As so often happens, last year seems to have gone very quickly. It is hard to believe that the year after the Olympics happened has already passed. Much has happened in the past 12 months: a new descendant to the throne, a new Pope and even a new manager of Manchester United! With so many changes happening, even in the more traditional worlds of royalty, papacy and Red Devilry, it can be easy to lose track of what will happen next. But never fear; when it comes to employment law, we can make sure you know where you stand. Below is a summary of the expected changes in employment law due to come into force in 2014 and beyond:
31 January 2014
- Changes to the slightly complex TUPE regulations are due to come into force on this date. Although the changes are not as wide as first expected (the regulations will continue to apply to insourcing and outsourcing), there will be an increase to timescales for transferring employers to provide employee liability information to the transferee, as well as additional reasons which will provide a defence to automatic unfair dismissal when an employee is dismissed for a reason connected with a transfer.
6 April 2014
- The new tax year will see pre-claim Acas conciliation become mandatory. Claimants will need to submit details of their dispute to Acas before bringing a claim, at which point they will be offered conciliation for one month. If this is refused by either party, or is unsuccessful, the Claimant will be able to proceed with presenting their claim to the tribunal. If the parties enter into conciliation, the usual limitation period for presenting the claim to the tribunal will be extended by the period of conciliation.
- At the same time, the tribunals will be given new powers to impose a financial penalty on employers who lose at tribunal. This penalty may be anything between £100 and £5,000, and will usually be calculated as a percentage (up to 50%) of any financial award made to the employee, although the tribunal will be permitted to ascribe a monetary value to a non-financial award for this purpose. The penalty will be reduced by 50% if paid within 21 days. Such penalties will not be automatic and will be at the tribunal judge’s discretion; the conduct of the employer in defending the claim may therefore be taken into account.
- The right to request flexible working will be extended to all employees, not just those who qualify under the current rules as a parent or a carer. It should be noted that this is a right to request, and not necessarily to be granted, flexible working, but all requests will need to be dealt with reasonably. The statutory process currently in place will cease to apply.
- Following Dame Carol Black's review of workplace sickness absence, the government published its response to the proposals back in January 2013. As a result, a new health and work assessment and advisory service will be introduced in or around Spring 2014. This service is intended to provide a state-funded assessment by occupational health professionals for any employees who are off sick for four weeks or more, as well as support with case management for employees with complex needs in order to facilitate their return to work.
- The new system of shared parental leave and pay is planned to take effect in 2015. Eligible employees will be entitled to a maximum of 52 weeks' leave and 39 weeks' statutory pay upon the birth or adoption of a child, which can be shared between the parents (although, in the case of births, mothers will be expected to take the first two weeks as statutory leave). This means that men may be just as likely to take leave as women, although due to historic and ongoing pay gap issues the uptake of such leave by men is expected to be relatively low. The government has not yet determined how the new system of shared parental leave and pay will work, and consultations are ongoing.
There will of course be unexpected bumps along the road, especially with various cases due to be determined regarding surrogacy and maternity rights, employment status of partners and, importantly, the judicial review of the introduction of fees in the Employment Tribunals. Employers should also be aware of their staging date for the ongoing introduction of the auto-enrolment pension requirements.
As always, you can keep track of the latest developments throughout 2014 on our Twitter page, and the most important changes will of course make it into our monthly updates.
Other Important Changes This Month
- At some point in 2014, yet to be determined, regulations will be introduced giving tribunals the power to order an employer found guilty of sex discrimination to carry out an equal pay audit.
- Zero hours contracts came under the microscope in 2013, as claims of abuse of such agreements against high profile employers became commonplace. The government launched a consultation on zero hours contracts in December 2013, which will close on 13 March 2014. This may lead to legislation banning exclusivity clauses in such contracts and creating government guidance or a code of practice on the use of zero hours contracts.
The Court of Appeal has found that an employment tribunal erred in its approach to the question of whether a Christian employee had suffered indirect discrimination on grounds of religious belief by being required to work on Sundays.
The Claimant, a care officer in a home for children with disabilities or complex care needs, was a Christian woman holding a sabbatarian belief employed by the London Borough of Merton. Merton implemented a rota-system across the whole week, and Mrs Mba's employment contract stated that she could be required to work on Sundays. Despite this, she was allowed every Sunday off for two years under an informal arrangement. However, after it became increasingly difficult for Merton to continue this arrangement, it started to require her to work on Sundays.
The Claimant refused to work on Sundays and brought a claim for religious discrimination. In refusing her appeal on the basis that she had entered her contract knowing that Sunday work may be required and it had genuinely become necessary, the court criticised the original decision, which stated that the belief that Sunday should be a day of rest was not a "core component" of the Christian faith. The tribunal should have instead considered the impact on Christians holding the same sabbatarian belief as the Claimant.
Mba v Mayor and Burgesses of the LB of Merton
 EWCA Civ 1562