UK: Key employment law changes come into force

A range of employment law changes took effect in the United Kingdom in spring and early summer 2014.  The new provisions include the introduction of early conciliation for employment tribunal claims, the abolition of statutory discrimination questionnaires, increases in statutory rates of maternity, paternity and adoption pay, and the extension of the right to request flexible working arrangements. This article outlines the main changes introduced and the dates on which they came into force.

Early conciliation

From April 2014, as a result of the Enterprise and Regulatory Reform Act 2013, ‘early conciliation’ has been offered by the Advisory, Conciliation and Arbitration Service (Acas) in employment tribunal claims. For tribunal claims lodged on or after 6 May 2014, claimants are obliged to have made an early conciliation notification to Acas before lodging the claim.

They will be offered early conciliation for a month, potentially extendable by up to two weeks where there is a reasonable chance of reaching a settlement. Where the Acas conciliation officer concludes that a settlement is not possible, or where the prescribed period ends without a settlement being reached, claimants will be issued with a certificate permitting them to issue tribunal proceedings. The legislation extends the existing limitation periods for issuing a tribunal claim to allow early conciliation to take place.

Discrimination questionnaires

The Enterprise and Regulatory Reform Act repealed section 138 of the Equality Act 2010, which enabled employees or former employees considering bringing a discrimination claim to send their employer a list of questions to answer. The abolition of this procedure took effect on 6 April. Employees are still able to ask questions, and the answers, or lack of them, can be taken into account by tribunals. Acas has published guidance on raising and responding to questions relating to discrimination and the Equality Act.

Increases in tribunal compensation limits

From 6 April, the Employment Rights (Increase of Limits) Order 2014 increased the limits applying to various tribunal awards and other amounts payable under employment legislation in line with inflation. The maximum amount of a week's pay for the purpose of calculating a redundancy payment and the basic and additional award of compensation for unfair dismissal increased to GBP 464 (€586 as at 29 July 2014). The maximum compensatory award for unfair dismissal is now GBP 76,574 (€96,626) and the maximum basic award or statutory redundancy payment is GBP 13,920 (€17,565).

Tribunal penalties

From 6 April, under the Enterprise and Regulatory Reform Act, tribunals have the power to impose a financial penalty on employers whose breach of employment rights involves aggravating features such as unreasonable behaviour, negligence or malice. If the tribunal makes an award of compensation, the amount of the penalty will be 50% of the award. The penalty is subject to a minimum threshold of GBP 100 (€126) and an upper ceiling of GBP 5,000 (€6,309). Employers will qualify for a reduction of 50% if they pay the penalty within 21 days.

Increase in statutory payments

From 6 April, the Welfare Benefits Up-rating Order 2014 increased the rate of statutory maternity, paternity and adoption pay from GBP 136.78 (€172.61) to GBP 138.18 (€174.38) per week.

Blacklisting of trade unionists

In Northern Ireland, the Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations (Northern Ireland) 2014 came into force on 6 April. The regulations prohibit the compilation, use, sale and supply of blacklists containing details of trade union members and activists, where the purpose of the list is to discriminate against workers on grounds of trade union membership or activities, and grant rights to individuals to complain to an industrial tribunal where the regulations are breached. This brings Northern Ireland into line with the rest of the UK where similar legislation was introduced in March 2010 (UK1210019I).

Flexible working

Under the Children and Families Act 2014, all employees who have worked for their employer for 26 weeks or more will have the right to ask if they can work flexibly (UK1402039I). The right to request flexible working is no longer confined to parents or carers, as was the case previously. Employers will no longer have to follow a prescribed statutory procedure and will be able to use their own HR procedures instead, although they will have to deal with requests reasonably and respond within three months.

These changes were intended to be made on 6 April but the final legislative stages of the Children and Families Act were delayed. The new provisions took effect on 30 June 2014 following the adoption of the Flexible Working Regulations 2014.

Acas has drawn up a new code of practice and guidance on the issue of flexible working.

Duty to inform and consult over transfers of undertakings

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 provide that a micro-business, defined as an employer with fewer than 10 employees, may comply with its duty to inform and consult under the Transfer of Undertakings (Protection of Employment) Regulations 2006 by informing and consulting directly with affected employees. This applies where there are no existing employee representatives and the employer has not invited any of the affected employees to elect representatives. The implementation date for this change was 31 July 2014.

Commentary

These changes continue the established UK pattern of frequent incremental revisions to the employment law framework. Further new measures, concerning equal pay audits and shared parental leave among other issues, are scheduled to come into effect in October 2014.

The provisions outlined above represent something of a mixed bag. The predominant aims of the present coalition government remain to alleviate the perceived adverse impact of employment legislation on employers through measures to counteract the proliferation of employment tribunal cases (most recently though early conciliation) and selective deregulation. Characteristically, the coalition’s extension of the right to request flexible working has taken the form of minimal regulation, designed to ‘nudge’ employers towards more flexible working patterns, and incorporates less prescriptive procedures for employers to follow than the previous legislation on this issue.

Employer reaction to the new flexible working provisions has been mixed (UK1212039I), but generally employers’ groups have been far more comfortable than trade unions with the overall direction of employment law reform under the present government.

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