1. April 2013 changes: collective redundancy, statutory pay rates, injury to feelings and mental health
  • The minimum period between starting consultation on 100 or more proposed redundancies and the first dismissal taking effect has been reduced from 90 days to 45 days. The Secretary of State must also be notified of the proposals at the start of this period. New regulations also expressly exclude expiry of fixed term contracts from counting towards the threshold for consultation (but early termination of such contracts for redundancy would still be covered). The changes apply to proposals made on or after 6 April 2013.

Acas has just published new guidance reflecting the change, available here. Although this will be a useful guide for employers, setting out practical considerations (eg dealing with the psychological impact on individuals) as well as the law, those hoping for clear answers on the meaning of an "establishment" may be disappointed - indeed the guide acknowledges that legal advice may still be required on this issue. Case law is likely to develop this area further in any event.

  • Statutory maternity, paternity and adoption pay increased to £136.78 per week from 7 April 2013; statutory sick pay increased to £86.70 on 6 April 2013.
  • Injury to feelings awards in discrimination claims are likely to increase by 10% from 1 April 2013, pursuant to the Court of Appeal ruling in Simmons v Castle increasing damages on grounds such as ‘pain and suffering’.
  • The Mental Health (Discrimination) Act 2013 provides that, from 28 April 2013, the statutory model articles of association for companies will no longer provide for automatic termination of a director's appointment on grounds of mental health. Although not required to do so, companies with articles containing this provision may wish to consider removing it, to enable decisions on directors' capacity to be made based on the individual circumstances and taking into account employment rights. The Act also repeals legislative provisions preventing people with mental health conditions from serving as MPs, members of the devolved legislatures and jurors.
  1. Employment law reforms: revised timetable

The Government has published revised timings for some of the employment law changes in the pipeline, available here.  It appears that restricting changes to the April/October schedule has been abandoned for the time being.

The new employment tribunal procedural rules and tribunal fees are now due to come into effect in the Summer, rather than April. 12 July 2013 has been suggested unofficially as a likely date.  The Government has also published its response to the consultation on the new rules, available here.  They will be implemented largely unchanged, save that parties will now be given 14 days' notice of the single preliminary hearing (combining the current case management discussion and pre-hearing review) which will set out the agenda, including whether strike-out or deposit orders will be considered.  The early sift stage (whereby the judge will review the pleadings and can strike out those parts which have no reasonable prospect of success) is to go ahead.  The Government also plans that interest will begin to accrue on tribunal awards from day one unless paid in full within 14 days.  A revised draft of the new rules will be laid before Parliament in May 2013.

Proposed changes to discrimination claims (abolishing statutory questionnaires, and removing the third party harassment provisions in the Equality Act 2010) were planned for March 2013, but have been delayed and no revised timetable has been given for them.  The statutory questionnaire is to be replaced with an informal approach set out in Acas guidance, which will include advice on how individuals can ask questions and why employers and service providers should respond.

Other changes now due to come in this Summer are:

  • the new cap on the unfair dismissal compensatory award at the lower of one year's pay and the existing limit;
  • protected settlement negotiations (inadmissible in ordinary unfair dismissal claims);
  • changes to whistleblowing rules (employer vicarious liability for detriment by colleagues; new public interest requirement and removal of good faith test).

The proposed introduction of a new "employee shareholder" status has been put back from April to the Autumn.  The Budget statement confirmed that the expected implementation date is 1 September 2013, and that the first £2,000 worth of shares will be free from income tax and NICs.  On the same day, the House of Lords voted to remove the employee shareholder provisions from the Growth and Infrastructure Bill;  the Bill returns to the Commons on 16 April.

Changes to TUPE are still expected in October 2013.  Acas early conciliation and employment tribunal penalties for employers are now not expected until Spring 2014, along with the extension of the right to request flexible work.

The Home Office has also announced changes relevant to employee recruitment.  Old and minor criminal convictions will no longer be included in criminal record checks pursuant to legislation expected to be in place within weeks.  This follows a recent Court of Appeal ruling that the current checks do not comply with human rights laws.

  1. Redundancy: can be reason for dismissal notwithstanding performance/conduct concerns

Employers may be able to establish that the reason for a dismissal is redundancy even if they also have concerns about an employee's performance or conduct.  Two recent cases have illustrated that, provided there is a genuine redundancy situation, some tribunals may readily infer that redundancy is the reason for dismissal.  The EAT will be slow to interfere with a tribunal's assessment of causation, assuming it has properly considered all the facts.

The EAT upheld a tribunal ruling that an employee was dismissed for redundancy where, due to his poor performance, another employee had been recruited to troubleshoot.  This more competent employee was kept on in light of the employer's fear that the first employee would leave, meaning that at the point of dismissal there were two people doing one job.

This could easily have been viewed as the employer engineering a sham "redundancy" scenario to dismiss a poorly performing employee – a different tribunal might well have viewed poor performance as the true reason taking into account events prior to the dismissal, notwithstanding that a technical redundancy situation was the reason at the moment of dismissal.  (Malekout v Ahmed & ors (t/a The Medical Centre))

Similarly, the EAT upheld a tribunal ruling that redundancy was the principal and real reason for dismissal where the employer also held a dim view of the employee's conduct and capability in Fish v Glen Golf Club.

Inevitably, much will depend on the tribunal's assessment of the facts.  

  1. Disability discrimination: obesity is not a disability but obese employees may well be disabled

The EAT has confirmed that obesity is not in itself an impairment for disability discrimination purposes. However, obesity may make it more likely that an individual has impairments sufficient to satisfy the legislative definition.

It is the impairments themselves that must be considered and it is not necessary to establish the cause.  The EAT also noted that obesity might affect the length of time for which the impairment is likely to last and therefore whether it has a "long-term effect".  For example, if the obese employee is determined to lose weight and it can be confidently predicted that they will achieve a normal weight well within a year, this may mean that the impairments caused by the obesity do not have a long-term effect. (Walker v Sita Information Networking Computing)

  1. Unfair dismissal: GB connection test for eligibility to claim

The test for employees working abroad to be eligible to claim unfair dismissal in Great Britain is whether there is a much stronger connection, not only to Great Britain, but to British employment law, than with any other territory.  The EAT has recently emphasised that this question should be considered from first principles, rather than trying to fit the facts into previous decisions. 

A German national married to a British solider and working in a play centre on a British army base in Germany was held ineligible.  In reaching this view, it was relevant that she was not a British citizen, she was not employed by the Crown, government or army, the nursery was on the part of the base accessible to everyone (and so not a wholly British enclave), her job was not confined to dependents of serving soldiers, and her employment contract was governed by German law.  These factors distinguished her position from the wives in Wallis v Ministry of Defence.  (Rogers v Deputy Commander)

  1. New publications
  • our briefing on the Government's proposals for shared parental leave, due in 2015
  • the latest HSF Corporate e-bulletin covering the creation of the Trade Union Share Owners group with its own voting guidelines on directors' remuneration, and BIS's FAQs on the forthcoming changes to directors' remuneration disclosure rules
  • guidance for small businesses on the Equality Act, and a guide to business and human rights (covering issues such as the right to privacy and confidentiality of customer and staff data), published by the Equality and Human Rights Commission
  • various templates to assist with appraisal and other management issues, published by Acas