1. Legislative changes April 2015: family-related leave, rates, Acas Code

The new shared parental leave and pay regime came into operation on 5 April 2015 (applying to parents of children expected to be born, or placed for adoption, on or after that date). Acas has recently published a suite of materials on the new regime, including sample policies and letter templates, available here.

In addition, a number of other minor changes to family-related rights are now in force and will require employers to amend their policies:

  • The 26 week service requirement for adoption leave has been removed, and time off for adoption appointments introduced. Statutory adoption pay now mirrors statutory maternity pay, with a higher rate for the first 6 weeks.
  • Equivalent family-related leave rights are extended to those fostering to adopt, adopting from abroad and parenting through surrogacy.
  • Unpaid parental leave is now available up until a child turns 18.
  • Additional paternity leave and pay have been abolished.

A table setting out the key facts of family-related rights and a briefing on shared parental leave are available to clients on request.

New employment tribunal compensation limits and rates of statutory benefits also apply from early April; further details are included in our blog here.

The revised Acas Code on discipline and grievance, amended to reflect case law on the right to request a companion, has now been approved by Parliament and came into effect on 11 March. See our blog for further details. Employers will need to review and update their disciplinary and grievance policies to reflect the revised Code.

  1. Legislative changes October 2015: tribunal recommendations and NMW
  • The Deregulation Act 2015, given Royal Assent on 26 March, removes the current power of employment tribunals to make wider recommendations for the benefit of the employer's workforce following a successful discrimination claim. Applying to claims commenced on or after 1 October 2015, tribunals will only be able to make recommendations for employers to take steps which are for the benefit of the claimant (and therefore not where the claimant has left employment).
  • The March Budget confirmed that the national minimum wage will be increased to £6.70 from October 2015. BIS has updated its guidance on the NMW for employees who sleep between duties, available here.
  1. Small Business, Enterprise and Employment Act 2015: mandatory gender pay gap reports and zero hours contracts

The Small Business Enterprise and Employment Bill also received Royal Assent on 26 March, though commencement orders will be needed to bring the employment provisions into force.

The key employment-related changes concern gender pay reporting and zero-hours contracts.

  • The Act provides that regulations must be introduced as soon as possible and within 12 months (ie, by 25 March 2016) requiring larger employers with 250 or more employees to publish details of their gender pay gap. The detail of what must be reported and where will be covered by regulations to be made by the new government after the election. Publication of this information may well increase the risk of equal pay claims or reputational damage and larger employers may wish to audit their position and consider taking action to address disparity ahead of the requirement coming into force.
  • The Act also bans exclusivity clauses in zero hours contracts, with the Government retaining power to make further provisions by regulation. The Government consulted on tackling avoidance and its response and draft regulations are available here. The draft regulations provide protection against detriment for zero hours workers if they work for someone else, impose financial penalties for employers seeking to avoid the ban, and extend protection to low income workers. Of course the direction of further progress in this area will depend on the outcome of the general election.

Other changes in the Act include financial penalties on employers for unpaid employment tribunal awards and settlements, increases to the penalty for underpayment of the national minimum wage, a new power to make regulations requiring "prescribed persons" to produce annual anonymised reports of whistleblowing disclosures, and provisions limiting the ability to postpone tribunal hearings.

  1. Duty to make reasonable adjustments: employers not fixed with constructive knowledge of disability provided took reasonable steps to investigate

An employer's failure to investigate discrepancies in an occupational health report (which found no disability) will not necessarily fix it with constructive knowledge of disability and thereby a duty to make reasonable adjustments. An employer is only required to carry out a reasonable investigation into an employee's health. In this case, the employer had reviewed GP letters regarding the absences from work, discussed the employee's health with her, and made follow-up enquiries of the occupational health adviser (which were not answered adequately). This was sufficient to meet the required standard without going back to the adviser for further clarification, and enabled the employer to form its own reasonable judgment that the employee was not disabled. It was therefore under no duty to make reasonable adjustments. (Donelien v Liberata)

The case reiterates the importance of not relying unquestioningly on an occupational health report. It also provides some comfort to employers that, if other steps are taken including consulting the employee, it may satisfy the standard of investigation required even where it fails to follow up on queries about the report.

  1. Disability: type 2 diabetes controlled by abstention from sugary drinks is not disability, according to EAT

Type 2 diabetes is not necessarily a disability for employment purposes, according to the EAT. A claimant did not satisfy the definition of disability where he was able to sufficiently reduce the effects of the impairment by a coping strategy involving abstaining from sugary drinks. The EAT considered that this type of abstinence could not be regarded as a 'diet' and so did not equate to a medical treatment (which is to be ignored when assessing impairment).

Of course each case should be decided on its facts so it is possible that other employees with Type 2 diabetes (or food allergies) controlled by abstention from certain products might still qualify as disabled; there must also be scope for argument in a future case as to whether this view of what constitutes a 'diet' is correct. (Metroline Travel v Stoute)

  1. TUPE: SPC despite service being provided to more than one client

The EAT has ruled that there can theoretically be a change of service provider covered by TUPE even where the service is provided to more than one client under more than one contract, provided the clients are a group with a common intention as to the manner in which the activities are to be carried out and they remain the same post transfer. The reference in TUPE to "a client" could be interpreted as encompassing a group of clients in this context. In this case, the clients were management companies for a number of residential blocks on the same site, who grouped together to commission property management services from a single provider albeit under separate contracts. (Ottimo Property Services Ltd v Duncan)

  1. Harassment: potential liability for damages to indirect victim

An employer could be vicariously liable under the Protection from Harassment Act 1997 for harm caused by an employee harassing a colleague, including harm foreseeably and directly caused to another person; this could be a spouse living at the same address and caused alarm by the employee's behaviour at that address. The Court of Appeal has ruled for the first time that an indirect victim of harassment may be able to claim damages under the 1997 Act. (Levi v Bates)

  1. Appeal news: collective redundancies, tribunal fees
  • The ECJ has confirmed that it will deliver its ruling on the UK trigger for collective redundancy consultation in the Woolworths case on 30 April 2015 – see here for further details.
  • The Court of Appeal is due to consider UNISON's challenge to the employment tribunal fees regime in June 2015. Leave to appeal the second judicial review ruling has now been granted and both appeals will be heard together.
  1. New publications
  • BIS has published Guidance for employers on whistleblowing, available here. It contains recommendations for writing and promoting whistleblowing policies, and a code of best practice.
  • We have recently updated our multi-jurisdictional guide discussing potential employee issues in business transfers (first published in October 2013). The second edition reflects the law as at February 2015. The guide is a quick reference tool covering the key legal requirements in 32 jurisdictions in EMEA, South and Central America and Asia-Pacific, in a simple Q&A format. To request a soft copy of the fully updated guide, please click here.
  • Our Incentives Group have published a briefing on the proposed guidelines from the European Banking Authority (EBA), which would extend the “bankers’ bonus cap” to a broader range of investment firms including certain AIFMs. Combined with the regulations governing the identification of “Code Staff”, this would mean the bonus cap could limit bonuses paid to any staff member of such firms whose fixed remuneration (primarily salary) is £120,000 (€166,667) or more. The FCA is strongly encouraging all firms to respond to the consultation, which is open for responses until 4 June 2015. Please click here to read our full briefing on the topic, including our views on arguments that the EBA’s view is based on a mistaken reading of the Capital Requirements Directive (CRD4).