employment law update: september/october 2013

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Employment Law Update 2013Justine Watkinson and Rachel ReidHillyer McKeown Solicitors


Our Employment Law Speakers

Rachel is a Solicitor in our experienced Employment Law Team. She has extensive experience in advising and acting for a diverse range of companies on Tribunal claims, general HR issues such as disciplinaries, grievances, discrimination as well as redundancy (collective and individual), TUPE issues and industrial relations.

Justine is Head of the Employment Law Team. She has extensive expertise in all areas of employment law, including executive appointments and terminations, drafting of contracts of employment and handbooks, all aspects of business change projects, long term sickness, performance and capability, and discrimination issues.


Enterprise and Regulatory Reform Act 2013

• Came into force 25 June 2013• Introduced various changes to the law • Improve the employment tribunal system• Reduce number of claims being issued in the

Tribunal


Enterprise and Regulatory Reform Act 2013

• Whistleblowing changes• Unfair dismissal cap• Settlement Agreements• Employment Tribunal Fees• Early conciliation• Employee shareholders• TUPE


Whistleblowing

• Applies to disclosures made from 25 June 2013• Worker must have a “reasonable belief “ the

disclosure is in the public interest• Removal of requirement for ‘good faith’ • Vicarious liability of employer


Unfair Dismissal Cap

29 July 2013

• Limit to compensation• £74,200 or 52 weeks’ gross pay (benefits such as pension,

benefits in kind and discretionary bonus excluded)• Future revisions rounded up to nearest £1• Revisions to be made on 6 April rather than 1 February• Statistics published by BIS in 2010 – only 5% of all Unfair

dismissal Claimants recovered in excess of 12 months loss


Settlement Agreements

• ACAS Code of Practice• Offer made before a dispute• Verbally and in writing• Confidentiality of discussion only for unfair

dismissal claims• Employees accompanied at meetings


Settlement Agreements

• “Improper behaviour” prevents confidentiality:• Not allowing 10 days for employee’s response• Stating the employee will be dismissed if not

accept offer• Employee threatening employer’s reputation

unless the agreement is signed


Employment Tribunal Fees

29 July 2013

• When are fees payable? • To issue a claim• To secure a hearing• When making an application• Where parties agree to Judicial Mediation


Employment Tribunal Fees

29 July 2013

• Type A - Deduction of wages/redundancy/breach of contract/ - £160 issue/£230 hearing• Type B – Unfair dismissal/discrimination/whistleblowing -

£250 issue/£950 hearing• £600 from Respondent where parties agree to judicial

mediation


Early Conciliation

Expected April 2014

• Before issue a claim contact ACAS• One month window to settle• Save costs for business and individuals• No settlement reached – 3 month window opens


Employee Shareholders

Growth and Infrastructure Act

• Came into existence on 1st September 2013• Employee can agree to accept a minimum of £2,000 worth of shares

in the Company (Capital gains exempt up to £50,000)• Give up certain employment rights• Employee must get written terms• Employee must take legal advice• Employer must pay for that advice


Employee Shareholders

Growth and Infrastructure Act

What does an employee give up?• Request for time off to study• To request flexible working (save for when following a period

of parental leave if made within 14 days of return)• Unfair Dismissal (excluded automatically Unfair Dismissal)• Right to a redundancy payment


Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE)

TUPE applies to a “relevant transfer”, which covers two events:

1. A transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains it’s identity (Regulation 3(1)(a))

2. A client engaging a contractor to do work on it’s behalf re-assigning such a contract or bringing the work “in house”, providing certain conditions are met (Service Provision Change) (Regulation 3(1)(b))



• Where TUPE applies the employment contracts of those employees assigned to the organised grouping of resources pass from the transferer to the transferee (Regulation 4(1))

• The Government announced 6th September 2013 to scale back proposals

• Employment Relations Minister, Jo Swinson ‘comments’:Timescales – changes laid before Parliament December 2013, planned changes January 2014Positively received by Employers



Proposed changes - Key points:

• The Service Provision Change provisions will remain although the activities carried out after the transfer must be “fundamentally or essentially” the same as those carried out before

• Dismissals due to a workforce relocation as a result of a TUPE transfer will no longer be automatically unfair. They will fall into the exemption of an economical, technical or organisational reason (ETO) changes to the workforce



Proposed changes - Key points:

• Pre-transfer consultation by the transferee on proposed collective redundancies post-transfer will be valid and meaningful

• Business with fewer than 10 employees will be entitled to inform and consult with their employees directly and not through representatives

• The timescale for providing employee liability information has been increased from 14 days to 28 days prior to transfer


Thank youAny questions?

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