Legal updates

The ever changing legal landscape in the field of employment and human resources has had another bumper year in 2014.

We have seen some important legislative changes to existing legislation such as TUPE and also the introduction of entirely new legal concepts such as Shared Parental Leave. We have also seen some important Case Law developments, probably most notably coming out of European Court of Justice rulings in relation to holiday pay.

Here is a brief reminder of the legislative changes which took place in 2014, in order of impact date:

  • 31 January 2014 – Reforms to TUPE including allowing pre-transfer redundancy consultation to count towards the minimum consultation periods for collective consultation purposes, allowing employers greater scope than before to dismiss or change terms and conditions following a TUPE transfer, implementing changes which mean that genuine place of work redundancies following a TUPE transfer are no longer automatically unfair, changes to the impact of pre-transfer collective agreements and tightening up the definition of a service provision change to reflect previous case law developments.
  • 5 February 2014 – Hazel and another v The Manchester College (Court of Appeal): A dismissal of a TUPE transferred employee on the grounds of their refusal to accept new harmonised terms and conditions was automatically unfair.
  • 26 February 2014 – Jessemey v Rowstock Limited and another (Court of Appeal): Post-employment victimisation held to be unlawful (failure of this to be included in the Equality Act 2010 found to be a drafting error).
  • 7 March 2014 – Penalty for employers in breach of national minimum wage provisions increased from 50% to 100% of the total underpayment. Maximum financial penalty increased from £5,000 to £20,000.
  • 10 March 2014 – Offender rehabilitation reforms shortened the timeframe in which offenders must declare previous convictions to prospective employers.
  • 18 March 2014 – CD v ST (CJEU): Commissioning mothers in surrogacy arrangements do not have the right to maternity leave under European law. However, the UK government will nevertheless introduce this right in the UK.
  • 6 April 2014 – Repeal of the statutory questionnaire procedure in relation to questions by employees or job applicants about discrimination or equal pay. Replaced with best practice guidance from ACAS.
  • 6 April 2014 – Employment Tribunals given a new discretionary power to impose financial penalties of between £100 and £5,000 on employers who lose Tribunal claims where “aggravating factors” exist.
  • 6 April 2014 – New system of ACAS early conciliation introduced (initially optional and became compulsory on 6 May 2014).
  • 6 April 2014 – Statutory Sick Pay reforms including abolition of SSP record keeping requirement and the Percentage Threshold Scheme meaning that SSP payments can no longer be recovered by employers from HMRC. SSP rate increased to £87.55 per week.
  • 6 April 2014 – Whistleblowing: The list of prescribed persons to whom protected disclosures may be made was expanded to include MPs.
  • 1 May 2014 – TUPE: Deadline for transferor to provide Employee Liability Information to transferee increased from 14 days before the transfer date to 28 days before.
  • 15 May 2014 – The maximum fine for employing an illegal worker was increased from £10,000 to £20,000 per worker.
  • 21 May 2014 – Clyde & Co LLP v Bates van Winkelhof (Supreme Court): LLP members are workers under whistleblowing legislation.
  • 22 May 2014 – Lock v British Gas Trading Limited (CJEU): Holiday pay must be calculated to include sales-based commission payments which are regularly earned. The case returns to the Employment Tribunal on 4 February 2015 to determine how this impacts our domestic legislation and methods of calculating holiday pay.
  • 30 June 2014 – The right to request flexible working was extended to all employees with at least 26 weeks’ service (previously only applied to qualifying parents or carers) and the statutory request procedure was repealed and replaced with a simplified requirement to deal with requests “in a reasonable manner”, supported by ACAS Code of Practice.
  • 16 July 2014 – Hainsworth v MoD (Court of Appeal): There is no legal obligation to make reasonable adjustments for employees associated with disabled individuals.
  • 30 July 2014 – Hounga v Allen (nee Aboyade-Cole) (Supreme Court): Illegal workers are not prevented from pursuing discrimination claims against UK employers.
  • 31 July 2014 – TUPE: Information and consultation requirements for micro-employers (fewer than 10 employees) relaxed to allow employers to inform and consult with affected employee direct rather than through employee representatives (provided no existing appropriate representatives and employer has not already invited employees to elect representatives).
  • 1 October 2014 – New right for employees and agency workers in a qualifying relationship with a pregnant woman or the expected child to take unpaid leave to accompany the pregnant woman to antenatal appointments.
  • 1 October 2014 – New power for Employment Tribunals to order employers to carry out an equal pay audit when certain findings are made against the employer at Tribunal.
  • 1 October 2014 – National Minimum Wage rate increases (to £6.50/hour for standard adult rate; £5.13/hour for development rate; £3.79/hour for young workers rate; £2.73/hour for apprentice rate).
  • 23 October 2014 – Sunrise Brokers LLP v Rodgers (Court of Appeal): Employers can elect to waive an employee’s repudiatory breach of contract and in doing so keep the contract aline to preserve post termination restrictive covenants.
  • 4 November 2014 – Bear Scotland Ltd v Fulton and Baxter (EAT): Holiday pay must be calculated to include payments in respect of non-guaranteed and compulsory overtime. The ruling also made clear that employees can only bring claims for unlawful deductions where the series of deductions is not broken by a gap of more than 3 months.
  • 1 December 2014 – New Shared Parental Leave system came into force and applies where a child’s expected week of childbirth begins on or after 5 April 2015 or a child is placed for adoption on or after 5 April 2015. The new optional system of Shared Parental Leave and associated right to pay will allow a mother to curtail her maternity leave and any associated pay and put her remaining entitlement into a shared pot. The same applies for primary adopters in respect of their adoption leave and pay. This shared pot can then be distributed between both parents as shared parental leave and pay.
  • 17 December 2014 – R (UNISON) v Lord Chancellor and another (High Court): The long-running challenge by UNISON of the Employment Tribunal fee system was met with a dismissal of its second judicial review (although granted permission to appeal).
  • 18 December 2014 – FOA (Kaltoft) v Billund (CJEU): Discrimination on the grounds of morbid obesity is not itself unlawful, but if a person had a long-term impairment because of their obesity, then they may be protected by disability legislation.

For further information on this or any other employment issues please contact us on 0333 006 2929 or email info@esphr.co.uk.

 

Author: Nina Robinson

Director, ESP Law Ltd

Nina is an accomplished employment solicitor with over 10 years’ post-qualified experience at leading UK law firms. Nina initially qualified as a corporate solicitor at Addleshaw Goddard and since 2006 practised employment law exclusively, providing advice to employer customers at both DAC Beachcroft and Ward Hadaway Solicitors. Nina has experience of advising a varied portfolio of employer customers, including retail and restaurant groups, financial services and media industry customers on all employment issues.