The Department for Business, Innovation & Skills (BIS) and Department for Work and Pensions (DWP) has recently made several announcements concerning changes to employment law with the aim of reducing the number of workplace disputes that end up in the tribunal.
BIS published its response to the ‘Ending the Employment Relationship’ consultation
The most significant proposals are to:
- introduce a 12 month pay cap on the unfair dismissal compensatory award. The current overall cap (£72,300) will remain in place if twelve months’ pay is higher
- provide that settlement offers will be inadmissible as evidence to an employment tribunal (ET) in any subsequent unfair dismissal claim subject to the following:
- employee’s existing safeguards will continue (including the requirement to receive independent legal advice)
- both parties will be protected against any ‘improper’ behaviour by the other as in these circumstances, the rule on inadmissibility of the settlement offer, will not apply. So an employee who resigned rather than accept a settlement offer would be unable to use the offer in an unfair dismissal claim, unless they could show the employer’s behaviour to be improper. The idea is that this will reduce the likelihood that responsible employers will face constructive unfair dismissal claims as a result of offering settlement
- it will not apply to contractual disputes such as wrongful dismissal. So the fact that settlement was offered would remain admissible in the wrongful dismissal part of any claim ie a claim for payment of the employee’s notice period
- a statutory code of practice will accompany the legislation. This will include an explanation as to what a ‘reasonable period of time’ should be for an employee to consider an offer. Parties need to be given sufficient time to consider an offer, however, where both parties agree this should not prevent a prompt resolution
- the government will provide guidance on considerations that both employer and employee might consider when negotiating a financial settlement
- a template letter will be included in the statutory code (which Acas will consult on separately) and a template agreement will be made available as part of accompanying guidance to the statutory code. Templates use will be entirely voluntary.
These proposals are contained in the Enterprise and Regulatory Reform Bill. The government expects the Bill to receive Royal Assent in spring 2013. A draft statutory code will be published by Acas for public consultation later this year. Once the statutory code comes in force, offers of settlement and related negotiations will be subject to the inadmissibility provision of the Bill and can be considered by ETs.
BIS issued a consultation on the proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)
This is in response to the ‘call for evidence’ which finished last year. There are significant proposed changes to include:
- repealing the ‘service provision change’ provisions from the definition of a transfer. Businesses have expresses concern that TUPE ‘gold plates’ the Directive. The government accepted evidence that the provisions may have anti-competitive effects with transferors using it as a means of keeping those employees they want to keep and losing those they do not. There will be a lead-in period before any repeal
- changing the wording of the restrictions on varying contracts or dismissing in relation to a TUPE transfer to bring the restrictions in line with the minimum requirement of the EU Acquired Rights Directive (2001/23). Changes by reason of the transfer itself will still be prohibited, but the parties can agree any change they would have agreed had there not been a transfer, with dismissals in such circumstances not necessarily being automatically unfair. Parties could also agree a variation for an ‘economic, technical or organisational’ (ETO) reason. The definition of ETO reason ‘entailing changes in the workplace’ would be changed to include changes in workforce location. Further, the right to resign in response to a ‘material detriment’ consequent on the transfer and be treated as dismissed under regulation 4(9), would be narrowed.
BIS issued a consultation on the detail of ‘early conciliation’ (EC) via Acas
This includes how the process will operate in practice and on a draft set of rules and procedures. It follows the government’s announcement in November 2011 of its intention to introduce EC in the first part of the conciliation process, namely that prospective claimants will be required to send the details of their claim to Acas before they are able to lodge the claim in an ET. In implementing the EC process, the proposals, on which views are sought, include:
- the claimant completing and submitting a basic form to Acas. This should not require the claimant to indicate the nature of their dispute
- the only jurisdictions where the EC requirement should not apply are those where there is a very short period for making a claim, such as an application for interim relief, or where settlement would not be appropriate eg an appeal against an improvement or prohibition notice
- some prospective claimants should be exempt from the requirement to make an EC request eg those involved in multiple claims
- prospective claimants will remain responsible for complying with the time limit for presenting their claim to an ET (although Acas will advise the parties of the limitation period)
- when a duly completed EC form is received by Acas the limitation period will be suspended so that conciliation can take place
- the first stage contact (the day following receipt of the EC form) will involve an EC Support Officer (not an experienced conciliation officer) telephoning the prospective claimant to obtain information and explain the EC process. This is to save costs
- for prospective claimants who are difficult to contact, it is suggested that Acas make ‘reasonable attempts’ to contact. However this is not an indefinite requirement, so if Acas remains unable to contact the prospective claimant, a certificate should be issued to confirm that the claimant has complied with their obligation to contact Acas. Where the prospective claimant decides that a claim cannot be brought following discussion with the EC Support Officer, a certificate will be issued
- the second stage of contact would involve contact with a conciliation officer, within 2 working days of receipt of the form. The conciliator will contact the prospective respondent within 2 working days, but only if the prospective claimant agrees for the prospective respondent to be contacted
- if the respondent declines EC a certificate will be issued to the prospective claimant
- where both parties agree, Acas will have up to 1 month to conciliate, with the powers to cease conciliation early where there is no reasonable prospect of settlement and or extend by 2 weeks where settlement is likely
- if EC is successful, a legally binding settlement would be signed by both parties and a certificate will be issued to the prospective claimant. The certificate will state the date the EC request was received, the date the certificate was issued and the how it was issued, ie whether electronically or by post
- prospective respondents may also request EC, in which circumstance there will be no ‘stop the clock’ provision and no specified period of time in which conciliation must take place. If the prospective claimant declines EC, a certificate will be issued
- if EC is unsuccessful, then the prospective claimant may bring a claim in the ET. The claimant must quote the EC reference number on the Form ET1, otherwise the claim will be dismissed.
BIS issued a consultation on reforming the legislation (Employment Agencies Act 1973 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Conduct Regulations)) regulating employment agencies
This is as a result of the Red Tape Challenge and the government’s aim that the recruitment sector should be regulated by a regulatory framework which is as simple as possible. The government proposes (among other things), that new legislation should ensure that:
- employment business cannot charge for additional services such as accommodation, training or CV writing. They are already prevented from charging fees to work-seekers. Views are being sought however, on whether fees can be charged in certain circumstances (by agencies outside the entertainment and modelling industry)
- clarity is provided on who is responsible for paying temporary workers for the work they have carried out
- that movement between jobs by workers is not restricted by recruitment firms’ contracts and any temp-to-permanent transfer fees are reasonable, and
- work-seekers are instilled with confidence and can assert their rights.
Views are sought on whether:
- enforcement of the legislation will be necessary
- to retain Prohibition Orders (prohibiting individuals from running/being involving in the running of an employment agency or business for up to 10 years)
- individuals should be able to enforce their own rights at an ET.
The consultation closes on 11 April 2013. The government’s response and the next steps to be taken will then be published within 12 weeks.
DWP published its delayed response to Dame Carol Black’s Health and work: an independent review of sickness absence
It has largely accepted the recommendations in the review, stating that it will (among other things):
- establish a new Health & Work Advisory and Assessment service to provide a state-funded bespoke, independent assessment by occupational health professionals for employees who have been on sick leave for 4 weeks. This will ‘signpost’ appropriate interventions, provide advice to both employers and employees on surmounting the hurdles to a return to work, and provide case management for employees with complex needs who require ongoing support to get them back to work
- in the first quarter of 2013, publish revised ‘fit note’ guidance for GPs, employers and employees. This will highlight the need to assess an employee’s health in relation to work in general and not to restrict this to just one role in particular
- consider in the 2013 budget, whether expenditure by employers aimed at keeping sick employees in work or speeding up their return to work such as medical treatments or vocational rehabilitation, should attract tax relief
- abolish the Percentage Threshold Scheme. This compensates mainly smaller employers for very high rates of sickness absence in their organisations, although it reduces incentives to manage absence
- abolish statutory sick pay record-keeping obligations so that employers can keep records in the manner best suited to them.
Turbervilles’ HR & Employment Department
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