Our thoughts on the world of employment law - and beyond.

What is on the horizon in employment law?

As the lurid pink plastic Christmas tree disappears from the office for another year; the special editions of University Challenge become unavailable on iplayer; and the cheese-munching marathons of recent weeks fade into distant memories, I thought it might be helpful in our first blog of 2014 to run briefly through the ten main changes that are looming on the employment law horizon.  That in turn got me thinking that there is an element of similarity in what has recently been and what is shortly to come.  So, bear with me while I crowbar in a dreadful simile…

1.      You get new things at Christmas: TUPE

Following its consultation last spring, last week, the government published the final version of the new TUPE regulations, which will replace the 2006 version from 31 January.   On an un-related note but keeping with the theme of novelty, it is thought that this year's update to rates and limits in the Tribunal will take place not in February but on 6 April.


2.      You sometimes get asked difficult questions: discrimination questionnaires

In a change which I imagine will be welcomed by many employers, discrimination questionnaires are being abolished with effect from 6 April 2014.


3.      A good deal of diplomacy can be required: ACAS pre-claim conciliation

Also with effect from 6 April 2014, Claimants will have to submit their claims to ACAS for a mandatory one-month period of conciliation before proceeding to the Tribunal.  If the conciliation is unsuccessful or either side refuses then the claim may continue (and the clock will have been stopped on the time limits during the conciliation period).


4.      Children will be around: flexible working requests

As the only person I know with a flexible working arrangement for the care of a horse, there is another change coming into force on 6 April 2014 that personally I welcome.  This is the widening out of the right to make flexible working requests to all employees with six months' service, rather than only those with responsibilities for caring for children and/or other dependants.  The statutory procedure for considering these requests is also being replaced with a duty to consider requests "reasonably" and within three months.  However, there is a new ACAS Code which essentially recommends that the current procedure is followed in any event.


5.      You may feel ill (due to overindulgence): sickness

This Spring, the government is introducing a health and work assessment advisory service which will provide: (i) state-funded occupational health assessments for employees who are off sick for four weeks or more; and (ii) case-management for employees with complex needs to facilitate returns to work. Also, from 6 April 2014, the record-keeping requirements for statutory sick pay ("SSP") will be abolished, meaning employers can keep records in a more flexible way.


6.      It will be expensive: financial penalties for losing employers and equal pay audits

From 6 April 2014, Employment Tribunals will have the power to impose a financial penalty on employers who lose at Tribunal of 50 per cent of a financial award (subject to lower and upper limits of £100 and £5,000) although there will be discounts for prompt payment.  Further, it is envisaged that, in 2014, Tribunals will be empowered to order pay audits where an employer is found guilty of gender discrimination in relation to pay.


7.      Some of the time will be a holiday (although it might not feel that way…): annual leave

This Spring, we expect a response from the government in relation to its Consultation on Modern Workplaces which deals with carry over and buy-out of annual leave.  This aimed at ironing out the discrepancies between European case law and the Working Time Regulations but, as ever, the proof of the (Christmas) pudding will be in the eating. 


8.      There might be the odd freebie: tax-free childcare  

Last March, the government announced a new tax-free childcare scheme in which, from autumn 2015, working families will be able to claim 20 per cent of childcare costs for children under 5 and then under 12 (up to a maximum of £1,200).  The new scheme will replace the existing employer-supported childcare ("ESC") regime but it is understood that employees already within the current ESC scheme may remain in it. 

At first blush, it appears that this proposed change might be a case in which the grass seems to be greener but isn't.  At present, employees in the ESC who pay tax at 40 per cent can save £1,225 per year in in tax and National Insurance ie slightly more than under the new scheme.  Perhaps the accountants out there can shed some light on the advantages of the proposal that I am missing?  Answers on a postcard…


9.      Someone will say something inappropriate: caste discrimination

A consultation exercise concerning making caste discrimination unlawful (which, as of 25 June 2013 the government has the power to do) is expected to get underway in February or March, with a draft order to follow in the autumn.

Interestingly, there is an argument to say that the provisions in the Equality Act 2010 already make caste discrimination unlawful as part of race discrimination because the definition of race says it "includes" (and therefore by dint of ordinary rules of interpretation is not limited to) "colour, nationality, ethnic or national origin".  However, there is an Employment Tribunal case from 2011 which holds that caste discrimination is not included.  Hopefully, the new order will clear up any confusion these conflicting indications cause. 


10.  Everyone will need to pitch in: shared parental leave

It is expected that, from 2015, the new shared parental leave and pay regime (allowing parents to share up to 52 weeks' leave with 39 weeks' pay on the birth or adoption of a child) will be introduced.  When it was announced last February, there was a collective intake of breath among HR professionals about the potential disruption the new system may cause - in part because of the lack of detail in the proposals.  My impression is that given the long lead-in time, the idea has now bedded in and minds are turning to how to make the regime work in practice.  The paucity of detail in the consultation document has to an extent been ameliorated in the response.  However, some of the clarifications will be more welcome than others; for example, it has now been specified that an employee may make up to three requests for leave which will make planning cover for absence challenging at best.

So, after that flimsy excuse for a gentle canter through the employment law developments on the horizon it is back down to earth with a bump: only the coffee-flavoured chocolates are left, dry Januaries are taking their toll on fraying tempers everywhere and even the horse is on a diet.  On which note, I have a query: is 5:2 the ideal ratio of biscuits to episodes of Sherlock? Hmmm.

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