Employment Law Update : where are we? Stuart Chamberlain

Programme GOVERNMENT REFORMS TO EMPLOYMENT LAW : IMPLICATIONS FOR LOCAL AUTHORITIES Review of 2013 What’s happening in 2014? And 2015? SELECTED and RELEVANT CASE LAW 2013

Coalition Government’s employment law policy – a reminder Employment Law Review throughout the life of government Remove regulatory burdens – The Red Tape Challenge – A “light touch” Employment Law is “costly, time-consuming and overly bureaucratic” Remove barriers to “flexible, effective and fair” labour market Aim to support employers, individuals and their families Better information & guidance (e.g. the Employer’s Charter) Whole series of Consultations and “Calls for Evidence” Encourage parties to settle rather than go to ET - & save money!

The relevant legislation Enterprise and Regulatory Reform Act 2013 Growth & Infrastructure Act 2013 Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 Children and Families Bill – some delay 4

1. CHANGES TO UNFAIR DISMISSAL REGIME – including REDUNDANCY

Changes to unfair dismissal- a brief reminder Change in qualifying period increased from one to two years Cap on compensation for unfair dismissal: employee’s wages for 12 months or current cap of £74,200 – whichever is the lower. New unfair dismissal claim – where the reason for dismissal is the employee’s political opinion or affiliation Introduction of Settlement Agreements Introduction of Fees at ETs And 2014 : referral of all claims to ACAS

Implications for LA employers Obviously now more difficult for employees to bring claim of unfair dismissal. Claims by other routes? Will trade unions be able to fund multiple claims? “Whistleblowing” regime: new liabilities for employer Response to new claims for dismissals on grounds of political opinion or affiliation (the Redfearn case)?

Redundancy Employees on fixed-term contracts excluded from collective consultation obligations (but agency workers?) Minimum consultation period reduced from 90 days to 45 days (where 100+ employees are affected within 90 days’ period) BUT upper limit on protective award remains 90 days ACAS non-statutory code of practice “How to manage collective redundancies” – checklist of key points “Woolies” case referred to CJEU (legality of “one establishment” in legislation) 8

2. DISCRIMINATION

DISCRIMINATION: A CLIMATE CHANGE? Significant changes to EHRC Removal of third party harassment: now what? Review of Public Sector Equality Duty and specific equality duties – not fit for purpose? Recommendations? Discrimination questionnaire procedure to be repealed (6 April 2014)

3.REFORM of TUPE & IMPLICATIONS FOR LA EMPLOYERS

Reform of TUPE: background Aim of reforms was to avoid “gold plating” i.e. to go no further than minimum requirements of the ARD, unless there was a clear economic rationale for doing so “Call for Evidence" and Consultation – the BIS response Major reform or merely “tidying up”?

(i) Service Provision Changes (SPC) SPCs, despite being the most obvious example of “gold plating” of UK law, are retained New test: activities must be “fundamentally the same” before and after the transfer – already acknowledged in case law Provides certainty – good news for contractors? Any need for change in procedures?

(ii) Collective Agreements Transferee not bound by any collective agreement agreed after the date of the transfer, if not party to bargaining - embraces the “static “ approach & merely enacts CJEU’s decision in Parkwood Leisure Ltd v Alemo-Herron Terms derived from collective agreement can be negotiated after one year, provided that overall effect is “no less favourable” to employees”

Reform of Collective agreements & TUPE: Implications A relief for contractors! Discontented workforce? Future problems? —What does “no less favourable” mean? —Any variation must have agreement of employees? 15

(iii) TUPE & Dismisssal Change in definition of automatically unfair dismissal: “connected with the transfer” too wide: now no protection where the reason for the dismissal is the transfer, unless there is an ETO reason entailing changes in the workforce “ETO” reasons to include change in place of work (“location”) No amendment of Regs. 4(90 and 4 (10) (material detriment; changes to working conditions Transferor may not rely on transferee's ETO for dismissal.

(iv) Variations to terms & conditions The general rule of contract change – need for agreement – does not apply in TUPE regime Any variation void where sole or principal reason for the change is the transfer “connection with the transfer” removed from legislation

(iv) Variations to terms & conditions cont. Changes not by reason of the transfer are possible – where positive for employee Changes to collective agreement are possible ( see above) BUT “Harmonisation” remains unlawful ( contrary to EU law - see Daddy’s Dance Hall) – UK to consult with EU partners – what can the transferee do? 18

(v) Information and Consultation Extension of time for provision of employee liability information (ELI) from 14 to 28 days Pre-transfer consultation between transferee & transferor’s workforce may count towards collective redundancy consultation ( under s.188 TULCRA 1992) —Transferor has to agree —Transferee has to give written notice to transferor —– potential problems?

4. LEGISLATION ETC

Legislation 2014 Right of flexible working extended to all employees with 26 weeks’ service – but delayed ACAS Early conciliation (6 April 2014) —Four-step process (?) —Will it work? New Health & Work Service for employees absent for 4 weeks due to sickness (spring 2014) & revision of “Fit-Note” Financial penalties in ET for employers (£5000?)- April 2014

Consultations 2014 Consultation on ACAS Disciplinary & Grievance Code Zero Hours Contracts – to improve transparency Caste discrimination – but see ET case And remember need for changes in Working Time Regs – carry over of annual leave 22

Legislation 2015 Flexible/ Shared Parental Leave – parents will have the ability to “split” 52 weeks of parental leave at any point from 2 weeks after birth Time off for Ante-natal appointments - fathers and other qualified persons will be entitled to time off work to attend 2 ante-natal appointments with expectant mothers. 23

CASE LAW: a selection

Case law - 1 USDAW v Ethel Austin Ltd (in administration ) – the “Woolworths’ case” Collective consultation obligation is triggered by 20 in business/organisation – regardless of the number at individual sites-referred to CJEU. Wright v North Ayrshire Council : for constructive dismissal claim the employer’s breach must be part of the cause of resignation, not the effective cause. Toal v GB Oils: EAT ruled that the right to choose companion was the employee’s choice and the employee’s alone -Acas advice misleading.

Case law – 2 Wade v Sheffield Hallam University (EAT ): waiver of competitive interview not a reasonable adjustment – Archibald will not always apply Sohbi v Commissioner of Police of the Metropolis (EAT): new second limb of test of disability: whether the impairment impacts on someone’s participation in professional life City and Council of Swansea v Gayle (EAT): Fraudster not unfairly dismissed & no breach of Article 8 (right to privacy) or of Employment Practices Code ( DPA). Working Time cases

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