Employment law changes in 2012: the lull before the storm?
As the end of the year approaches, we have summarised 2012's key employment legislative changes and case law below.
The results are revealing. Despite a slew of Government proposals during the year, there has been less actual change implemented in 2012, suggesting that many of this year's proposals will, after some horse-trading, be implemented in 2013.
Given a potentially busy 2013, we aim to help you keep track of legal developments. In addition to our timely e-briefings, we produce a monthly snap-shot of notable cases and planned legislative changes. Our December 2012 summary can be viewed by clicking here. In addition, we have a comprehensive guide to recent and pending employment law changes here.
A summary of the key employment legislative changes during 2012
- The qualifying service for unfair dismissal increased to two years for new starters
- Statutory clarification provided that a claimant's lawyer can compromise claims under the Equality Act 2010
- The Employment Tribunal Rules of Procedure were amended to permit unfair dismissal claims to be heard by judges sitting alone, increase the maximum levels of deposit orders and costs awards, require witness statements to be ordinarily taken as read and provide a power to order a party to pay witness expenses. For further information, read our briefing on these changes
Safeguards designed to protect workers' automatic enrolment rights came into force and applied immediately to all employers. Employers are prohibited from inducing workers to opt-out of a qualifying pension scheme, asking workers during the recruitment process whether or not they plan to opt-out and treating workers detrimentally where they seek to enforce their pension rights. For further information, read our briefing
Following the Government's extensive review of the vetting and barring scheme for people who work with children or vulnerable adults system, significant changes were introduced. For further information, read our briefing
The new pensions automatic enrolment requirements were applied to the UK's largest businesses from the beginning of October (those that had 120,000 or more people in their largest PAYE payroll scheme on 1 April 2012). The new requirements are being phased in and will ultimately apply to all employers with workers in the UK, including those in the public sector. For further information, read our briefing
Some case law highlights from 2012
Collective redundancy consultation - University of Stirling v UCU
The EAT decided that collective consultation obligations were not engaged upon the expiry of some fixed term contracts. It decided that a fixed term contract involves the employee accepting that it would come to an end at a particular date or on the occurrence of a particular event, and therefore for a reason relating to the individuals concerned and not a "redundancy" as defined for consultation purposes. This decision is subject to appeal and should be approached with caution. For more information, read our briefing
Age discrimination - Seldon v Clarkson, Wright and Jakes, Homer v Chief Constable of West Yorkshire Police
The Supreme Court decided these two leading age discrimination cases. In Seldon, the Court gave guidance on the type of legitimate aims that an employer may rely upon when justifying direct age discrimination in the context of mandatory retirement. In Homer, the Court considered the discriminatory impact of an employer insisting upon degree level qualification for promotion. As a result, employers will come under increased pressure to justify such requirements in recruitment and promotion. For further information, read our briefing
Dismissal on grounds of political affiliation - Redfearn v United Kingdom
The European Court of Human Rights ruled that the law of Great Britain does not give adequate protection to employees with short service who are dismissed because of their political affiliations. Unless the government successfully challenges this ruling, domestic employment law will have to change. For further information, read our briefing
Working time and holidays - Neidel v Stadt Frankfurt am Main, NHS Leeds v Larner
In Neidel the Court of Justice of the European Union ruled that the right for sick workers to carry forward untaken leave under the Working Time Directive only applies to the 4 week minimum leave entitlement given by the Directive and that, while rules can provide for carried over leave to 'expire' if not taken within a set period, the window of opportunity for taking leave cannot be too short. In Larner, the Court of Appeal decided that workers, who have been absent from work on sick leave, are entitled to holiday pay in lieu of untaken statutory holiday on termination of employment whether or not they have requested to take the holiday, or carry it over, during the relevant leave year. For further information, read our Hunter v McCarrick briefings
TUPE and service provision changes: Abellio London Ltd v Musse and Others
A change in the place of work is a relatively common occurrence under TUPE, particularly where there is a service provision change. In Abellio, the EAT decided that such a change could give rise to a constructive dismissal under TUPE, even where the new place of work was within a contractual mobility clause, providing the change is a substantial one to the detriment of the employee. In addition, as the dismissal was not for an economic, technical or organisational reason, it was automatically unfair.
There have been a number of other cases clarifying the application of service provision changes under TUPE. For example, in Hunter v McCarrick the out-sourcing of property management services coincided with the appointment of receivers over the property. The Court of Appeal decided that, as the client had changed post-transfer, there was no service provision change.