The year 2013 was a busy and, in many ways, significant in employment law, our regular legal contributor Claudia Gerrard writes in her first column of 2014. The year 2014 seems set to be the same, as a few key areas of the law will be changing shortly.
About the writer: Claudia Gerrard is a Legal Consultant working for Excello Law and she specialises in law relating to the security, leasing and parking sectors. Visit www.excellolaw.co.uk.
TUPE major amendments planned: January 31
It has been just over six months since we last reviewed TUPE 2006 and the impact changes would have within the security industry. TUPE is the shortened name for the Transfer of Undertaking (Protection of Employment) Regulations 2006 which govern employment rights when work is transferred to a new supplier. After consultation last year, there will be three main changes made to TUPE as we know it.
1. Service provision change: this covers the situation where work is outsourced for the first time, brought back in-house or where a new external service provider replaces an existing one. However, the law was far from certain and disputes often arose as to whether employees involved in work would transfer under TUPE. The change means that, in order for there to be a service provision change, the activities carried on after the transfer must be “fundamentally or essentially the same” as those carried on before it. It is unclear how this may be interpreted in practice, but the current method of assessing the percentage of time spent on activities may continue to apply.
2. Employee liability information: at one point it was proposed that this requirement should be abolished. TUPE requires the outgoing contractor to provide the new contractor with crucial employee data, such as length of employment, salary and benefits and whether there are any disputes with the employee. This obligation will now continue. However, the information will have to be given 28 days before the transfer, rather than the previous requirement of 14 days.
3. Change in location: this will now be expressly included within the scope of an economic, technical or organisational reason entailing changes in the workforce (“ETO”). Unless there is an ETO, transferring employees could claim unfair dismissal if they were made redundant due to a change in location. Now, where there is a change in location and a genuine place of work redundancy, the redundancy will no longer be automatically unfair.
It is far from clear how these and the other proposed changes will affect transfers in the future, so seek specialist legal advice in any cases of uncertainty.
Employment tribunal procedure planned changes: April 6
Three major changes are planned:
1. Abolition of discrimination questionnaires: in cases of dispute, these were often used by claimants to require an employer to provide information on the employer’s practices and procedures in connection with discrimination. The law currently specifies when the questionnaire can be served on an employer and how long an employer has to respond. Failure to respond, or evasive responses, would allow a tribunal to infer that the employer had acted in a discriminatory manner. The system was criticised as being unduly onerous on employers. From April, the process will be more informal and there will be no statutory obligation on an employer to respond at all. ACAS is due to provide guidance for employers on how to respond to informal requests for information on discrimination within an organisation.
2. Introduction of mandatory pre-claim conciliation: in line with introduction of fees for employment tribunal cases in summer 2013, this is aimed at reducing the number of tribunal claims. It will require a claimant to submit details of their dispute to ACAS before bringing a claim. ACAS will act as conciliators between the claimant and the employer. This should encourage settlement of claims and reduce the likelihood of the matter proceeding to a full blown tribunal hearing.
3. Financial penalties on losing employers: tribunals will be able to impose a financial penalty on employers who lose at tribunal. This will be equivalent to half of any financial award, with a minimum threshold of £100 and a maximum cap of £5,000. Where a non-financial award is made, the tribunal will be able to ascribe a monetary value. The penalty will be reduced by 50% if paid within 21 days. However, the levy of a financial penalty will be at the tribunal’s discretion and will not be automatic. This is aimed at reducing the number of employers who pursue claims in circumstances when it is clear that the claimant has a valid claim.
The key effect of these and other proposed changes is that employers and employees should exercise caution when handling disputes, to ensure that every effort is made to settle wherever possible.
Right to request flexible working extended: April 6
Flexible working falls into many categories, covering any working method which deviates from a standard work pattern. As such, it can include the usual practices of part-time working or flexitime. However, it can also cover annualised hours, homeworking, job sharing, shift working and staggered hours. Recently, requests for term-time working have become popular.
The Employment Act 2002 introduced the right for employees with children under the age of six to ask for flexible working patterns. It also covered employees with disabled children under the age of 18. This was increased to all children under 17 from April 2009. In April 2007, the right was extended to a carer of a spouse or partner. There is a statutory procedure to be followed when dealing with any requests for flexible working time. The requirement of being a parent or carer will now be removed. From April, all employees with the necessary period of service (currently 26 weeks) will be able to ask for flexible working arrangements. When dealing with requests, employers can use the company’s existing HR procedures as the statutory procedure will be abolished.
Requests must still be dealt with reasonably. So, when dealing with requests, employers must remain vigilant to the possibility of claims being made for discrimination or challenges where refusals are unreasonable.
Final thought: future changes
The changes above are only a fraction of the amendments planned for the course of 2014. There are also two consultations underway which could be relevant. The first is in connection with the practice of zero hours’ contracts. There is no real legal definition of such contracts but it generally covers contracts for casual working where an employer does not guarantee any work and only pays the employee for work carried out. The employee may or may not be required to carry out any work when requested by the employer. The second consultation covers “false self-employment” where self-employed status is used to avoid payment of any relevant tax and national insurance contributions. Either of these consultations might result in future legislation which could have a huge impact on the security industry.