Legal round-up so far...

Tags: TUPE, Employment Law Reforms, Flexible Working, Discrimination

You will all agree with me when I say that last year was a busy year for employment law, so it will not come as any surprise that we will see much of the same in 2014! So what’s on the agenda (this side of the year)?

TUPE

On 31 January the revised TUPE regulations came into force. Here’s a summary of the changes:

  • Collectively negotiated provisions will not bind a transferee (NewCo) if they are agreed and come into force after the date of the transfer, and NewCo was not a party to the agreement.
  • A dismissal will only be automatically unfair if it is “by reason of the transfer” unless there is an Economical, Technical and Organisation (ETO) reason entailing changes in the workforce. The provisions relating to a reason connected to the transfer have been removed.
  • An ETO reason entailing change in the workforce is now defined to include a change in location of the workforce.
  • A variation of contract will not be void if the reason for it is an ETO reason, or if the reason for the variation is the transfer provided that the terms of the contract permit the employer to make the variation.
  • Where NewCo is proposing to make 20 or more employees redundant at one establishment within a period of 90 days or less, they will be able to consult about the proposed dismissals before the transfer takes place, provided the Transferor (OldCo) has agreed to the consultation.
  • OldCo will have to provide NewCo with the employee liability information 28 days ahead of a transfer (increased from 14 days). This comes into force on 1 May 2014.
  • Microbusinesses (businesses with fewer than 10 employees) will be able to directly inform and consult with affected employees in cases where there are no existing appropriate representatives. This will apply to transfers taking place on or after 31 July 2014.

Abolition of discrimination questionnaires

Currently employees or job applicants who feel that they have been discriminated against can serve the offending company a questionnaire requesting further information. The company is then under a statutory duty to respond within 8 weeks.

The current statutory questionnaire procedure will be abolished from 6 April 2014 and will be replaced with a new informal approach set out in the non-statutory ACAS guide.

Introduction of financial penalties

From 6 April 2014 the tribunals will be granted a discretionary power to impose financial penalties on employers who are unsuccessful at tribunal. The penalty may be ordered where an employer is found to have breached a claimant’s employment rights and the tribunal considers that, in the circumstances, the employer’s behaviour in committing the breach had one or more ‘aggravating factors’. 

Where compensation is awarded, the penalty must be set at 50% of that amount, subject to a minimum of £100 and a maximum of £5,000. Similar to traffic offence fines if the employer pays within 21 days, the sum will be reduced by 50%.

Extension of the right to flexible working

Currently only employees who have children under the age of 17 (or 18 if the child is disabled) or who are carers have the right to request flexible working, this is set to change from 6 April 2014 where this right will be extended to all employees.

The existing 26-week qualifying period of continuous employment will be retained and employees will still only be allowed to make one request in any 12 month period.

The current statutory procedure will be replaced with a duty on employers to deal with requests in a reasonable manner. ACAS will produce a Code of Practice to help businesses manage the new extended rights.

Whew! And that’s it so far! As always if you have any questions in respect of any of the above changes please do not hesitate to contact me on 0113 350 4030 or alternatively on samira.cakali@scesolicitors.co.uk. 

3 Comments

  • Helen Collier said

    Lot's going on. Don't like the sound of the changes around the discrimination questionnaires losing the statutory duty status. An erosion of protection?

    The extension of the right to flexible working is interesting. I'm not sure how that makes much of a difference to anything.

  • Samira Cakali said

    Thanks Michelle and Helen.

    Michelle - you may not believe it but the new changes have been implemented by the Government to encourage companies to hire more people! Let's hope it has the desired effect.

    Helen - there is still going to be an informal process employees can use and no doubt inferences will be drawn by tribunals should employers chose not to respond.

    I'm not sure whether the new extension for flexible working will make a huge difference, however it will give employees without children and caring responsibilities the right to request flexible working.

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