1. Family-friendly leave and flexible work: policies will need updating to reflect new rights

Employers will need to update their flexible work and family-related leave policies over the next few months, following the Children and Families Act 2014 receiving Royal Assent on 13 March 2014. Changes include:

  • From 30 June 2014, the right to request flexible working will be extended to all employees with 26 weeks' service. The current statutory procedure for dealing with flexible working requests will be replaced with a duty to consider requests in a reasonable manner, supplemented by a statutory code of practice from Acas (discussed here).
  • From 1 October 2014, fathers and partners will be able to take time off to attend up to two antenatal appointments.
  • In respect of babies due or children placed for adoption on or after 5 April 2015, mothers, fathers or adopters will be able to opt to take shared parental leave within the first year after the birth or adoption placement. Adoption pay and leave entitlements will also be brought into line with those of birth parents. Employers will need to reflect the new shared parental leave rights in their policies, once final regulations setting out the detail have been published.  See here for further details of the new regime.

2. Surrogacy: no EU right to paid leave for commissioning mother

For the time being, employers are not required to provide paid leave rights to mothers who have a child using a surrogate, in contrast with those who adopt.

Last year two ECJ Advocate General opinions reached opposite conclusions on the issue of whether an intended mother who has a baby via surrogacy should be entitled to maternity leave (see here). The ECJ has now ruled that she is not entitled to paid leave under EU law, whether or not she breastfeeds the baby. There is no EU law specifically covering rights on parenthood through surrogacy and the claim could not be crowbarred into existing legislation: the Pregnancy Workers Directive only protects women who have actually become pregnant, there is no sex discrimination, and the claimant's infertility did not amount to a disability. (Z v A Government Department and the Board of Management of a Community School ;C-D v S-T, ECJ)

UK employees will therefore have to wait until the Government exercises its power in the Children and Families Act 2014 to extend leave rights to parents through surrogacy, expected to be in 2015.

3. Evidence at employment tribunals: covert recordings admissible

Employers should ensure managers holding or attending disciplinary or grievance hearings with an employee are aware of the risk of making inappropriate comments whether publicly in the hearing or privately during breaks, given the possibility of comments being covertly recorded by the employee on mobiles or other devices and admitted in evidence by a tribunal.

In Punjab National Bank v Gosain, the EAT upheld a tribunal decision admitting in evidence covert recordings of private comments made by members of a disciplinary and grievance panel during a break in the proceedings. The comments were not a part of the panel's deliberations in relation to the matters under consideration and therefore were not inadmissible. 

Although it would not prevent the tribunal exercising its discretion to admit covert recordings in evidence, it is prudent for employers to expressly prohibit the recording of proceedings without consent in their disciplinary and grievance policies; at the very least it may discourage such conduct.

4. TUPE/collective redundancies: calculation of protective award for breach of consultation duties

A recent EAT ruling has clarified that a tribunal should start with the maximum potential award of 90 days' pay per affected employee for breach of information and consultation obligations on a TUPE transfer or collective redundancies only if no information or consultation has been carried out. Where some information or consultation has been done, the tribunal should decide a lower appropriate starting point before taking into account mitigating factors relevant to the breach (such as the importance of the relevant breach in the context, how easy it would have been to comply, and whether the employer was aware of its breach).

Although this represents a change of emphasis, in practice the outcome may be little different given the tribunal's wide discretion to make an award which is just and equitable in the circumstances. (London Borough of Barnet v Unison, EAT)

5. Reminder: changes to employment law in force 6 April 2014

Employers should bear in mind the following changes which apply from 6 April 2014 (click on the links for summaries of the changes in previous ebulletins):

  • Annual increase to tribunal compensation limits and statutory benefit rates.  
  • Introduction of tribunal discretion to order financial penalties for losing employers where aggravated breach.   
  • Increase to employment tribunal fees for some claims: the Government has reclassified certain claims from type A to type B (attracting the higher tribunal fee levels). Claims for equal pay, sex equality in pension schemes, failure to inform or consult under TUPE, failure to allow compensatory rest under the Working Time Regulations 1998 and breach of the right to request time off for training will now all require an issue fee of £250 and hearing fee of £950.   
  • Acas early conciliation regime is available under transitional provisions, although claimants are not obliged to submit an EC form to Acas for claims prior to 6 May. Acas guidance on the new procedure is available here.  
  • Abolition of statutory discrimination questionnaire forms.  Employers should ensure managers are aware of this change and that they should still involve HR if they receive questions pertinent to a possible discrimination claim from an employee or ex-employee, given that a tribunal may still take an employer's response into account generally.  
  • Abolition of employers' recoupment of statutory sick pay, along with abolition of the obligation to keep SSP records for 3 years.  
  • Change to pension rights on a TUPE transfer to reflect auto enrolment.  
  • MPs have been added to the list of prescribed persons to which whistleblowing disclosures can be made (provided the conditions for disclosure to other prescribed persons apply).  
  • The 2014 Budget included measures to address the artificial use of dual contracts for non-domciles and to ensure appropriate tax and NIC payments where employment intermediaries are used.  More details of the Budget are available here.

6. National minimum wage: updated enforcement policy and new rates

BIS has published its updated policy on enforcement of the national minimum wage, which includes the revised scheme for naming and shaming employers issued with an underpayment notice (even where the breach is small and inadvertent), and the new system of increased financial penalties of up to £20,000 for the most serious cases. Employers may wish to review their payment of atypical workers such as interns, apprentices and directors given the potential to be named even for accidental underpayment.

The Government has also announced changes to the national minimum wage rates with effect from 1 October 2014. The hourly rate for workers aged 21 and over will increase to £6.50, that for workers aged 18-20 will be £5.13, for workers aged 16 and 17 £3.79 and for apprentices £2.73. The accommodation offset will rise to £5.08 a day.

7. New publications: subject access requests, tribunal claim statistics, age discrimination in provision of services

  • The Information Commissioner's Office has updated its Code of Practice on handling subject access requests, available here
  • The Ministry of Justice has published tribunal statistics for October to December 2013 showing a 79% reduction in claims compared with the same period in 2012, and a 64% reduction in claims brought by individuals. Many commentators are attributing the decline to the introduction of tribunal fees from July 2013. The statistics will be used to support calls for the Government to scrap or substantially amend the fee system and may assist Unison in its judicial review appeal against the fee regime (summarised here) – Unison recently confirmed that it will apply to the Court of Appeal for permission to appeal.   
  • The Equality and Human Rights Commission has launched a consultation (closing 2 May) on draft guidance covering legislation banning age discrimination against people using public or private services.