Proceeding apace with its review of employment law, the government has recently issued a timetable for the implementation of various employment law reforms during 2013. Taken together with earlier statements from the government as to its intentions regarding future developments, plus recently issued consultations and responses, we set out below a summary of the many employment law reforms that 2013 is likely to hold.
- Parental leave will be increased from 13 to 18 weeks per child. There will still be a limit of four weeks per year. The right to request flexible leave on returning from parental leave will be extended to employed agency workers.
- Provisions in the Equality Act 2010 dealing with employers' liability for the harassment of employees by third parties are to be repealed.
- Although slightly unclear from the government's timetable, it seems as though March will see the abolition of the discrimination questionnaire procedure.
- Revised guidance on "fit notes" will be published, which will emphasise the importance of assessing an individual's health condition in relation to work in general rather than their specific role.
- The 90 day consultation requirement for redundancies involving 100 employees or more at one establishment will be reduced to 45 days. A non-statutory Code of Practice from ACAS will be produced to provide guidance on how collective consultation should be conducted.
- New rules of procedure for Employment Tribunals will be implemented, following the Review by Judge Nicholas Underhill. It is not yet clear which of his recommendations will be implemented but we expect the reforms to include the introduction of an early sift to weed out weak claims, combining Case Management Discussions and Pre-Hearing Reviews, increasing judges' powers to award costs and introducing a more flexible privacy and restricted reporting regime.
- A new "public interest" requirement will be implemented in respect of whistleblowing claims, such that claims will only be permitted where the disclosure on which the claim is based is "in the public interest".
- The new "employee shareholder" status will be introduced, as part of the Growth and Infrastructure Bill 2012-13. This will allow employees to receive a minimum of £2,000 worth of shares in their employer company in exchange for surrendering certain employment rights, including the right not to be unfairly dismissed and the right to a statutory redundancy payment. The shares will not be subject to Capital Gains Tax when sold.
- Employers' strict liability for injuries to employees in the work place is to be removed.
- The Children and Families Bill is likely to get Royal Assent which will include proposals for flexible parental leave which can be shared between both parents. The Bill will also extend the right to request flexible working to all employees with 26 weeks continuous employment. The measures are not expected to come into effect, however, until 2014/15.
- The Information Commissioner's Office is expected to publish a new statutory Code of Practice on subject access requests. The Code will explain the rights of individuals to access their personal data and will set out the obligations of data controllers when responding to subject access requests.
- A Disclosure and Barring Service check, which will enable employers to access criminal records of employees online, will be established.
- Pre-termination discussions between an employer and employee will be inadmissible in (standard) unfair dismissal cases except where there has been "improper behaviour". The protection will not apply to claims of automatically unfair dismissal, discrimination, whistleblowing or breach of contract.
- The government will re-name compromise agreements "settlement agreements" and will publish a statutory Code of Practice on how settlement discussions should be conducted.
- A new cap will be introduced to the compensatory award in unfair dismissal claims. The cap will be whichever is the lower of the current limit (£72,300) and one year's salary for the claimant.
- The above measures will be included in the Enterprise and Regulatory Reform Bill. Please click HERE for a link to the government's response to the consultation on "Ending the Employment Relationship". We will report in more detail on the government's response in a future bulletin.
- Fees will be introduced for Employment Tribunal claims. The fee system will be two tiered, with a total cost of £390 to bring a tier 1 claim, (e.g. statutory redundancy payments and payments in lieu of notice), and £1,200 to bring a tier 2 claim, (e.g. unfair dismissal, discrimination, equal pay and whistleblowing).
- Shareholders of listed companies will receive additional rights regarding directors' remuneration, including a binding vote on the directors' remuneration policy at least once every three years and restrictions on payments which can be made to directors for loss of office. Additionally the government has consulted on changes to the reporting of directors remuneration for listed companies. These measures are part of the Enterprise and Regulatory Reform Bill 2012-2013.
- Tribunals will be given the power to force employers to undertake an equal pay audit if they are the subject of a successful equal pay or pay-related discrimination claim.
- The government is consulting on the introduction of mandatory pre-claim conciliation by ACAS which is expected to come into force in October 2013. Claims to Tribunals will not be permitted unless a claimant can produce a certificate from ACAS confirming that the conciliation process has been completed. The consultation closes on 15 February 201. Please click HERE for a link to the consultation document.
- The government is also consulting on changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") which, again, are expected to take effect in October 2013. The proposals include the repeal of the "service provision change" test, the removal of the obligation to provide employee liability information and amendments to the provisions on changing terms and conditions of employment in the context of a TUPE transfer. Please click HERE for a link to the consultation document, and HERE for a link to our separate alert on this topic.
Other reforms expected during 2013
- The SSP record keeping requirements for employee sickness absence are expected to be abolished, and employers will be allowed to keep records in a more flexible manner.
- The government is consulting on changes to the regulation of the recruitment sector. The government is proposing to replace the current regulations on recruitment found in the Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Business Regulations 2003, with the "simplest regulatory framework possible". The consultation closes on 11 April 2013. Please click HERE for a link to the consultation document
Please click HERE for the government's "Fifth Statement of New Regulation", December 2012, which includes the government's legislative timetable.