The Government, tirelessly pressing on with yet more employment law reforms, is proposing a number of important amendments to its Enterprise and Regulatory Reform Bill (ERRB). It has also published the Children and Families Bill, which aims to fulfil a number of commitments it has made on children and families.
Key amendments to the current ERRB bill are:
- Protection of political opinions: The Government proposes to remove the unfair dismissal qualifying period where the reason (or principal reason) for dismissal “is, or relates to, the employee’s political opinions or affiliation”. This is required in response to the decision of Redfearn v United Kingdom in which the European Court of Human Rights decided that the Government needed to take measures to protect employees from dismissal on the grounds of their political opinions or affiliations, including extreme opinions that “offend, shock or disturb” (see our Newsflash of 13 December 2012, Political freedom or folly?). However, this will not create a new form of “automatically unfair” dismissal, as employers will still get the chance to show that such a dismissal was fair. Employers should be aware that the protection will cover a wide range of political views as well as the smaller political parties (including some with more extreme views). The protection is not limited to employees who hold mainstream political views or only those who are members of the three major political parties in the UK. The change is likely to take effect in late Spring/early Summer 2013.
- Whistle-blowing: The Government proposes to remove the ‘good faith’ requirement from whistle-blowing protection, replacing it with a power for Tribunals to reduce compensation by up to 25% where protected disclosures are not made in good faith. This accompanies another clause in ERRB requiring workers to show that any disclosure was in the “public interest”. So, employers lose the very useful defense of showing that a particular disclosure was not made in good faith and therefore is not protected, which is a considerable loss. On the other hand, any disclosure that is allowed through which was not made in good faith at least allows the possibility of the Tribunal penalising the claimant in terms of a reduction in compensation. The Government has also announced its intention to protect whistle-blowers from bullying or harassment by co-workers (in addition to the current protection of the same by employers). The Government states that detrimental acts of co-worker(s) towards a whistle-blower will be treated as being done by the employer, but an employer can defend itself on the basis that it took all reasonable steps to prevent such detrimental treatment.
- Financial penalties: There will also be changes to the new regime of Tribunals having the power to impose financial penalties where an employer has breached any of its worker’s rights: a Tribunal must have regard to an employer’s ability to pay and any penalty will be within the range of £100 to £5,000.
Family Friendly: Children and Families Bill
Published on 5 February 2013, this bill aims to fulfil a number of the Government’s commitments on family friendly issues. These include proposals on: shared parental leave and pay, extending the right to request flexible working to all employees, bringing adoption leave into line with maternity leave, giving fathers and partners of pregnant women the right to take unpaid leave to attend two antenatal appointments and rights for surrogate parents. The majority of changes are anticipated to take effect in 2015.