HM Insights

Out with the old and in with the new?

Well that’s what they say when welcoming a new year isn’t it?  Not in employment law.  There’s been a number of important changes in 2013 that will influence personnel relations well in to 2014, whereupon further changes in law and practice will arise.

In this summary, we’ll be recapping on some of the important developments that have arisen and that are to arise.

2013

In January:-

  • The EAT decided it was wrong to split an award for discrimination amongst the respondents (the employer and a manager) and instead the entire award should be recoverable from either of the respondents.

In March:-

  • The EAT decided that an obese employee was disabled for the purposes of the Equality Act 2010 by reason of the multitude of health issues that arose as a result of his obesity.
  • Less fortunate in their attempts to obtain legal protection were the claimants who failed to persuade the Court of Appeal that their dismissals were unfair when they were re-tried by their employer – they were disciplined for a second time and dismissed, when they had earlier received warnings, for the same issue and circumstances, following public outcry at the employees retaining their employment.
  • The EAT also considered that using assessment-centre type analysis for the selection of redundant employees, was unreasonable and unfair.

In May:-

  • The Employment Appeal Tribunal decided that post-termination victimisation was part of the Equality Act and able to protect people, extending the reach of the legislation.
  • The EAT decided that non-transferring staff, in a TUPE situation, who were dismissed in connection with the transfer, were not entitled to be informed and consulted about the transfer itself.

In June:-

  • The Court of Session diluted the effect of TUPE and service provision changes, by deciding that there was no organised grouping of employees where employees worked exclusively for 1 client.
  • An employment tribunal concluded that a retirement age of 65 years old was justifiable and lawful in a particular workplace.
  • The whistleblowing legislation changed, requiring there to be a clear public interest in the disclosure for whistleblowing protection to apply, with other changes including extending the legislation to mean that it can apply beyond workers.
  • The qualifying service of 2 years was removed from complaining of unfair dismissal when the main reason is said to be the employee’s political opinion or affiliation.

In July:-

  • In a contentious move by the government, claimants had to start to pay fees in order to raise employment tribunal claims.
  • In a further contentious move, the government capped compensation for unfair dismissal at the lower of the present statutory cap (£74,200) or 12 months pay.
  • To encourage parties to stay away from tribunals altogether the government also introduced the concept of pre-termination settlement negotiations (amending legislation to mean certain discussions were not capable of being referred to in the tribunal) and settlement agreements.

In August:-

  • The Court of Appeal decided that it was not inevitably reasonable to dismiss for gross misconduct, reminding employers that they have to be careful and consider all options before deciding to dismiss.

In September:-

  • Employee shareholder status commenced, allowing employees to trade certain employment rights for shares and tax breaks.
  • An internal appeal was found to have successfully remedied earlier prima facie indirect discrimination (that arose as a result of a flexible working application).
  • In a separate case, a grievance appeal that was not impartial, was found to be grounds for an employee to resign and successfully claim constructive dismissal.

In October:-

  • The EAT issued a welcomed decision for employers when it concluded that an employer did not know and could not have been expected to know that an employee was disabled when the employee hampered investigations in to his medical condition.   A claim under the Equality Act could not proceed.
  • Not so welcome was a separate decision that it was a reasonable adjustment to pay for private counselling for an employee with depression.

In November:-

  • Judicial review proceedings against the government’s introduction of tribunal fees concluded.  Judgment has been reserved and will be announced in 2014.

In December:-

  • The consultation on zero-hours contracts began, inviting comment on their use, their legitimacy and whether they should be the subject of legislation to avoid misuse.
  • A Labour party member’s belief in “democratic socialism” was found by an employment tribunal to be a philosophical belief for the purposes of the Equality Act 2010 – and therefore capable of protection.  Fitting that as we head in to the year of the independence referendum, politics should receive an elevated billing within the provisions of the Equality Act.

2014

In January:-

  • With there being no suggestion that the legislative changes to whistleblowing from 2013 influenced a reported increase in whistleblowing cases in 2013, employers will need to schedule retraining on handling whistleblowing complaints.
  • The consultation on revising the ACAS Code on Discipline and Grievance will close on 7th January.   A revised and updated code is anticipated in the summer of 2014.
  • On 31st January the amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 will take effect, bringing a number of important changes to business transfer and service provision change practice.

As of 6th April:-

  • Mandatory conciliation will commence, meaning claimants have to first go to ACAS with claims before heading to the tribunal.
  • Tribunals will have the power to punish employers by imposing financial penalties on employers (in addition to awards of compensation, etc).
  • The Equality Act will be amended to revoke the provisions relating to statutory questionnaires.
  • The right to request flexible working will extend to all employees

In the Autumn:-

  • Caste discrimination is expected to be made unlawful.
  • A new tax-free system of childcare is to be introduced.

At some stage we expect to see:-

  • Tribunals being given the power to impose equal pay audits against employers found to have contravened equal pay rights.

Best wishes to all clients and contacts for 2014.

We hope you will continue to use our blog, seminars and retainer scheme to keep ahead of developments and in the know.   

For further information on any of the issues outlined above or to discuss our services further, please do not hesitate to contact us.