Government publish timetable for the forthcoming employment law changes
The Government has set out a number of legal amendments due to take place as a result of its employment law review, which set out to analyse aspects of regulation that affect the employment relationship
Among the significant milestones for employers to look out for are:
The Government will legislate for the so-called owner-employee contracts of employment under which employees would be given shares in exchange for waiving certain employment rights. This will take place in autumn 2013.
- Reform of TUPE regulations, which is scheduled for October 2013.
- Revised rules for employment tribunals; the rules will be published by May to allow parties time to become familiar with them before their introduction during the summer.
- The introduction of fees for employees who start an employment tribunal claim are also mentioned, and this is scheduled to happen in the summer of 2013.
For the full timetable of changes and further information please contact us
Response to Tribunal review published
The Government has published its response to a review of employment tribunal rules.
Two key things to note include the fact that, under the new rules, where a tribunal claimant withdraws their claim, this could result in it being formally dismissed, without the employer having to formally request that the tribunal dismisses the claim. In addition, interest will start to accrue on a tribunal award from the date of the judgment. However, interest will not be payable if the award is made within 14 days.
There are a number of other proposed changes under the new rules, relating to, among other things, an initial sift stage for all tribunal claims and time limits on how long a party can take to present its evidence.
Workplace pensions auto-enrolment delayed
The Government has ammended the timetable by which employers must enrol their staff in workplace pension schemes.
The Government says that the amendments have been made in order to allow smaller businesses more time to prepare for auto-enrolment, due to what it described as "exceptionally tough economic times".
Larger employers - those with 250 employees or more - will not be subject to any change in their deadlines for auto-enrolment.
The changes are:
|Employer size (by PAYE scheme size) or other description||
Auto-enrolment duty date
50 to 249 members
1 Apr 2014
1 Apr 2015
Test tranche for less than 30 members
1 Jun 2015
30 Jun 2015
30 to 49 members
1 Aug 2015
1 Oct 2015
Less than 30 members
1 Jan 2016
1 Apr 2017
Employers without PAYE schemes
1 Apr 2017
New employers Apr 2012 to Mar 2013
1 May 2017
New employers Apr 2013 to Mar 2014
1 Jul 2017
New employers Apr 2014 to Mar 2015
1 Aug 2017
New employers Apr 2015 to Dec 2015
1 Oct 2017
New employers Jan 2016 to Sep 2016
1 Nov 2017
New employers Oct 2016 to Jun 2017
1 Jan 2018
New employers Jul 2017 to Sep 2017
1 Feb 2018
New employers Oct 2017
Changes to redundancy and unfair dismissal calculations
The cap on a week's pay for calculating statutory redundancy increases from £400 to £430 on 1 February. The new maximum statutory redundancy pay is £12,900.
An award of compensation for unfair dismissal is made up of a basic award as well as a compensatory award. The limit on a week's pay for calculating the basic award for unfair dismissal increases from £400 to £430 on 1 February. The basic award is calculated in the same way as statutory redundancy pay, so it is based on the employee's age, length of service and earnings.
The maximum compensatory award for unfair dismissal increases from £68,400 to £72,300 on 1 February. However, no maximum applies in certain circumstances, for example where the dismissal is for making a protected disclosure.
Get in touch if you want to discuss these further
In 2012 there will be some important employment law changes that will affect all companies no matter their size. Here are the five key changes you need to be aware of in the year ahead
1. Qualifying period for unfair dismissal protection is increased
There is to be an increase in the qualifying period for an employee to bring an unfair dismissal claim from one year to two years. This change comes into force on 6 April 2012.
2. Pensions auto-enrolment begins
Starting from 1 October 2012, employers with 50 or more employees have to enrol eligible employees automatically, and make mandatory employer contributions, into a qualifying workplace pension scheme or the National Employment Savings Trust (Nest). The requirement will be rolled out to smaller employers over the next couple of years
3. Maternity, paternity, adoption and sick pay increase
The Government has confirmed that the standard rate of statutory maternity, paternity and adoption pay will increase from £128.73 to £135.45 per week from 1 April 2012. Statutory sick pay will increase from £81.60 to £85.85 per week from 6 April 2012.
4. Statutory redundancy payments and guarantee payments increase
The maximum amount of a week's pay used to calculate a statutory redundancy payment and the basic and additional awards for unfair dismissal increases from £400 to £430 on 1 February 2012. The maximum unfair dismissal compensatory award increases from £68,400 to £72,300. The limit on the amount of a guarantee payment payable to an employee in respect of any day also increases from £22.20 to £23.50.
5. Changes to employment tribunal procedure
The Government has announced a "fundamental review" of the Employment Tribunal Rules of Procedure, with substantial changes to employment tribunal procedure expected to be introduced on 6 April 2012. Employment judges will hear unfair dismissal cases alone in the tribunal, unless they direct otherwise. The maximum amount of a deposit order, which a tribunal can order a party to pay as a condition to continuing with tribunal proceedings, will increase from £500 to £1,000. The maximum amount of a costs order, which a tribunal may award in favour of a legally represented party, will increase from £10,000 to £20,000. Witness statements are to be taken "as read" unless a tribunal directs otherwise.
There are a number of other employment law developments that are in the pipeline, but for which no date has been set. For example, there are proposals for the introduction of employment tribunal fees and plans for the introduction of "protected conversations", and there have been calls for evidence over whether or not the law on TUPE and collective redundancy consultation should be amended to reduce the burden on businesses. The Government has also announced that it will consult on reforming the law on employment disputes and removing the third-party harassment provisions of the Equality Act 2010.
Contact us for further information
Older workers missing out on training and performance reviews.
Employers should pay greater focus to the training and performance management of older workers or face falling foul of the law when the default retirement age (DRA) is phased out, says the Chartered Institute of Personnel and Development (CIPD).
The "Employee outlook: focus on an ageing workforce" survey released today suggests that older workers are often "neglected" when it comes to training and performance management.
The CIPD says that this highlights the need for employers to ensure that they are managing the performance of all employees effectively, particularly before the final phase-out of the DRA.
The report found that less than half of workers (46%) aged 65 and above have had a formal performance appraisal either once per year or more frequently, compared to 65% of all employees. In addition, 44% of employees aged 65 and above have not had a formal performance appraisal in the last two years or ever, compared to a survey average of 27%.
The report also found that older workers are much less likely to receive training, with half (51%) of those aged over 65 saying that they had received no training in the last three years, compared to 32% across all age groups.
The CIPD said that the phase-out of the DRA means that employers need to ensure that their performance management systems and practices focus as much on older workers as the rest of the workforce.
Here’s a link to a useful Acas article about the change in the law regarding retirement
Employers warned over staff affected by summer strikes
Employment lawyers have warned organisations not to refuse parents the day off when strikes cause school closures, or subject them to disciplinary measures on their return, as many parents struggle to find childcare in the face of such closures.
Employers will have to decide how to deal with staff that are forced to take time off to care for their children, which could put pressure on companies with a high number of working parents.
In most cases an employer would be ill-advised to refuse a working parent the day off, as they may be covered by the right to time off for dependants.
Organisations may also face problems if they attempt to discipline workers who cannot attend work due to the school closures.
Supreme court rules on legal representation in Disciplinary Hearings
The Supreme Court has ruled that it was not a breach of an employee's human rights to refuse him the right to be accompanied by a lawyer at a disciplinary hearing.
The case concerned a teaching assistant who was alleged to have acted inappropriately towards a pupil at the school at which he worked.
Disciplinary procedures were instigated against him; his conduct was found to have constituted an abuse of trust, and he was summarily dismissed. Subsequently, he was informed that his dismissal would be reported to the Secretary of State for Children, Schools and Families on the basis that he might be unsuitable to work with children.
The teaching assistant argued that the disciplinary hearing was in breach of his right to a fair and public hearing under the European Convention on Human Rights and that he should have been afforded legal representation during the hearing. As a result, the High Court found that the disciplinary hearing had breached his human rights, saying that his right to practise his profession might be irretrievably prejudiced in the disciplinary proceedings.
However, the Supreme Court today overruled the High Court. It looked at the case law from the European Court of Human Rights and concluded that it takes "a fact-sensitive, pragmatic approach to the right to legal representation".
This judgment is of particular significance to public sector employers, which should now be aware that an employee is not automatically entitled to legal representation at a disciplinary hearing that might result in him or her being referred to the authorities and potentially placed on the children's barred list.
However, the Supreme Court has stressed that the issue is fact sensitive and leaves open the possibility that legal representation may be required in limited cases, although it stopped short of providing examples where this would be the case
Survey reveals lack of People Management Skills
Six employers in 10 do not believe that their managers are confident and competent in managing underperforming staff.
This is according to a recent survey, which also found that four-fifths of organisations think that underperformance is a problem in their workforce to some extent
The five main performance problems employers faced were: high levels of sickness absence; the capability of the individual; poor attitude or behaviour to colleagues; poor standard of work; and failure to meet set objectives.
Read our Blog for our views on fixing this
Government publishes revised disability Guidance
The Government has published draft guidance on matters to be taken into account when determining questions relating to the definition of disability under the Equality Act 2010.
Existing guidance was produced under the Disability Discrimination Act 1995 and the updated guidance reflects the revised definition of disability in the Equality Act 2010.
Section 6 of the Equality Act provides that a person has a disability if he or she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
The guidance has been laid before Parliament and is expected to come into force on 1 May 2011.
First employer convicted for corporate manslaughter
A company has become the first to be convicted under corporate manslaughter legislation, following the death of one of its employees.
Cotswold Geotechnical (Holdings) Ltd was found guilty of failing to ensure the safety of Alexander Wright, a geologist who died in 2008 when a pit collapsed on him.
Wright was alone in the 12.6ft-deep unsupported trial pit when it caved in at a development site in Gloucestershire. The pit should have been supported by timber structures to reduce the risk of collapse, but no support was in place. Wright died from traumatic asphyxia as he was crushed by the weight of the soil in the pit.
The company has been fined £385,000, but is allowed to pay off the fine over ten years, at £38,500 a year.
The prosecution, at Winchester Crown Court, was the first under the Corporate Manslaughter and Corporate Homicide Act 2007. The company had denied the charge of corporate manslaughter
Government shelves Time to Train Regulations for SMEs
Time to Train Regulations will not be extended this April to employees of small and medium-sized businesses (SMEs).
The Regulations, which offer employees the right to request time for training, have been available to employees of large organisations (those with 250 or more employees) since April 2010.
Time to Train operates on a similar basis to the right to request flexible working. Employees are entitled to request time to undertake work relevant training, which employers must formally consider. Employers are entitled to refuse the request if one of a number of acceptable business reasons applies.
The Regulations were due to be extended to employees of SMEs in April this year, but the Government has today confirmed that it is "taking further time to examine the potential impact of the Regulations on smaller firms".
The top six employment law changes for 2011
Read our blog to find out how these will affect your business
National Minimum Wages amendments come into force
The Government has finalised the National Minimum Wage (Amendment) (No. 2) Regulations 2010, come into force on 1 January 2011.
IN the past schemes have been run that allow part of employees’ pay, normally subjected to tax and NIC, to be replaced with expenses payments for travel The amendment means that expenses for travel to a temporary workplace and related subsistence costs can no longer form part of employees’ pay for national minimum wage purposes
Temporary workers paid at or near the National Minimum Wage (NMW) can participate in travel and subsistence schemes, operated by some employment businesses and umbrella companies. These are designed to provide tax and NICs savings while complying with NMW rules.
According to the Government, many of these schemes are "exploitative as the employer retains most of the financial benefits and the workers have little or no knowledge of how these schemes work".
The Government also says that "participation may adversely affect workers’ access to earnings-related social security benefits. Those businesses not wishing to operate these schemes for NMW workers suffer a competitive disadvantage, leading to market distortion."
The Government says the amendment will address the issue of exploitation and the potential adverse impact on workers’ access to social security benefits and will create a level playing field for employment businesses.
Chamber of Commerce calls for overhaul of tribunal system
Employees taking cases to an employment tribunal should have to pay a fee in order to discourage spurious claims, according to the British Chambers of Commerce (BCC).
The BCC has called for an overhaul of the employment tribunal system, which it says is in "dire need of reform", with many companies settling cases instead of fighting them to keep costs down.
Figures released by the BCC showed that the average cost for an employer to defend themselves at tribunal is £8,500, compared to an average settlement of £5,400.
The Government is expected to consider the proposal amongst other employment law amendments this year.
Firms urged to use online learning to save money
Employers are being encouraged to make the most of online training tools and resources to overcome a predicted reduction in training budgets.
Research carried out by the Chartered Management Institute (CMI) found that 43% of managers anticipate that their training budgets will be cut again next year, potentially resulting in business-damaging skills shortages.
To reduce the negative impact of reduced investment in training, the CMI has recommended that employers should look to online training and e-learning resources, which can often be more cost-effective than their offline equivalents.
Further, according to CMI research, online training has become increasingly popular with employees this year. A survey of UK workers carried out earlier this year by the CMI found that 35% of staff would rather go online when looking to brush up on their skills, second only to seeking advice from trusted colleagues (36%).
Get in touch with us to find out how we can help you deliver online E-learning to keep and develop your talent
Funding for Apprenticeships increased, Train to Gain axed
A new national skills strategy has been announced by the government, which intends to boost the number of adult apprenticeships and fund basic skills courses for those who have left school without basic reading, writing and maths abilities.
The Skills for Sustainable growth, unveiled by business secretary Vince Cable, outlines plan to invest £605 million in adult apprenticeships next year and create an extra 75,000 apprenticeships places by 2014-15.
It also pledges to improve the apprenticeships package so that level 3 (A-level) becomes the target level, while a £210 million investment in adult and community learning to support personal development will also be protected.
Other targets include replacing Train to Gain with an SME-focused programme to encourage small employers to train low-skilled staff and help people who are receiving job-seeking benefits to secure work through labour-market-relevant training.
Legal aid changes could prompt rise in 'hopeless' tribunal cases
Employers could face a rise in "hopeless" employment tribunal cases if Government plans to reform the legal aid system go ahead, an employment law specialist has cautioned.
The warning follows a Ministry of Justice consultation published in November, which proposes a shake-up of the current system of legal aid in England and Wales.
Under the plans, legal aid would be scrapped for employment matters, including legal help for getting advice in advance of employment tribunal proceedings unless they are discrimination cases.
Legal aid for representation for employment matters heard outside the tribunal system and in appeals to the Employment Appeal Tribunal would also be removed.
New mini website launch
We are launching a new website this month to highlight the E-Learning package development service we offer. It’s an important part of the service we offer to present and prospective customers, but we found the message wasn’t getting across as well as we’d like it to on the main site.
You can find the site at www.sandymould.co.uk (bit of a clue in the name as to which of us writes the training material!)
We decided on the minimalist approach to the design and would love to hear what you think of it.
What is the main purpose of the Equality Act 2010
The main purpose of the Equality Act 2010 is to harmonise and strengthen the previous law on discrimination to promote equality and provide a simpler, more consistent framework for the effective prevention of discrimination.
The Act aims to promote equality by extending the definitions of direct and indirect discrimination, harassment and victimisation and introducing new concepts including discrimination arising from a disability and the power for employment tribunals to make recommendations that benefit an employer's wider workforce.
What are the main provisions of the Equality Act?
- the definition of the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation;
- the new definition of direct discrimination common to all protected characteristics;
- the new definition of harassment to include conduct related to a protected characteristic so that there is no need for the characteristic to be that of the complainant;
- the extension of employers' liability for third-party harassment (which was previously limited to sex-related and sexual harassment) to all protected characteristics, except marriage and civil partnership & pregnancy and maternity;
- the extension of indirect discrimination to disability and gender reassignment;
- the removal of the requirement to show a comparator when claiming victimisation;
- the new definition of gender reassignment;
- a restriction on enquiries about disability and health prior to making a job offer;
- the extension of employment tribunal powers;
- the unenforceability of pay secrecy clauses in contracts of employment; and
- the removal of the requirement to show an actual comparator when claiming direct sex discrimination in relation to contractual pay.
Is there any statutory guidance for employers?
The Equality and Human Rights commission is producing guidance notes as is the Office for disability issues. Of course, for simple straight forward advice you can always speak to our team here at Resource First!
We’ve put together a personal opinion on the legislation and what it’s effects may be on our blog.
New Guidance for Managing Long term sick published
Major new guidance has been published to help managers support people returning to work following long-term sickness.
Developed jointly by the British Occupational Health Research Foundation, the Chartered Institute of Personnel and Development, the Scottish Centre for Healthy Working Lives and theHealth and Safety Executive, the Guidance is focused on illustrating the key behaviours needed by managers to support timely and lasting returns to work.
The "Manager support for return to work following long term sickness absence" document has been developed from research involving employees, line managers, HR, health and safety and occupational health practitioners.
From this, a competency framework has been developed to help employers equip their managers with the necessary skills.
The guidance also includes a questionnaire designed to measure the relevant behaviours for managers, including that they are:
- staying in touch regularly with the individual while they are sick;
- reassuring them their job is safe;
- asking the individual's permission to keep the team informed of their condition;
- preventing them from rushing back to work before they are ready;
- providing a phased return to work;
- helping them adjust to the workplace at a gradual pace;
- encouraging colleagues to support the individual's rehabilitation; and
- holding regular meetings to discuss the individual's condition and the possible impact on their work.
Minimum Wage Changes
A reminder that the changes discussed in our September news update (below) are now in effect.
Government reviews right to request time off for training Regulations
Skills minister John Hayes has announced a short consultation on the new law as part of wider bid to reduce burdens on businesses. The move follows hints by ministers that the coalition is also looking at shelving or scrapping plans to extend paternity leave
The legal right for workers in businesses with more than 250 employees to request time to take up relevant training came into effect from 6 April 2010. For small and medium-sized businesses the Regulations will come into effect from April 2011.
Hayes said: "Before we make any decisions about the future of the right to request time to train, it is important that we gauge views of the Regulations and whether they are improving training opportunities for employees.
"We believe it is important that all regulations are properly scrutinised and we are therefore interested in hearing views on the future of this right and its role in promoting training in the workplace, which I see as vital to our economic success.
The Consultation will be shorter than the normal 12 weeks and will close on 15 September.
The Government said the consultation would be "actively promoted" to interested organisations to ensure that a good response was obtained.
Council worker loses job over 'God' comment
A committed Christian who was sacked from his council job after suggesting to a terminally-ill woman she "put her faith in God" has lost his case.
An employment tribunal ruled that it was reasonable for Wandsworth Council to dismiss Duke Amachree, after he was sacked for gross misconduct for suggesting to a client with an incurable illness not to give up hope and to try putting her faith in God.
The tribunal also found the council had not discriminated against Amachree on the basis of his religion. In addition, the tribunal took the view that he had breached confidentiality by publicising his case.
Amachree was suspended from his role as a homelessness prevention officer in January 2009 after council bosses received a complaint from a "shocked and upset" service user. The woman had sought advice about her housing situation during an interview with Amachree two days previously.
Minimum wage change
The age at which workers become eligible for the full national minimum wage rate will drop to 21 this year - a move that will cost employers nearly £50 million.
The age from which the principal rate becomes payable falls from 22 to 21 on 1 October 2010. Employees of that age and above will be entitled to a minimum wage of £5.93 per hour - up 2.2% from £5.80.
The Department for Business estimates that about 85,000 21-year-olds will be affected by moving them onto the adult rate.
Workers aged between 18 and 20 will see their hourly rate rise from £4.83 to £4.92; and the rate to be paid to workers aged under 18 who have ceased to be of compulsory school age rises from £3.57 to £3.64 per hour.
Apprentices who are either aged under 19, or who are over 19 and in the first year of their apprenticeship, do not currently qualify for the minimum wage. The new Regulations provide that these apprentices will in future be entitled to a new hourly rate of £2.50.
Employers bypassing Recruitment agencies
The growth of social networking has had an effect on the strategies being adopted by companies to attract new staff.
More and more HR departments are turning to sites such as Linkedin when looking to recruit new employees. With such sites giving a potted CV and numerous methods of getting references, they are able to save on the costs of using outside agents.
Contact our team to discuss how you could make use of social network sites to get new talented team members
Acas has published new guidance to help prepare for the Equality Act which is due to come into force in October.
The Acas guide – The Equality Act, What’s new for Employers? – explains how the new law will affect employers in areas including third-party harassment, pre-employment health checks, employment tribunals, and pay secrecy.
Under the Equality Act, employers are potentially liable if their staff are harassed by people they don't employ, such as external suppliers or customers,
From October, employers should no longer send out pre-health questionnaires with employment application packs, although there are some exemptions - for example, around questions related to making reasonable adjustments for the person in the selection process if they are disabled.
There will also be changes to employment tribunals. Tribunals will be able to require employers found guilty of discrimination to take steps to change their policies and practices to prevent further discrimination.
Perhaps most controversially, employers will not be able to require their employees to keep their pay secret. However, an employer can still require employees to keep pay rates confidential from others outside the workplace, such as competitors
Tribunal claims rise to record levels
The number of claims accepted by employment tribunals has increased by 56% to the highest level on record, according to new data.
Figures published by the Tribunal Service reveal the number of claims accepted by employment tribunals in 2009-10 increased to 236,100, up from 151,000 the previous year.
The number of claims associated with redundancy pay also shot up by 76% from 10,800 in 2008-09 to 19,000. Unfair dismissal claims also increased by 9% to 57,400.
Meanwhile, age discrimination claims rose by 37% to 5,200. And claims associated with the Working Time Directive also increased sharply by 297% to 95,200 in 2009-10.
But equal pay employment tribunal claims dropped during 2009-10 by 18% to 37,400.
The number of disposals - cases withdrawn, settled, dismissed, or decided at a final hearing - by employment tribunals increased by 22%, but this did not keep pace with claim receipts as more than 400,000 claims remained outstanding.
Due to this backlog there was a significant drop in the number of claims in which the first hearing took place within 26 weeks of the claim being received. This fell from 74% to just 65%.
The overall rise in employment tribunal claims can be explained by the recession and a significant increase in multiple claims submitted last year - which involve a number of individuals bringing claims relating to the same incident, such as a TUPE decision.
Immigration cap could harm employers
Government plans to limit the immigration of workers from outside the EU could result in skills shortages in key sectors, industry figures have warned.
The government is now consulting employers over a permanent annual cap to be introduced in April 2011. An interim limit will be imposed from 19 July to avoid a surge in applications.
The new temporary controls will cap the number of visas for the most highly skilled migrants in Tier 1 at 5,400 – the same level as 2009 – and will raise the number of points needed to qualify from 95 to 100. Tier 2 workers – skilled migrants who fulfil a specific UK job offer – will also be reduced by 1,300 to 18,700 over the next nine months.
The healthcare field, hospitality industry and education and technology sectors are expected to be directly affected by the rule changes, as professions on the official shortage list will be included in the restrictions.