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Employment

Employers be ready!

Now that the Government has provided a more detailed route-map for the next 12 months, the following is a summary of and timetable for some of the main changes that are due to take place, which you need to be aware of:

31 January 2014 (unless stated otherwise): TUPE Regulations

After extensive consultation, the main changes to be made to TUPE will now be as follows:

For employees to transfer under TUPE’s "service provision change" rules, activities carried on post-transfer must be "fundamentally the same" as those activities carried on before transfer.

The requirement to provide "employee liability information" will have to be given at least 28 days before a transfer (with effect from 1 May). This replaces the current requirement of 14 days.

A change in workplace location following a TUPE transfer may now be considered an "economical, technical or organisational" reason and will not lead to an automatic unfair dismissal finding.

Employers may vary terms under a collective agreement one year after a TUPE transfer, provided that the variations are no less favourable to the affected employees. There are some important caveats to this, so please proceed with caution.

Subject to complying with certain rules, it will be possible for transferees (i.e. those receiving staff via TUPE) to start collective redundancy consultation with transferring employees prior to a transfer.

An exemption from the need to elect employee representatives for "information and consultation" purposes will be introduced for employers with fewer than 10 employees (with effect from 31 July). Instead, small employers will be able to inform and consult directly with their staff.

6 April 2014: Early conciliation

The Enterprise Regulatory Reform Act 2013 will introduce a new mandatory ACAS pre-claim conciliation procedure. As a result, before submitting a claim to an Employment Tribunal, Claimants will have to lodge details of their claim with ACAS, who will attempt to facilitate a resolution of the dispute for a period of one month. If, after the month, no resolution has been achieved, the matter can proceed to Tribunal. Whilst such conciliation is on-going, the time-limit clock for bringing a Tribunal claim will be stopped. However, the pessimists (or rather realists) among us believe that this may generate additional disputes about whether time limits have been complied with where a settlement is not reached and the "clock" is restarted.

6 April 2014: Financial penalties for aggravating employers

Employment Tribunals will have discretionary powers to impose additional financial penalties on employers where their breach of an employee’s rights include "aggravating features" such as negligence or malice. Penalties will be between £100 and £5,000 but may be reduced by 50% if an employer pays within 21 days.

6 April 2014: Discrimination Questionnaires, gone

Have you ever sent or received an Equality Questionnaire? No, not many people have, which is perhaps why the Enterprise and Regulatory Reform Act 2013 effectively scraps the Equality Questionnaire process (which can be costly and time consuming to comply with). However, potential Claimants willstill be able to raise questions with their current/ex-employer after April (but there will no longer be a clear statutory framework for doing so).

6 April 2014: Flexible working for all (well, for most)

The right to request flexible working is being extended to all employees (not just parents or carers) who have 26 weeks continuous service. The current statutory procedure for considering requests will also be replaced with two basic requirements, namely that employers deal with flexible working requests in a reasonable manner and notify employees of their final decisions. Requests may still be refused on business grounds.

The Government is also considering the possibility of shared parental leave, but this will be implemented (in some form) at a later date.

This is currently under review and maybe subject to change. Watch this space!

Spring 2014 - Need a health kick?

A health and work assessment and advisory service will be available for employees who have been off sick for at least four weeks, to encourage an early return to work. This will be state funded and assessments carried out by occupational health professionals.

Equal pay audits: October 2014

Employment Tribunals will have the powers to order employers to carry out an equal pay audit, where they may have breached equal pay legislation. More on this, closer to the time.

Zero hour contracts: The next 12 months

Zero hour contracts, another media favourite, will likely come under the spotlight again in 2014 following the results of a Government consultation. Changes are likely to be made in respect of "exclusivity clauses" which restrict staff from working for another employer unless in direct competition, and pay equity, which should see zero hours staff paid at a comparable rate to those doing similar work. Recent CIPD research has dispelled many of the zero hours’ myths that have made the headlines in recent months and we believe that changes outside those mentioned above will be limited. Whatever the future holds, BPE can provide guidance on the safest or most commercial ways of implementing zero hours’ arrangements.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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