1. Unpaid parental leave increase: 8 March 2013
From 8 March 2013, qualifying employees will be entitled to 18 (instead of 13) weeks' unpaid parental leave per child. The right to request flexible working has also been extended to agency workers returning to work following a period of parental leave. Employers' parental leave policies should be updated to reflect the change.
Currently leave must be taken before the child’s 5th birthday or a disabled child's 18th birthday. The government plans to allow parental leave to be taken up until the child’s 18th birthday for all children, from 2015.
2. TUPE/collective redundancies: employers must provide agency worker information
In October 2011 the obligations to provide information to union/ employee representatives on a TUPE transfer or when proposing collective redundancies were amended to require information to be given about the employer's use of agency workers throughout its business. A recent tribunal decision serves to remind employers of the risks of failing to provide this information; the maximum award is 90 days' pay per affected employee.
In Unison v London Borough of Barnet the tribunal made awards of 60, 50 and 40 days' pay per affected employee in relation to the failure to provide agency worker information on a collective redundancy and two TUPE transfers. The varying levels of award took into account the tribunal's perception of how important the agency worker information was to the consultation process (ie, more important for the redundancies), the ease of producing the information and whether the employer had been made aware of its breach by complaints from the representatives.
3. Indirect age discrimination: applying new policy to existing staff may not be justified
The introduction of a new policy, such as qualification requirements for a particular job, can potentially amount to indirect discrimination in relation to a protected characteristic such as race or age. If so, employers need to establish a legitimate aim and that the policy is justified to achieve this aim. In considering justification, they should consider both whether the policy is justified generally and whether it is justified to apply it to existing staff as well as new recruits.
In Homer v CC West Yorkshire Police, the Supreme Court had ruled that it was potentially indirect age discrimination to require a law degree for staff at the top of the grading structure (see here). On its return to the tribunal, the judge ruled that although the policy was justified for new recruits, to improve the quality of staff recruited and retained, it was not justified to impose it on existing staff. The employer had argued that treating new and existing staff differently would give rise to legal and industrial relations problems. The tribunal was unconvinced, given the possibility of adopting the "widespread practice" of red circling existing staff.
Although it was likely that a law degree would lead to a better calibre of adviser, there was no evidence of client demand for the existing advisors to be more highly qualified. Equally there was no evidence that retention would be affected by an exception being made for existing staff. It was therefore not appropriate or reasonably necessary to apply the new rule to existing staff.
4. Post-employment conduct: whistleblowing disclosures protected; victimisation not prohibited by Equality Act
Case law has established that subjecting an employee to detriment post-employment for a whistleblowing disclosure made during employment is unlawful. In Onyango v Berkeley the EAT has now confirmed that there is protection even if the disclosure itself is made after the employment has ended.
In contrast, the EAT in Rowstock v Jessemey has ruled that, due to a drafting error, the Equality Act does not prohibit post-employment victimisation. This commonly consists of an employer giving an unfairly negative reference or refusing to give a reference (when it is normal practice to do so) because the employee has made or been involved in a discrimination claim. Leave to appeal was given; if the appeal fails, the Government will need to amend the Act as this position contravenes EU law.
5. Unfair dismissal: tribunals should not normally look behind a final written warning
It is reasonable for an employer to take a current, final written warning into account when dismissing for subsequent misconduct, provided it was issued in good faith, there were at least prima facie grounds for imposing it and it had not been manifestly inappropriate to issue it.
A dismissal relying on such a warning was fair, despite the employer's failure to consider evidence which might have shown that the employee was innocent of the initial alleged misconduct (Davies v Sandwell Metropolitan Borough Council, CoA).
6. Redundancy: use of competency assessment as selection criterion was unfair
Selection for redundancy based mainly on performance in a competency assessment carried out by HR, without reference to past appraisals or input from line managers, is likely to be unfair.
The EAT ruled that an employer persisting with this approach in the face of some surprising results had lost touch with common sense. The resulting dismissals were unfair. (Mental Health Care (UK) Ltd v Biluan, EAT)
7. Union recognition: existence of "sweetheart" union recognised only for peripheral rights will not thwart application
The Central Arbitration Committee has ruled that an independent union's application for statutory recognition cannot be thwarted by the existence of a collective agreement with another union covering members of the relevant bargaining unit, unless that agreement covers collective bargaining rights for pay, hours and holidays.
In PDAU v Boots Management Services the employer had an existing agreement with another union but this only covered facilities for union officials and the machinery for negotiation or consultation. This satisfied the plain wording of "collective agreement" under the relevant statute, but the CAC ruled that this must be construed differently in order to comply with Article 11 of the European Convention on Human Rights. Words should be read in so that an application for statutory recognition can only be thwarted if another union has collective bargaining rights in respect of pay, hours and holidays.
8. Enterprise and Regulatory Reform Bill: amendments to whistleblowing, financial penalties on employers, dismissal for political opinion/affiliation
The Government has proposed, and the House of Lords approved, a number of amendments to the Enterprise and Regulatory Reform Bill:
- The Bill already includes provisions adding a requirement for whistleblowers to be acting "in the public interest" and removing the need for the disclosure to be in good faith (although tribunals will be able to reduce compensation by up to 25% for bad faith). The latest amendment would make individual workers or agents personally liable for subjecting whistleblowing colleagues to acts of detriment and makes the employer vicariously liable for these acts unless it can show it took all reasonable steps to prevent such treatment. This would rectify the lacuna identified in the case of Fecitt; once in force employers will need to adopt and properly implement whistleblowing policies and training, in the same way as they do equal opportunities policies and training.
The Government has also indicated that it will consider extending whistleblowing protection to job applicants in future, if it is satisfied of the need to do so. It plans to call for evidence on this as part of a wider review of the whistleblowing legislation in due course. Meanwhile, Public Concern at Work has set up an "independent Whistleblowing Commission" to examine existing arrangements for workplace whistleblowing and make recommendations for change, due to report in November 2013.
- The Bill included a power for tribunals to impose a fine of between £100 and £5,000 per claimant for aggravated breaches of employment law; the amendments provide that tribunals must consider an employer's ability to pay before imposing such a fine and remove the minimum of £100 per claimant for multiple claims.
- The qualifying period for unfair dismissal will not apply where the principal reason for dismissal is or relates to the employee's political opinions or affiliation. This change is to comply with the ECtHR ruling in Redfearn.
The Government has said that it does not intend to make caste discrimination unlawful at this time and will await the report of the Equality and Human Rights Commission into the issue later this year. It intends to oppose the amendment introduced and agreed in the House of Lords making caste discrimination unlawful.
Acas has confirmed that its early conciliation service, provisions for which are also included in the Bill, will start in April 2014.
9. Consultations on Acas Codes: settlement discussions and flexible work requests
Acas has published an initial draft Code on settlement discussions, for consultation until 9 April 2013. This relates to the provisions in the Enterprise and Regulatory Reform Bill to enable employers to hold termination settlement discussions prior to starting a disciplinary or performance management process without the risk of the discussion being referred to in an ordinary unfair dismissal claim, unless there has been "improper conduct". These are expected to come into force in summer 2013.
The key part of the draft Code focuses on what is meant by improper behaviour, which Acas suggests includes discriminatory or unlawful conduct and "putting undue pressure on a party". Examples of undue pressure are given, including an employer allowing less than seven days to consider the offer or reducing the value of the offer within this time, an employer threatening dismissal if the offer is rejected, or an employee threatening to undermine the employer's public reputation. Acas is seeking views whether these examples are appropriate and whether other examples of improper and acceptable behaviour should be included.
Acas is also consulting until 20 May 2013 on a draft statutory Code on dealing with the new extended right to request flexible work due to be introduced in 2014.
The Children and Families Bill includes provisions to extend the right to all employees with 26 weeks' service and replace the statutory process for handling requests with a more general duty to deal with requests in a "reasonable manner" and notify employees of the decision within three months unless an extension is agreed. Employers will still only be able to reject a request for flexible working based on one of the current statutory grounds.
The draft Code suggests that employees should be allowed a companion at a discussion of the request, that the presumption should be that the request will be granted unless there is a business reason for refusing, and that an employee should be able to appeal a refusal.
It does not offer suggestions of how to deal with competing requests without inadvertently discriminating – this may instead be covered by the non-statutory guidance yet to be issued.
10. Government consultation: provisions for administering shared parental leave
The Government is consulting until 17 May 2013 on how the shared parental leave scheme to be introduced in 2015 (see here) should be administered - click here for the consultation paper. The power to introduce the scheme is contained in the Children and Families Bill but most of the detail is left to regulations yet to be drafted. The Government intends to publish its response in "late summer".
Key points (subject to consultation) include:
- To qualify, parents will both need to satisfy an economic activity test (working at least 26 out of the 66 weeks prior to the due date and receiving a minimum average pay), as well as individually qualifying for shared parental leave (a service requirement of 26 weeks' continuous employment with the same employer at the 15th week before the EWC and continued service with the same employer when leave is taken) and for parental pay (a salary threshold). There will be a system of self-certification of eligibility much like the current additional paternity leave system.
- Women will have to give at least 8 weeks' notice of converting their maternity leave to shared parental leave and will be bound by this unless they discover they do not in fact pass the joint economic activity test or, if they have given notice prior to childbirth, if they change their mind within a short window post childbirth (the Government is suggesting 4 or 6 weeks).
- Employers will only be entitled to receive 8 weeks' notice of parents' requests to take shared leave, to be followed by 2 weeks' discussion of the pattern leave should take. If no agreement is reached, the default position will be that the leave requested must be taken in one block. As the consultation suggests that several requests can be made, each for part only of the employee's total entitlement, this suggests that employers may not be able to insist on the whole entitlement being taken in one block, contrary to the Government's previous stance.
- The initial notices will set out how the parents have agreed to split the shared leave between them. The consultation envisages allowing employees to change this division, as well as the pattern of their leave, as they see fit, subject to the 8 week notice requirement. Employers will need to anticipate how they can resource cover at such short notice.
- The fact that both mothers and fathers will be eligible for shared parental leave seems to leave open the possibility of employers enhancing maternity leave benefits but not extending these to shared parental leave. This contrasts with the position for the current additional paternity leave entitlement (which will be abolished), where arguably fathers should receive the same benefits as mothers on additional maternity leave.
11. New publications
- EHRC's explanation of the recent ECtHR ruling in Eweida and others and practical guidance to employers about dealing with religion or belief issues
- Acas and CIPD joint guide: Mediation: an approach to resolving workplace issues
- DWP guide: Employing older workers: an employer's guide to today’s multi-generational workforce
- Information Commissioner's Office 'bring your own device' guidance on data protection issues for employers who permit employees to use their personal devices for work purposes
- DWP revised guidance on fit notes
- updates on developments in other jurisdictions are available on our blog