1. Shared Parental Leave
From 5 April 2015, shared parental leave (SPL) will allow fathers and mothers to share up to 50 weeks of SPL. This leave may be taken by parents together or consecutively between them. Up to 37 weeks of SPL will be paid at the weekly rate of £139.58 unless their employers have an enhanced shared parental leave payment policy in place.
2. Statutory adoption leave
From 5 April 2015, the qualifying period for statutory adoption leave will be removed to bring it into line with maternity leave entitlement. Statutory Adoption Pay will be paid in the same way as Statutory Maternity Payment. An intended parent whose child is born in a surrogacy situation will also be able to claim statutory adoption leave. Adoptive parents will have the right to take time off work to attend adoption appointments in line with the entitlement for birth parents to take time off for ante-natal appointments.
3. Parental Leave
From 5 April 2015, all parents will also be entitled to claim up to 18 weeks of unpaid parental leave for their children up to the age of 18 (previously this was limited to a child up to five years old unless the child is disabled).
4. Employment tribunal fees
After tribunal fees were introduced in 2013, Unison challenged the Government in the High Court in February 2014 arguing that access to justice was compromised. The High Court dismissed Unison's application on the ground there was insufficient evidence to prove indirect discrimination against protected groups such as women, ethnic minorities and disabled people and that the "principle of effectiveness" under EU law is being infringed. Unison appealed to the Court of Appeal and was allowed to return to the High Court with statistical evidence published by the Government in 2014 that showed a significant drop in the number of claims.
The High Court heard the case on 17 December 2014 and Unison's second legal challenge was rejected although permission to appeal was granted. Employers have benefitted from the introduction of tribunal fees but the situation going forward remains uncertain and will remain so depending on which political party wins the General Election.
5. Agency workers
Four years on since the Agency Workers Regulations 2010 (AWR) were implemented, case law is gradually emerging from the Tribunals. In Moran v Ideal Cleaning Services Ltd and another, the EAT held that workers are afforded protection under the AWR only if they are supplied by a temporary work agency to work “temporarily” for the end user. Any open-ended assignment would therefore fail as “temporary” and the AWR will not apply. The case has significant implications for hotels and restaurants which use agency staff to supplement their workforce. The controversial decision will be heard in the Court of Appeal in 2015.
6. Zero hour contracts
Although zero hour contracts received bad press in 2014 because they are considered to be a form of labour exploitation, they are here to stay. In November 2014, the Government announced plans to develop sector-specific codes of practice on the fair use of zero hours contracts. This is expected to include guidance on recommended best practice for providing and cancelling work and how to calculate accrued benefits. Legislation is expected to be introduced to prohibit the use of exclusivity clauses in zero hour contracts and to address any steps taken by employers to avoid the effect of these provisions.
The use of such contracts for casual workers in the hospitality sector is therefore likely to be unaffected so long as they are allowed to work for other employers.
7. Collective redundancy consultation
Businesses that operate multi-site operations will need to keep a close eye on the legislation if they are planning any workforce reductions or closures in 2015. The European Court of Justice will decide in Usdaw v Ethel Austin Ltd (in administration); Lyttle and others v Bluebird UK Bidco 2 Ltd whether or not the 20-employee threshold for triggering collective redundancy consultation applies to one “establishment” or to the whole organisation.
The EAT in England and Wales has already held that “at one establishment” should be deleted from collective redundancy consultation legislation and we are now waiting for the ECJ to rule definitively on the issue. Although the Government has reduced the collective redundancy consultation period from 90 days to 45 days for large scale redundancies, the outcome of the case can significantly affect the timing of restructuring programmes and temporary business closures and also increase the risk of protective awards (up to 90 days’ pay per employee) for employers.
8. Variable pay and holiday pay
If you pay your staff variable pay which is intrinsically linked to the performance of their task (e.g. attendance premiums, radius allowance, travelling time allowance, bonus, commission etc), such payments will need to be accounted for in the calculation of holiday pay held the ECJ in Lock v British Gas Trading Ltd and the EAT in Bear Scotland Ltd v Fulton and another.
The position in relation to non-contractual variable pay and whether claims that are separated by a gap of more than three months are time barred remains unclear but the Government has swiftly introduced new legislation to restrict any backdated pay claims by workers to a period of not more than two years in anticipation of any further adverse court rulings. This restriction, however, only applies to any tribunal claims presented after 1 July 2015.
9. Sickness absence and disabled workers
Disabled and pregnant employees are treated as a special protected class as no comparators are required in discrimination cases involving these categories. Therefore, disability-related absence is usually not taken into consideration by employers when managing performance issues or applying redundancy selection criteria as doing so could constitute direct discrimination. A reasonable adjustment in such a case could be for the employer to reduce the attendance level according to the disability.
In Griffiths v Secretary of State for Work and Pensions, the EAT held that an employer’s duty to make reasonable adjustments for a disabled person does not include disregarding the absence triggers in its attendance policy. The Court of Appeal will determine how employers should treat absence triggers in an attendance policy.
10. Free occupational health assistance for employees with sickness absence of four weeks or more
The new Fit for Work service is scheduled to be introduced in 2015. This will offer employers free, expert and impartial work-related health advice through a website and telephone line and a referral to an occupational health professional where staff have been off sick, or who are likely to be off sick, for four or more weeks.
The Fit for Work occupational health professional will identify obstacles preventing the employee from returning to work and produce a ‘return to work plan’ tailored to the employee’s needs. Employers will be able to claim up to £500 tax relief on payments for medical treatment for their employees where the treatment has been recommended under the new scheme (http://fitforwork.org/)