2013: A Year in Perspective
Meredith Hurst Thursday, January 16, 2014
2013 has been an interesting year for employment lawyers. The Coalition government has introduced a raft of new legislation which has been welcome to some and less to others.
Employment law tends to change with each success of government and not unlike fashion, trends that some people may have hoped would never reappear, come back. We now of course have a two year continuous service threshold for claiming unfair dismissal. The last time we saw this was in 1999.
January 2013 saw the vexed question of contractual rights on termination clarified by the Supreme Court in Geys v Societe Generale. This case concerned payments in lieu of notice and an employee's right to a significant bonus payment. If we can take anything from this case it is to ensure that contractual provisions must be explicit and clearly drafted.
In March 2013, the entitlement to unpaid parental leave increased from 13 to 18 weeks per child.
In April 2013, we saw changes to the collective consultation regime with the minimum consultation period being halved from 90 to 45 days. This applies to circumstances in which the employer is proposing to dismiss as redundant 100 or more employees at one establishment. We also saw an interesting development in the meaning of 'establishment'. The upshot is that disparate sites across the business or geographical locations, can amount to one establishment. This is a significant departure from previous law which meant that employers could avoid collective consultation obligations by making less than 20 redundancies at each distinct site.
We saw significant changes to whistleblowing legislation in June 2013. There is no longer a requirement for a disclosure to be in good faith. This opens the flood gates for employees to make disclosures about illegalities within the work place as a means of strengthening their own bargaining position when it comes to negotiating an exit.
July 2013 saw significant changes to the Employment Tribunal regime giving wider powers to Judges to make decisions at preliminary hearings and making it harder for Claimants to issue claims. We have also seen the introduction of Employment Tribunal fees. This in turn has led to a decline in the number of claims being issued.
In September we saw the introduction of the employee shareholder scheme. This is a means by which employees can accept shares in their employer's company in exchange for certain legal rights. It remains to be seen how this will operate in practice and how many employees will take their employers up on this.
October 2013 saw the abolition of employer's liability for third party harassment under the Equality Act 2010. This held that employers could be liable for the actions of, for example, clients. The most famous case involved waitresses working in a bar where Bernard Manning was performing. They claimed discrimination on the basis of his racist gags. After a long line of jurisprudence, the government has (perhaps surprisingly) decided that there is a lack of evidence that there is any significant need for protection from third party harassment.
A glimpse of 2014
2014 brings with it new challenges including amendments to the Transfer of Undertakings Regulations ("TUPE") which protect employees in the event of business transfers. The provisions are to be simplified and to allow for pre-transfer consultation in the event that redundancies are envisaged.
Employers are to face financial penalties for breach of the national minimum wage of up to £20,000.00. This is perhaps a much needed penalty given that there are still sectors of employment where workers are subject to abuse.
Finally, we see the abolition of discrimination questionnaires. These have proved a powerful weapon in the armoury of Claimants when collating information to support claims of discrimination. The abolition will take effect from 6 April 2014. It is not clear what the policy behind the decision is, but it will surely make it harder for Claimants to secure information voluntarily from their employers to support claims.
Should you have any views on any of the subjects covered in this article then we would be delighted to hear from you.