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Employment Bulletin - January 2014

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A Happy New Year to you all.

Forthcoming Changes to Employment Law

As we enter 2014, it seems there is little let up in to the scale and pace of change in employment law. Below is a brief chronological heads up on some of the key changes.

Early 2014

TUPE: the bulk of the revised TUPE regulations will come into force on 31st January 2014. Significant changes include:

  • The requirement for the transferor to provide “Employee Liability Information” earlier – 28 days pre-transfer.
  • TUPE consultation can go towards collective redundancy consultation in some circumstances.
  • Change of location can be within the definition of an “ETO” reason so genuine workplace redundancies will no longer be automatically unfair.

For further information on the changes to TUPE please see our TUPE briefing note.

Revised Acas Code of Practice: ACAS is currently consulting on revisions to the wording of specific paragraphs of its Code of Practice on Disciplinary and Grievance Procedures that deal with the right to be accompanied. This comes after the EAT ruled in Toal and another v GB Oils Ltd UKEAT/0569/12, in which it was held that the right to choose a companion was an absolute right, subject only to the limitations imposed by section 10(3) of the Employment Relations Act 1999, that the companion be an appropriate union representative or one of the employer's other workers.

In its consultation paper, Acas acknowledges that their Code of Practice does not accurately reflect the legal position following Toal, as it does not make it clear that employees may choose whoever they like to be their companion, provided they come from one of the defined categories of companion. The proposed replacements for paragraphs 15 and 36, which are set out in full in the consultation paper, simply make this choice explicit

April 2014

Early Conciliation: ACAS will contact employers ahead of any potential tribunal claim, provided the employee agrees, to see is there is scope for resolving the dispute. There will be changes to limitation periods as a result of early conciliation.

Parental Payments: annual upratings for statutory maternity, paternity and adoption pay will come into effect.

Financial Penalties: Tribunals will be able to impose financial penalties on employers who lose at tribunal where there is one or more “aggravating feature” of the employer’s behaviour. The penalty will be in addition to compensation and is capped at £5,000.

Flexible working: the right to request flexible working will be extended to all employees with 26 weeks service, not just those with caring responsibilities. The process by which flexible working requests are made will be replaced by a duty to consider all requests in a “reasonable” manner.

Introduction of Fees – the Stats

The Ministry of Justice (MoJ) has published tribunal statistics for the quarter July to September 2013. These statistics include statistics about employment tribunal claims and have particular significance as they are the first set of official statistics since the introduction of employment tribunal fees on 29th July 2013.

The report states that the number of “receipts” (an amalgamation of single and multiple claims, counting each individual within the multiple separately) in July to September 2013 was just under 40,000 which is 17% down on the same period in 2012. Unfair dismissal and failure to inform and consult on redundancy claims have fallen by around 40%. The largest increases were in equal pay and sex discrimination claims.

Disability and Occupational Health

In the case of Gallop v. Newport City Council [2013], the Court of Appeal has held that an employer was wrong to have unthinkingly followed an occupational health adviser’s opinion that an employee was not disabled. The adviser had stated, without explanation, that the employee who had been signed off work with depression was not “covered” by disability discrimination legislation.

The employer argued that, because of this statement, it could not have actual or constructive knowledge that the employee was in fact disabled. The employer therefore believed that this was sufficient to avoid the obligation to make reasonable adjustments.

The Employment Tribunal and the EAT had agreed with the Employer. The Court of Appeal however, said that the employer should have gone further. While occupational health assessments or other medical advice may be helpful, a responsible employer must ultimately apply its own mind to the test for deciding whether an employee is disabled under the discrimination legislation. The court advised that when asking questions that might inform a view that an employee is or is not disabled, employers should tailor those questions to the particular circumstances of the case.

This case demonstrates that an employer cannot “outsource” its judgement on the legal test of disability to an occupational health adviser or doctor. This does not mean that an employer should not seek medical advice where appropriate but, where external advise is sought with respect to ill health, the employer should take care to ask appropriate questions of the doctor/occupational health adviser and consider the answers provided in the context of its wider knowledge about the employee.

For any matters arising from this bulletin, please contact Patrick Stewart

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