Just before the 2012-13 parliamentary session came to a close on 25 April, the Enterprise and Regulatory Reform Bill and the Growth and Infrastructure Bill received royal assent.
In the run up to the passage of these Bills a quick game of 'ping pong' ensued: the process whereby bills go back and forth between the House of Commons and the House of Lords until the exact wording is agreed. Last minute concessions were made by the Government in relation to both Bills to ensure passage into law.
While the Bills are now Acts of Parliament, only a limited number of the legislative provisions within each Act commence immediately. The majority only come into force after a set date or after a commencement order by a government minister.
In March, we reported on the Government's revised timetable for implementing employment law reforms published on 14 March. It now appears that the March timetable was overly optimistic and in some case, wholly unrealistic.
Now that we have the Enterprise and Regulatory Reform Act 2013 and the Growth and Infrastructure Act 2013, what are the latest substantive changes and timings on their provisions coming into force? In addition, what will the 2013-14 parliamentary session which opened on 8 May bring?
Here, we provide a full update on where we are now with the reforms. However, for a short, sharp update of the key changes, see our 'Employment law reform snapshot'.
Public interest disclosures
The Enterprise and Regulatory Reform Act 2013 (ERRA 2013) amends the existing statutory whistleblowing provisions in three significant ways. The first change will restrict the current scope by:
- Emphasising the 'public interest' nature of the Public Interest Disclosure Act 1998. This change will mean that for a whistleblowing claim under the Employment Rights Act, the claimant must show that he or she believed their disclosure was made in the public interest and that their belief was reasonable in the circumstances.
Essentially, workers will no longer be able to bring whistleblowing claims relating to a breach of their own contract of employment, unless they can show it is in the public interest; for example, where an employee complains about a general discriminatory culture or practice in the workplace.
While the 'public interest' requirement restricts the current potential scope, two further changes extend the scope.
- The current 'good faith' requirement will be removed. Instead, tribunals will have a new power to reduce compensation by up to 25% if the disclosure was not made in good faith and the tribunal considers it just and equitable in all the circumstances to do so.
- Employers will be vicariously liable where their employees victimise a whistleblowing colleague. So, detrimental acts of one co-worker towards another who has blown the whistle will be treated as being done by the employer. This will be subject to a statutory defence available to an employer who is able to show that it took all reasonable steps to prevent the detrimental treatment of a co-worker towards another who blew the whistle. In addition, a co-worker who has victimised a colleague may be personally liable.
The commencement provisions contained in the ERRA 2013 itself provides that the 'public interest' and 'good faith' changes will come into force on 25 June and only apply to qualifying disclosures made on or after that date. However, the vicarious liability change is not listed within the commencement provisions. While unclear, the vicarious liability provisions are also expected to come into force on 25 June by order to correct what is suspected as a drafting error.
There are two elements to an unfair dismissal award: the basic and compensatory awards. The basic award is calculated on the basis of a statutory formula and subject to a cap which is currently £13,500 (since 1 February 2013). This will remain unchanged.
The compensatory award is an amount the tribunal considers to be "just and equitable", having regard to the loss suffered by the employee insofar as the employer is responsible. It is generally subject to a statutory cap: currently £74,200 (since 1 February 2013). This cap is not applied in some cases; notably where there is a dismissal as a result of having made a protected disclosure, or for having asserted a statutory right.
The ERRA 2013 contains a clause to further limit unfair dismissal compensatory awards. While the existing 'overall' cap of £74,200 will remain, a secondary 'individual' cap of 12 months' pay will also be applied where the claimant's annual wage is less than the overall cap.
This means that for employees earning an annual salary in excess of the overall cap, the overall cap will apply. For employees having an annual wage less than the overall cap, compensation will be capped at 12 months' pay (the individual cap). So for an employee earning £95,000 per annum, the cap of £74,200 will apply, but for an employee earning £25,000 per annum, the cap will be £25,000.
The change to the compensatory award cap will be brought into force on 25 June this year.
Generally, the right to bring a claim for unfair dismissal is dependant upon the employee having the requisite period of continuous service: one year for those employed before 6 April 2012 and two years for those employed on or after 6 April 2012. However, section 108 of the Employment Rights Act 1996 contains a list of reasons for dismissal where the qualifying service requirement is dispensed with.
These reasons include, among others, dismissal as a result of having made a protected disclosure, trade union membership, maternity and asserting a statutory right. The ERRA 2013 now adds dismissals relating to 'the employee's political opinions or affiliation' to the list.
This change is needed to bring existing legislation in line with the European Court of Human Rights' (ECtHR) ruling in Redfearn v United Kingdom. In that case, the ECtHR ruled that the UK is in breach of Article 11 of the European Convention on Human Rights by preventing individuals who do not have the requisite qualifying period of service from making claims for unfair dismissal on grounds of political opinion or affiliation.
Please note that this does not mean that a dismissal relating to 'an employee's political opinions or affiliation' will be automatically unfair; instead, simply that the qualifying service period will not apply.
This change will come into force on 25 June this year and affect cases where the effective date of termination (EDT) is on or after 25 June.
On 25 April, the Government published the draft Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. As expected, there will be two main charging points: the first upon issue of the claim; and the second prior to the hearing.
The level of the fee will depend on the nature of the claim. Level 1 claims, covering disputes over matters such as unauthorised deductions from wages and unpaid redundancy payments, will be subject to a £160 issue fee and £230 hearing fee. Level 2 claims, which include claims for unfair dismissal, discrimination, equal pay claims and whistleblowing, will be subject to a £250 issue fee and £950 hearing fee.
In addition to the two main charging points, there will also be five application-specific fees: counterclaim (£160), judicial mediation (£600), review of a default judgment (£100), application to dismiss following settlement (£60) and application for review (£100 for Level 1 claims and £350 for Level 2 claims). The first four will be payable by the employer and the fifth by the party making the application.
Those on low incomes will be excused payment through a fees remission scheme. Tribunals will be given a discretionary power to order the losing party to reimburse any fees paid to the successful party.
- Implementation of the fees structure is scheduled for the end of July this year, subject to the necessary IT systems and administrative processes being in place.
- Fees must be paid in advance by the party seeking the order.
- Guidance will be given that the existing time limits for making a claim will not be extended because a claimant requires more time to pay a fee or complete a fees remission form.
- If a claimant lodges a claim with a number of different types of claims, the fee payable will be that which relates to the highest level of claim.
- Only claims made to the employment tribunal or Employment Appeal Tribunal on or after the implementation date will attract fees. Any claim in the system before fees are implemented will not attract fee payments. So, a claim issued on the day before fees are introduced would not attract a hearing fee even though the hearing date is after the implementation date.
- Fees will only be able to be paid online or through a centralised processing centre. It will not be possible for fees to be paid in person at individual tribunals.
The introduction of fees is being driven by a demand to shift the funding of the service away from the taxpayer and onto the system users. Payment of fees will no doubt affect the mind-set of many tribunal users. Reimbursement of fees will inevitably be a feature of any settlement negotiations. Will we see a spike in settlements being agreed just before the significant hearing fee is due to be paid?
Following the Underhill Review, new employment tribunal rules are to be introduced. The new draft rules use simpler language and are less than half the length of the old rules in an effort to make them more understandable by unrepresented parties.
The new rules were to have been brought into force is April. However, their introduction has now been delayed to 'the summer'. We still await the final version of the new rules due to be published in 'May' with implementation planned for sometime in late July to coincide with the introduction of tribunal fees (see above).
Vetting and barring
DBS criminal records checks
The Disclosure and Barring Service (DBS) has confirmed that the delayed launch of the new 'Update Service' will take place this summer, hopefully in June.
This new subscription service will enable individuals to keep their DBS certificates up-to-date so these can be taken with them when they move jobs or change roles. Employers can then carry out an online 'status check'. This is an instant check to see if any new information has come to light since the certificate's issue.
Employers will not need to join the Update Service or pay a fee to check a DBS certificate. However, employers must have the individual's consent to be legally entitled to apply for a DBS certificate and the individual must be subscribed to the Update Service.
Separately, in January this year the Court of Appeal ruled that the disclosure of all cautions and convictions on a DBS certificate was incompatible with the Convention for Human Rights. Despite a pending appeal to the Supreme Court, in March the Home Office started the legislative process so that certain old and minor cautions and convictions will no longer be disclosed on a DBS certificate.
The proposed filtering rules are:
An adult conviction will be removed from a criminal record certificate if,
- 11 years have elapsed since the date of conviction;
- it is the person's only offence;
- it did not result in a custodial sentence; and
- it does not appear on the list of specified offences.
- A conviction received as a young person (under 18 at time of the offence) will become eligible for filtering after 5.5 years, unless it is on the list of specified offences.
- An adult caution will be removed after six years have elapsed (two years for a young person) since the date of the caution and if it does not appear on the list of specified offences.
The Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013 is currently awaiting Parliamentary approval.
Equality and Human Rights Commission
Section 64 of the ERRA 2013 curbs the EHRC's duties and powers. While the House of Lords came to its rescue enabling the Commission to retain its 'general duty', its 'good relations duty' and 'power of conciliation for non-workplace disputes' will be repealed from 25 June this year.
The controversial concept of 'employee shareholder' employment status was a hotly fought point in the game of 'ping pong' between the House of Commons and House of Lords. The Government backed provision was repeatedly rejected by the House of Lords. However, the provision did make its way into the Growth and Infrastructure Act 2013, albeit with some significant concessions by the Government.
Basically, employee shareholders will receive shares with a value of at least £2,000 in return for giving up specified employment rights. The shares will be exempt from capital gains tax, up to a maximum threshold of £50,000. In exchange for the shares, the employee shareholders will give up the right to:
- Claim unfair dismissal (except in health and safety cases, automatically unfair cases, or cases where the dismissal is discriminatory under the Equality Act 2010).
- A statutory redundancy payment.
- Make a statutory flexible working request.
- Make a statutory request in relation to study or training.
Employee shareholders will also have to give 16 weeks' notice to return early from additional maternity, adoption or paternity leave (as compared with eight weeks for employees).
In order to get the provision through Parliament, the Government made the following concessions:
- Before an individual can agree to having 'employee shareholder' status, the employer must provide a written statement explaining the rights that would be given up or varied. In addition, the statement must explain the rights attaching to the shares, such as whether they carry any voting or dividend rights and any restrictions on transferability.
- The individual must receive independent legal advice as to the terms and effect of the proposed agreement. Following such advice, the individual will have seven days in which to change their mind on accepting the employee shareholder agreement. The employer will be liable for the 'reasonable' costs of obtaining such legal advice, whether the individual takes up the offer or not.
- If the individual does not receive the statement or advice, or changes their mind within the seven-day period, any agreement to become an employee shareholder will be of 'no effect'.
- Existing employees will be protected from detrimental treatment for refusing to change to employee shareholder status. Dismissal for refusing to accept an offer to become an employee shareholder will be deemed an automatically unfair reason for dismissal.
- Jobseeker's allowance cannot be withdrawn if an 'employee shareholder' job is refused.
Employers considering using the new employment status should remember that no new joiner will have ordinary unfair dismissal or redundancy rights for two years from joining in any event. Furthermore, employee shareholders remain protected against so-called automatically unfair dismissals and from discrimination. Accordingly, employers will still need to be aware that employee shareholders retain some unfair dismissal rights.
Where an employer does wish to employ individuals on an 'employee shareholder' basis, to what extent can they insist upon this? For existing employees, the legislation is clear: the employer cannot insist on the change of status.
When the new employment status was first proposed, the Government indicated that an employer would be free to only offer positions to new recruits on an employee shareholder basis. But what if an individual begins work after entering an agreement and receiving legal advice, but before the expiry of the cooling off period? If they change their mind within the cooling off period, what is their status? Will the individual have become an employee upon starting work making any dismissal for not signing the employee shareholder agreement automatically unfair?
The Government has stated that it intends to bring the new status into force on 1 September 2013.
Pre-termination negotiations and settlement agreements
Under the ERRA 2013, compromise agreements will be renamed 'settlement agreements' and employers will be given more freedom to have discussions with employees about a proposed settlement outside the context of an existing dispute.
The ERRA 2013 contains a new statutory provision to prevent a tribunal, when considering the fairness of a dismissal, from taking into account any offer or settlement discussion held with a view to terminating employment. In essence, this is an extension of the current 'without prejudice' discussion principle to a situation where there is not yet an existing dispute. Currently, although the label is often applied, 'without prejudice' conversations only genuinely take place where there is an existing dispute between the parties being negotiated about.
The new provision will enable an employer to raise a performance or capability issue and include within that discussion a proposal to end the employment relationship on negotiated terms. That conversation could not later be used as evidence that a subsequent decision to dismiss was predetermined, regardless of procedural obligations, in later ordinary unfair dismissal proceedings.
The new provision may provide comfort to employers seeking to resolve a delicate situation. However, beware the important limitations. The statutory provision will only prevent what is stated in the settlement offer, or during discussions about it, from being admissible in ordinary unfair dismissal proceedings. This means that the fact and content of such offer or discussions may be referred to in relation to other claims, such as automatic unfair dismissal, breach of contract and discrimination. Also, the provision will not apply where anything said or done was 'improper' or 'connected with improper behaviour'.
The new statutory provision will be supplemented by an Advisory, Conciliation and Arbitration Service (ACAS) Statutory Code of Practice and guidance. The Code will set out a non-exhaustive list of what might constitute 'improper behaviour' and 'undue pressure', resulting in the removal of the protection surrounding the settlement offer. It will also set a minimum time period an employee must be allowed to consider any offer (currently seven working days is proposed).
In March, the Government indicated that the new statutory provision and ACAS Code would be brought into force 'this summer', however, it now looks like this will slip to October this year. The new provisions will only apply to settlement discussions which take place on or after the date these provisions come into force.
Third party harassment
Section 40 subsections (2) to (4) of the Equality Act 2010 require businesses to take reasonable steps to prevent persistent harassment of their staff by third parties. The ERRA 2013 will remove the provisions on third party harassment, which the Government described as unworkable.
Regardless of the repeal of these provisions, it will still be open to an employee to argue that an employer's failure to act in relation to third party harassment itself amounts to unwanted conduct on the part of the employer.
The Government's previous (and wholly unrealistic) intended repeal date of March has been missed. We currently await the Government's revised implantation timetable, but, it now looks like this will not happen before October this year.
Section 138 Equality Act 2010 sets out the questionnaire procedure that enables an individual who thinks he or she has been discriminated against to gather information from his or her employer. The ERRA 2013 will remove the statutory procedure which the Government describes as failing to increase pre-hearing settlements and instead creating burdens and risks.
While removing the formal procedure, claimants will still be able to seek such information either through pre-action requests, or applications to the tribunal for orders for further information or disclosure. Employers who fail to answer run the risk of a tribunal drawing inferences of discrimination.
Again, the Government's previous (and wholly unrealistic) intended repeal date of March has been missed. We currently await a revised implantation timetable, but, it now looks like this will not happen before October this year.
Stripping away gold-plating?
On 11 April, the Government's consultation on the reform of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) closed.
The Government wishes to make changes to TUPE which it believes gold-plates the Acquired Rights Directive and are overly bureaucratic. The headline proposal is the repeal of the 'service provision change' provisions introduced in 2006. Other changes under consideration include attempts to make it easier to change employees' terms and conditions or to dismiss employees fairly, repeal of the specific Employment Liability Information requirements, and interaction with redundancy consultation.
The Government's response to the consultation is due to be published in July. The Government has already stated that "If the consultation supports change", it will bring the reforms into force as early as October this year. Longer transitional provisions for the repeal of the 'service provision change' provision are under consideration, in light of the potential impact upon current contracts. For more detail see our March 2013 Employment Reform Jigsaw update.
National minimum wage
On 1 October, the national minimum wage rates increase:
- the adult rate rises from £6.19 to £6.31 per hour;
- the youth rate increases from £4.98 to £5.03 per hour;
- the rate for workers aged 16 to 17 increases from £3.68 to £3.72 per hour;
- the apprentice rate increases from £2.65 to £2.68 per hour; and
- the accommodation offset increases from £4.82 to £4.91 per day.
In addition, back in January, the Government expressed a commit to simplify the national minimum wage legislation. The existing 17 pieces of legislation are to be consolidated into one set of regulations. The Government's stated timetable for producing the consolidated regulations by April 2013 has slipped, we wait a revised timetable.
Disciplinary process guidance
ACAS is to produce "a simple online guidance tool on the entire disciplinary process". Aimed at small businesses, the online tool is due to be launched in 'autumn' 2013.
Under the ERRA 2013 the majority of prospective claimants will be required to contact ACAS before they can lodge proceedings at the employment tribunal. While it will be a requirement for prospective claimants to contact ACAS before they can lodge proceedings, the decision on whether to accept the offer of early conciliation will be entirely voluntary. So the requirement is to merely contact ACAS, rather than actually take part in pre-claim conciliation.
While the ERRA received royal assent on 25 April, the new system of pre-claim conciliation will not be brought into force until April 2014.
On a practical note, resourcing of the increased role for ACAS is a concern. Last year, Vince Cable indicated that the Government does not have current plans to allocate additional funds to ACAS for its expanded conciliation role. Mr Cable stated that "it is important that it is properly resourced... but we have had no warnings that it cannot handle the processes that we propose to introduce". A bit of wishful thinking perhaps?
The ERRA contains a clause to introduce financial penalties for employers who lose a claim. The penalty will be payable to the Exchequer, not the claimant. A penalty may be levied where the employer's breach has 'one or more aggravating features'.
The level of a penalty will be subject to a minimum threshold of £100 and a maximum ceiling of £5,000. If a financial award has been awarded to the employee, the penalty will be half of the total award made by the tribunal, subject to the minimum and maximum thresholds. A 50% reduction will be applied if paid within 21 days.
The penalty is intended to encourage businesses to have greater regard for what is required of them in law. In particular, the Government states the intention is that penalties are levied where there are 'aggravating features', such as malice or negligence, and not where an employer has made an 'inadvertent error'.
It will be for the employment tribunal to decide whether a penalty should be imposed, taking into account any factors that it considers relevant, including: 'the size of the employer; the duration of the breach of the employment right; or the behaviour of the employer and of the employee'. No doubt arguments over what constitutes an 'aggravating feature' will follow.
The ERRA provides that this power cannot be introduced for claims presented before 26 October this year. In any event, the Government has indicated that this new provision will not come into force until April 2014.
National insurance contributions
As announced in the Queen's Speech on 8 May, a National Insurance Contribution Bill will be introduced to reduce employer NICs. Subject to the Bill being passed, from April 2014 every business and charity will be eligible for a £2,000 allowance.
Independent Assessment Service
A health and work assessment and advisory service will be introduced from 'spring' 2014. This service will provide:
- A state-funded assessment by occupational health professionals for employees who are off sick for four weeks or more.
- Employers and employees with advice on overcoming the barriers preventing employees from returning to work.
- Case management for employees with complex needs who require ongoing support to facilitate their return to work.
- "Signposting to appropriate interventions" including Universal Jobmatch for those employees able to work, but unable to return to their current job.
While the hotly fought 'employee shareholder' point in the 'ping pong' between the House of Commons and House of Lords went to the Commons, the 'caste discrimination' point was won by the Lords.
Section 97 of the ERRA 2013 contains a provision to add 'caste' as a specific aspect of race discrimination under the Equality Act 2010. The Government had originally opposed the specific reference, instead favouring an education campaign. However, the House of Lords won the argument to specify caste as an aspect of race.
While winning the main point, the House of Lords may have taken its eye off the ball on an actual implementation date. Section 97 comes into force on 25 June, but that simply provides that a Minister of the Crown 'must by order amend [the Equality Act] to provide for caste to be an aspect of race'. While the Government is now committed to making regulations specifying caste as an aspect of race, how quickly these will be made is another question.
A report on the nature of caste prejudice and harassment is to be produced by the Equality and Human Rights Commission later this year. It is reported that the Government will not be taking steps to introduce the required implementing regulations until after it has considered the report. So, when will specific protection against caste discrimination come into force? We will have to wait and see. Before April 2014 appears extremely improbable with sometime in 2014 possible, but perhaps still optimistic.
Private sector gender pay gap information: voluntary reporting or statutory requirement? This has been the debate for years. Equality campaigners have long argued that to tackle the gender pay gap, employers should be required to undertake internal gender pay audits and publish their findings.
The Government is proceeding with a limited step towards required reporting. The ERRA 2013 enables the Secretary of State, at a later date, to give power to tribunals to order an equal pay audit where an employer is found to have discriminated on grounds of sex in contractual or non-contractual pay.
An audit will not be ordered if an audit has been completed in the last three years, the employer has transparent pay practices or the employer can show a good reason why it would not be useful. Employers who do not comply with an order for a pay audit will be subject to a civil financial penalty.
A further consultation is expected at the end of May on the exact details of how the audits will operate and what publication requirements will apply. When such power will in fact be given to tribunals is still unclear, but is unlikely to be before 2014.
In May 2012, the Government Equality Office announced an intention to repeal the power employment tribunals' have to make wider recommendations in discrimination cases for the benefit of the workforce as a whole.
This did not make its way before the last parliamentary session, but is now included in the Deregulation Bill announced in the Queen's Speech on 8 May. Subject to the Deregulation Bill being passed, this change is likely sometime in 2014.
Please note, that while removing the wider recommendations provision introduced by the Equality Act 2010, the more long standing power to make recommendations for the benefit of the individual claimant will remain.
The Children and Families Bill (CFB) has been carried over to the 2013-14 parliamentary session which opened on 8 May.
The CFB will extend the right to request flexible working to all employees who have worked for their employer for 26 weeks or more. The current statutory procedure which governs the right to request flexible working will be repealed. It will be replaced by a duty on the employer to consider requests for flexible working 'in a reasonable manner' and to notify the employee of its decision within three months.
A new ACAS statutory code of practice will also be produced on the handling of requests. A consultation on the draft code is currently running until 20 May 2013. The draft code is 'deliberately concise', only one and half pages, and is 'principles-based'.
The new regime is intended to be much simpler and to give employers the freedom to operate their own procedures. However, employers should note that all requests, including any appeals, must be considered and decided on, within a period of three months from first receipt; unless the employee has agreed to extend this period. Also, employers will still only be able to reject a request for flexible working based on one of the statutory grounds (as in the current regime).
Subject to the CFB receiving royal assent, the Government intends to introduce this change in 'spring' 2014.
Flexible parental leave
As stated above, the Children and Families Bill has been carried over to the 2013-14 parliamentary session. Under the Bill, family friendly leave will be significantly reformed from 2015. While retaining the existing maternity leave and ordinary paternity leave systems, the additional paternity leave introduced in 2010 will be abolished.
The changes will enable mothers to elect to replace a portion of their maternity leave (other than the compulsory maternity leave period) with a new system of 'shared parental leave'. Shared parental leave can be shared between the mother and the father/mother's partner and may even be taken concurrently.
The current adoption leave system will remain but with some significant enhancements. Adoption leave will become a 'day one' right, with the ability to convert to the new shared parental leave system. The level of statutory adoption pay will be increased to mirror statutory maternity pay. Additionally, surrogacy arrangements will be covered by adoption leave.
For more detail on the proposals, please see out previous alert 'Flexibility' is the word: flexible parental leave and flexible working and our March 2013 Employment reform jigsaw update.
The CFB contains the framework for the proposed changes. However, much of the detail on how the new system will work in practice will be set out in future regulations. A consultation on 'Shared Parental Leave and Pay Administration' is currently running until 17 May 2013.
Although not coming into force until 2015, employers need to start considering the reshaping of the existing maternity, paternity, adoption and parental leave systems. In particular, employers should consider terms of any existing enhanced occupational maternity schemes.
On 19 March 2013, the Government announced that it is to introduce a new tax-free childcare scheme to replace employer-supported childcare schemes from autumn 2015. When the new State scheme is opened, employer-supported schemes will be closed to new members: employees already in employer-supported schemes will have a choice to remain within the employer scheme or join the new State scheme.
The Government's consultation on the future of apprenticeships runs until 22 May 2013. The Government's plans include:
- Employer's putting recognised and meaningful industry standards at the heart of every apprenticeship
- Targeting every apprenticeship at a skilled job, involving substantial new learning that will provide the foundations for a career and a springboard for progression
- Delivering training and accreditation of existing fully competent workers separately
- Focusing apprenticeships on the outcome: clearly setting out what apprentices should know and be able to do at the end of their apprenticeship
The Government will set out implementation plans in the autumn, however, it has already indicated an intention that the first teaching of the new apprenticeships will begin 2014/2015.
The inter-play between taking paid holiday and being on sick leave will continue to be a grey area. Reconciling the recent European case law on this topic with the provisions of the Working Time Regulations 1998 (WTR) continues to be difficult.
Following European case law, a worker "prevented" from taking their annual leave due to sickness, must be allowed to carry it over into the subsequent leave year. This includes sickness that arises while on annual leave. The UK courts have also clarified that where a worker is on sick leave for an entire leave year, the failure to request or defer annual leave does not affect that individual's right to carry their leave over into a new holiday year.
But does this relate only to the first four weeks of statutory leave (Regulation 13 leave) which derives from the Working Time Directive (WTD), or does it also extend to the additional 1.6 weeks statutory leave entitlement under regulation 13A WTR? Does it extend even further to any enhanced contractual leave entitlement?
Despite initial proposals on resolving the discrepancies having been mooted by the Government back in May 2011, nothing further has emerged in the following two years. Resolving the discrepancy between the WTD case law and WTR provisions is clearly proving very difficult.
Review of the Agency Workers Regulations
Even as the Agency Workers Regulations (AWR) came into force on 1 October 2011, the Government committed to keeping them under review. A formal review of the operation of the regulations and "opportunities to simplify it" is expected to be launched in June 2013. The review will focus on the paperwork obligations associated with the AWR.
Employment businesses and agencies
The Government's consultation on proposals to simplify and streamline the regulation of the recruitment sector closed on 11 April. Further details are expected in July as to how the Government intends to proceed with its plans to simplify the current regulatory framework, while still maintaining safeguards for work-seekers and hirers.
The European Commission has abandoned its plans to introduce a mandatory quota for achieving a gender balance on boards. Instead, a draft Directive has been published which will set an objective for EU-listed companies to achieve 40% representation of "the under-represented sex" among non-executive directors by 1 January 2020, or 1 January 2018 in the case of public undertakings.
Companies that do not meet the objective must ensure that their recruitment processes are transparent and unbiased, and give preference to equally qualified female candidates. If companies fail to meet the objective by the target dates, they must provide an explanation. Companies will also be required to set a voluntary target for the number of executive directors.
On the domestic front, the Business, Innovation and Skills Select Committee announced a new inquiry into women in the workplace in September 2012. The Committee is considering topics of pay and job segregation inequalities, the impact of the current economic crisis on female employment, gender stereotyping in particular occupations and the promotion of part-time working. Under the first phase, the Committee sought written submissions by the end of last year. The Committee is now considering those submissions.