WorkLife is nearly a year old, and a quick look back over our posts during the last twelve months shows what a busy year it has been for employment law (if not for employment tribunals).
In her first post on the blog, Emma-Christine O'Keefe did some star-gazing and reviewed the changes in the legal landscape that we expected for the year. Most of these changes either came into effect or have been developed over the year, with implementation expected at some point in 2015. In particular:
- The new TUPE regulations came into effect and discrimination law questionnaires were abolished. These changes were in general welcomed by employers – and in the latter case, by respondent employment lawyers.
- Early conciliation became mandatory from May 2014 and according to the most recent set of data published, since that date the number of employee notifications has remained fairly static - averaging between and 6 and 7,000 a month. Only approximately 10% of employers rejected the offer of conciliation when approached – which is encouraging to see. ACAS are firmly of the view that in most cases parties are willing to talk about the issues, which creates a better understanding of the dispute.
Interestingly, in terms of the outcomes for the first quarter (from April to June) 58% of applications did not then progress to a Tribunal. Whilst there is no data to support why these claims did not proceed, one has to surmise that the fee regime must have played a part in this.
The most recent statistics from the Ministry of Justice regarding Employment Tribunal claims confirm the continued steep fall in claims when compared with the same period the previous year – down approximately 60% between July and September. Unison's judicial review application, challenging the legality of employment tribunal fees, was dismissed by the High Court yesterday, albeit with leave to appeal.
- In terms of holiday, the Government has not published a response in its Consultation on Modern Workplaces – however, HR practitioners and lawyers alike have enough to grapple with following the EAT decisions on holiday pay in Fulton v Bear (Scotland) and Wood v Hertel and Amec (see also More Holiday Pay (as promised!)) and The Sash Window Workshop Lts & Anor v King. In addition, Lock v British Gas (dealing with the issue of including commission in the calculation of holiday pay) will be heard in the employment tribunal in February.
- Equal pay audits - A new sanction applies to employers found guilty of an equal pay breach. Unless one of the limited exceptions applies, an employment tribunal must order that employer to conduct an equal pay audit. Furthermore, the employer must publish the results on its external website for no less than three years and directly inform all employees whose pay data is included in the audit that they can obtain a copy. The new regime applies to all forms of gender pay claims that are submitted to a tribunal on or after 1 October 2014, including claims based on contractual and/or discretionary pay.
- A new state-funded Fit for Work service (previously Health and Work Service) was launched this month. Its aim is to provide health and work advice and support for employees, employers and GPs to help people with a health condition stay in or return to work. Fit for Work will have two main elements. First, it will offer general health and work advice via a telephone helpline and website, which are due to go live this month. Secondly, it will provide an occupational health assessment once an employee has reached, or is expected to reach, four weeks of sickness absence. This part of the service will be rolled out on a regional basis and is expected to be available nationally by May 2015. There is some scepticism about how this latter process will work, not least given the lack of input from employers into the assessment procedure. (see our previous posts Mental Health at Work – The Silent Sickness (Part 1) and Mental Health at Work (Part 2)).
Looking forward to 2015
- Following the Government's confirmation that it does not intend to pursue its legal challenge to the cap imposed by the EU on bankers' bonuses any bonuses paid from 1 January 2015 will be subject to the new regime. In short, this means that bonuses for certain workers must be limited to a maximum of one year's basic pay (or two years with explicit shareholder approval).
- In addition, from 1 January 2015, firms which are regulated by the Prudential Regulation Authority (PRA)
will need to ensure that any variable remuneration (ie pay by way of bonus) is subject to 'clawback' for a period of at least seven years from the date on which it is awarded (this applies to any remuneration awarded on or after 1 January 2015).
- The Lock v British Gas case is due to be heard in the Employment Tribunal.
- The Advocate General's opinion in the case of USDAW v Ethel Austin Ltd (more commonly known as the Woolworths litigation) is due to be published on 5 February 2015. This reference considers the meaning of "establishment" in the context of the trigger for collective consultation obligations.
- Clearly one of the biggest issues for 2015 will be the new Shared Parental Leave scheme available to parents of children due on or after 5 April 2015 (or placed for adoption on or after that date). (See our previous posts
Shared parental leave – good or bad?,The pitter patter of Shared Parental Leave…. Practical considerations for preparing for the new arrival and New ACAS guide on Shared Parental Leave).
- In addition to the new Shared Parental Leave rights, in April 2015 there will also be an extension of the right to unpaid parental leave. Currently an individual can take up to 18 weeks unpaid parental leave in relation to a child who is under 5. This right will be extended to parents of a child under 18.
- Other changes due to come into force relate to adoption leave including: the removal of the 26 week qualifying service requirement in order to be eligible for adoption leave; a new right to paid time off to attend adoption appointments; and the right to adoption leave shall be extended to individuals fostering a child under the "Fostering for Adoption" scheme.
- The General Election! Excitement is already building around what new and wonderful strands of employment law might emerge from a UKIP/SNP coalition. Depending in part on the outcome of the election, items which look set to remain on the agenda include the use of zero-hours contracts and legislation to outlaw caste discrimination.
So, all in all a busy year for WorkLife - and for us all. We're signing off now until the new year: in the meantime, a very happy Christmas and happy holidays (with pay to include bonus and overtime) to you all.