Agency workers

1 October 2011

New law now in force

Right to equal treatment

The Agency Workers Regulations 2010 came into force at the beginning of October 2011, providing agency workers with the right to equal treatment over basic employment and working conditions (working time, overtime, holidays, public holidays and pay) compared with their directly recruited counterparts after 12 weeks in a job. Agency workers started to acquire these rights from 24 December 2011.

Agency Workers Regulations 2010

Agency Workers Regulations Guidance – May 2011

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Bankers’ bonuses

1 January 2012

New law now in force

Changes to FSA remuneration code

The Financial Services Authority (FSA) has amended its remuneration code with effect from 1 January 2012. It has widened the circumstances in which guaranteed or discretionary bonuses are void if they are provided in breach of the code to certain staff in the financial services industry (banks, stockbrokers, hedge funds and so on)

FSA renumeration code

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Data Protection

2013/2014

Proposal to reform EU Data Protection directive

In January 2012, the European Commission published proposals for a comprehensive reform of the 1995 EU Data Protection Directive (95/46/EC). The main aim is to remove inconsistencies created by the 27 EU member states having implemented the directive in different ways, creating burdens for businesses. The proposals also attempt to reflect the rapid advances in technology since the directive first came into effect.

These proposals will need to be approved by the EU member states and ratified by the European Parliament. This process may take two years, possibly more, and the proposals could be watered down or rejected during that time.

European Commission press notice – January 2012

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Equality

2012

Mandatory equal pay audits to be introduced



In May 2011, the Government published proposals to introduce mandatory equal pay audits for employers who are found by an employment tribunal to have discriminated on grounds of sex in relation to pay.

Tribunals would be obliged to order audits unless the employer could show at least one of the following: it had been audited in the past three years; it had other appropriate means of ensuring non-discriminatory pay; or it would not be productive to order an audit in the circumstances.

Consultation on modern workplaces (BIS) – May 2011 

2013

Reform of Equality Act 2010 and Equality and Human Rights Commission (EHRC)

In May 2012, the government announced various proposed changes to the Equality Act 2010 aimed at reducing ‘bureaucracy’ in equality law. It is consulting on repealing provisions in the Act that make employers liable for harassment by third parties. There is also a separate consultation concerning the repeal of employment tribunals’ power to make wider recommendations on an employer’s policies and procedures following a claim, and the statutory questionnaire procedure in discrimination cases.

Among other things, the government is also reviewing the operation of the public sector equality duty, which requires public bodies to consider the impact of their decisions on those who share a relevant protected characteristic such as sex or race.

The government is planning wide-ranging reforms to the EHRC, including scrapping some of its powers and duties so that it can focus on its core functions.

Equality Act 2010 consultation on third-party harassment – May 2012

Equality Act 2010 consultation on repeal of two enforcement provisions – May 2012

Response to consultation on reform of EHRC – May 2012

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Flexible working

2012

Proposed extension of right to request flexible working

Government plans to extend the right to request flexible working to all employees were contained in a consultation document published by BIS in May 2011. The right is currently available only to parents of children under 17 (and disabled children under 18) and certain carers.


Under the proposals, the 26-week qualifying period will remain, but employers will be encouraged to consider flexible working opportunities at the point of recruitment. Requests would be considered by using the current statutory process, but there would be a new duty to consider requests “reasonably” alongside a code of practice providing guidance for employers.


Consultation on these proposals closed in August 2011 and the government’s response is expected shortly.

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Parental rights

2015

Flexible parental leave scheme under development

In May 2011, the government set out plans in a consultation document to introduce a new system of flexible, shared parental leave from 2015. The proposals would build on the previous Labour administration’s legislation on additional paternity leave, which was implemented in April 2011. The consultation closed in August 2011 and the Government’s proposals are expected shortly.

The Queen’s Speech to parliament on 9 May 2012 confirmed that this reform will be included in a forthcoming Children and Families Bill.

Consultation on modern workplaces (BIS) – May 2011 

Queen’s Speech May 2012 briefing notes

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Pensions

1 October 2012

New auto-enrolment requirement

Starting from October 2012, employers in Great Britain will be required to enrol eligible workers automatically into a pension scheme. The new duties will be implemented over a four-year period, with larger employers being affected first.

Directgov information

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Statutory pay

April 2012

New law now in force

Rate increases

Rates of statutory maternity pay, adoption pay and paternity pay will rise from £128.73 to £135.45 per week from April 2012. Statutory sick pay will increase from £81.60 to £85.85 per week.

Parliamentary written statement – December 2011

October 2012

New national minimum wage rates

From 1 October 2012, the standard rate for the national minimum wage (workers aged 21 and over) will rise from £6.03 to £6.19. The development rate (workers aged 18-20 and those aged 21 and over doing accredited training in the first six months of employment) will remain at £4.98 and the young workers rate (those above compulsory school age but under 18 and not apprenticed) will stay unchanged at £3.68. The apprenticeship rate will rise from £2.60 to £2.65.

Directgov information on national minimum wage

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Termination of employment

6 April 2012

New law now in force

Unfair dismissal qualifying period increase

From April 2012, the qualifying period of employment before a claimant can claim unfair dismissal will increase from one to two years. This will only apply to employees who start a new job on or after 6 April: employees already in employment on that date will retain the current one-year qualifying period.

BIS press release – October 2011

2012/2013

Call for evidence on ‘no fault’ dismissals for small firms and simpler dismissal rules

The government is seeking views on a proposal to introduce compensated ‘no-fault’ dismissals for micro-firms with fewer than 10 employees, and on ways to slim down existing dismissal procedures for all employers. The deadline for responses is 8 June 2012.

Call for evidence: dealing with dismissal and compensated no-fault dismissal – March 2012

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Tribunals 

Changes to tribunal procedure

New law now in force

6 April 2012

From April 2012, various changes were made to tribunal procedure. Witness statements are now not read out but taken as read by the tribunal, judges sit alone without lay members for some unfair dismissal cases and expenses have been withdrawn for witnesses.

In addition, the amount of costs a tribunal can award (without referring the case to the county court) has increased from £10,000 to £20,000. The amount of the deposit that tribunals can order a claimant to pay to proceed with a claim has risen from £500 to £1,000

BIS press release – November 2011

Government response to Resolving Workplace Rights consultation – November 2011

2012/2013

Simplification of compromise agreements

The government is proposing to consult during 2012 on the introduction of measures to simplify compromise agreements, which are likely to be renamed ‘settlement agreements’. These changes are likely to be included in the forthcoming Enterprise and Regulatory Reform Bill, announced in the Queen’s Speech to parliament on 9 May 2012.

BIS press release – November 2011

Government response to Resolving Workplace Rights consultation – November 2011 

Queen’s Speech May 2012 briefing notes

2012/2013

Review of tribunal rules of procedure

The government has commissioned Mr Justice Underhill to conduct a thorough review of the rules of procedure governing employment tribunal proceedings. The review, which was due to be completed by the end of April 2012, will consider whether the rules have become over complex.

Fundamental review of ERT rules – terms of reference

2013/2014

Pre-tribunal conciliation by Acas

The government is intending to introduce a scheme whereby employment disputes will have to go to Acas for mandatory pre-claim conciliation before they can go to an employment tribunal. This reform is likely to be included in the forthcoming Enterprise and Regulatory Reform Bill, announced in the Queen’s Speech to parliament on 9 May 2012.

BIS press release – November 2011

Government response to Resolving Workplace Rights consultation – November 2011

Queen’s Speech May 2012 briefing notes

2012/2013

Financial penalties for employers

The government is intending to introduce a discretionary power for employment tribunals to impose financial penalties on employers who lose cases. The level of penalty that the government has suggested is half of the total award made by the tribunal, with a minimum threshold of £100 and a maximum of £5,000. The penalty would be reduced by 50% if paid within 21 days. This reform is likely to be included in the forthcoming Enterprise and Regulatory Reform Bill, announced in the Queen’s Speech to parliament on 9 May 2012.

BIS press release – November 2011

Government response to Resolving Workplace Rights consultation – November 2011

Queen’s Speech May 2012 briefing notes

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Tupe

2012/2013

Call for evidence on rules

The government has been collecting evidence on the effectiveness of the Transfer of Undertakings (Protection of Employment) Regulations 2006 - in particular, whether the rules are unnecessarily ‘gold-plated’ and bureaucratic. The closing date for responses was 31 January 2012.

Call for evidence: effectiveness of Tupe – November 2011

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Unions and employee representation

2012/1013

Call for evidence on collective redundancy consultation



The government has been collecting evidence on the statutory obligation for employers to consult about collective redundancies and, in particular, whether the 90-day minimum consultation period should be reduced. The closing date for responses was 31 January 2012.

Call for evidence: collective redundancy consultation rules – November 2011



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Whistleblowing

2012/2013

Proposal to close ‘loophole’

The government announced in November 2011 that it intends to close a ‘loophole’ in the Public Interest Disclosure Act 1998 on whistleblowing that allows employees to claim that blowing the whistle about a breach of their own employment contract is a protected disclosure. No further plans to address this issue have yet been forthcoming, but the government is to report on progress in spring 2012.

BIS press release – November 2011

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Working time

2012/2013

Changes to rules on annual leave and sickness absence

In May 2011, the government published plans to amend the Working Time Regulations 1998 in order to resolve uncertainty following a series of problematic European and UK judgements on the rights of workers who are unable to take holiday due to sickness. In essence, the government is proposing that annual leave can be carried over to the next leave year in circumstances where leave cannot be taken at the scheduled time due to sickness or where the employee is sick during scheduled annual leave.

However, since the Government made this announcement, there has been a European Court of Justice (ECJ) decision, KHS AG v Schulte, which said that the EU working time directive does not require unlimited accumulation of holiday when a worker has been on sickness absence for several years. The ECJ said that a 15-month ‘carry over period’ was lawful.

The Government’s firm proposals are expected during the first half of 2012.

Consultation on modern workplaces (BIS) – May 2011

ECJ judgment in KHS AG v Schulte – November 2011

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