Time(table) for change

It continues to be a busy year for HR/employment law changes and, in order to keep us up to date, the Government has published Employment law 2013: progress on reform, available here. This reviews the steps that have been taken since the start of its employment law review and sets out a timetable for the next phase of reforms.

To keep you up to speed with these reforms, we set out below the new timetable for the most significant changes this year, including the usual annual changes, below:

March 2013

Parental leave: From 8 March 2013 unpaid parental leave entitlement has increased from 13 to 18 weeks in total per child. However, it remains limited to a maximum of four weeks usage per year.

April 2013

Statutory maternity/paternity/adoption pay and sick pay increases:

• 6 April – the weekly rate of SSP will rise from £85.85 to £86.70. (According to the 2012 Autumn Budget Statement, these rates will increase by 1% a year for three years from April 2013)
• 7 April – SMP, SPP, SAP and maternity allowance all increase from £135.45 to £136.78
• The weekly earnings threshold for both of the above payments rises from £107 to £109.

Collective redundancy: Implementation of reforms to collective redundancy from 6 April:

The collective redundancy rules will change as follows:

• 100 or more redundancies (or dismissals of those refusing to accept changed terms of employment) proposed: consultation will need to begin no later than 45 days before the first dismissal takes effect (rather than the previous 90 days).
• When fixed-term contracts expire at the end of their agreed term they will be excluded from collective redundancy consultation obligations, unless the worker is being made redundant before the end of their fixed term).
• ACAS will produce non-statutory guidance to address the following:
  • when consultation should start;
  • who the consultation should cover;
  • who should be consulted;
  • what should be discussed;
  • how the consultation should be conducted;
  • when consultation can be considered complete; and
  • the interpretation of ‘one establishment’.

National Minimum Wage: The Government will produce a single set of consolidated NMW regulations, bringing together the existing 17 separate sets of regulations, by the end of April 2013.

Summer 2013

Protection of whistle-blowers: The law will be amended to mean that disclosures are only protected if they can reasonably be said to be ‘in the public interest’. A worker will therefore no longer be able to bring a whistleblowing case relating to a breach of his/her own contract (unless this was genuinely in the public interest). Another change is that there will no longer be a requirement that the disclosure has been made in good faith. If the Tribunal decides it was made in bad faith, that will no longer prevent it from being treated as a valid protected disclosure, but any compensation awarded to the Claimant can be cut by up to 25%.

New Employment Tribunals Rules of Procedure: In November 2011 the Government asked Mr Justice Underhill, then President of the Employment Appeal Tribunal, to carry out a review of the rules of Employment Tribunals procedure to make them simpler and ensure that management of claims is flexible, efficient, proportionate and consistent. Revised draft rules were subsequently published in July 2012. The Government consulted on these. On 14 March 2013 it published its response to the consultation. Although the final rules will not be published until May 2013, it seems that the majority of Mr Justice Underhill’s recommendations have been accepted, including:

• An initial sift stage at which every case will be reviewed on paper by an Employment Judge to consider prospects and case management.
• A rule to permit Tribunals to limit oral witness evidence and representatives’ submissions at hearings.
• Removal of the £20,000 cap on costs that can be awarded by a Tribunal.
• A more flexible regime on holding hearings in private, and making restricted reporting and anonymity orders.
• Non-prescriptive guidance from the Presidents of Employment Tribunals in England and Wales and Scotland to supplement the new rules and aid consistency of approach.
• Making it easier to withdraw and dismiss claims.
• “Preliminary hearings” to combine separate pre-hearing reviews (PHRs) and case management discussions (CMDs).

Employment Tribunal fees: From August 2013 anyone submitting a claim to a Tribunal, or an appeal to the EAT, will need to pay an initial issue fee, followed by a subsequent hearing fee when his/her case is listed for a hearing date. In referring to the introduction of fees, the Government’s report notes the need to make people better informed about possible outcomes at Tribunals. It gives the example of providing details of average awards on ET1 and ET3 forms but does not say whether it is the Government’s intention to include such information on the new forms that are being designed to accompany the new Tribunal rules.

Compensatory award cap: The unfair dismissal compensatory award will be limited to the lower of the current statutory cap (£74,200 from 1 February) or the claimant’s annual net salary.

Autumn 2013

Reform of TUPE 2006: In January 2013, the Government issued a consultation on proposed changes to TUPE 2006. The consultation closes on 11 April 2013. The changes are expected to be implemented from October 2013.

Next year…

The Government’s report also includes timetable updates on next year’s planned reforms. As we’ve previously let you know about these in previous newsletters, we won’t bombard you with this now – we’ll remind you of the timetable nearer the time.