13 January 2014

Employment law changes 2014 - timeline of what to expect

Constant changes to employment law are a challenge for HR professionals and people managers. 2014 is no exception as we know there are lots of statutory and regulatory changes coming into effect to keep HR and people managers on their toes. As always there will undoubtedly also be case law developments that will add to the challenge of keeping up to date. 

January 2014 - Reform of TUPE 2006

Amendments to the Transfer of Undertakings (Protection of Employment) are expected to come into effect in January 2014. The changes are not as wide ranging as expected but they will still be welcomed by businesses. The amending regulations include:

  • Clarification that there will only be a ‘service provision change’ if the activities after are "fundamentally or essentially the same" as those carried on before.
  • Employee liability information will have to be given 28 days before the transfer. This increases from 14 days.
  • The ‘static approach’ to collective agreements will be adopted, meaning transferees will not be bound by changes to collective agreements after a transfer if they are not involved in its negotiation. Transferees will also be able to change terms derived from collective agreements one year after the transfer, as long as the overall change is no less favorable for the employee.
  • Changes in the location of the workforce following a transfer will be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (ETO reason). Genuine place of work redundancies will no longer be automatically unfair.
  • Regulation 4 (restriction on changes to terms) and regulation 7 (protection against dismissal) will more closely reflect the wording of the ARD and ECJ case law.
  • The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) will be amended to clarify that consultation which begins before the transfer can count for the purposes of complying with the collective redundancy rules, provided that the transferor and transferee can agree and the transferee has carried out meaningful consultation.
  • Micro-businesses will be allowed to inform and consult affected employees directly when there is no recognised independent union, nor any existing appropriate representatives.

Changes will not be made to regulation 4(9) which enables employees to claim that they have been dismissed where there is a substantial change in working conditions to their material detriment nor will transferors be able to rely on a transferee's ETO reason to dismiss an employee prior to a transfer.

On balance, the amending regulations will be welcome and some will undoubtedly want to delay any deal resulting in a ‘transfer’ until after the amending regulations are in force.  

April 2014 - Tribunal claims: penalties for losing respondents

This has long been in the offing and Tribunals will finally be given the power to impose financial penalties on losing employers of 50% of any financial award. The fine will be a minimum of £100 and a maximum of £5,000 and is reduced by 50% if paid within 21 days. Whether a penalty is awarded will be at the Employment Tribunal's discretion. It will not be automatic.

If a non-financial award is made, the Employment Tribunal can equate it with a monetary value and impose a penalty accordingly. 

April 2014 - Acas mandatory early conciliation

Prospective claimants will have to submit details of their claim to Acas before they can issue certain proceedings in the Employment Tribunal. If both parties agree to conciliate there will be a one month conciliation period, which will not count towards the limitation period. It ‘stops the clock’.

If a party refuses to conciliate or it is unsuccessful, Acas will issue a certificate and the claimant can proceed with a claim at the employment tribunal.

Conciliation will still be possible with the assistance of Acas after proceedings are issued.

Spring 2014 - Extension of the right to request flexible working to all employees

The right to request flexible working may be extended to all employees with 26 weeks' service.    

Sickness absence: a new health and work assessment advisory service.

The new service will offer occupational health expertise to employers, employees and GPs including a state funded independent assessment of employees who have been off sick for four weeks.    

There may be some other changes to annual leave entitlement under the Working Time Regulations 1996 and zero-hour contracts in particular.