UK: What's Left For 2012? Employment Law Update

Last Updated: 7 February 2012
Article by Emma O'Connor

COLLECTIVE REDUNDANCY AND TUPE

Changes to both collective redundancy and TUPE could be on the horizon following BIS's call for evidence.

The government is particularly keen to review the 90-day consultation period for collective redundancy to see whether employers consider the period too long and prohibitive. Plans could be to reduce the consultation period to 60, 45 or even 30 days.

The government is also seeking views on the overlap between collective redundancy and TUPE. With regards to TUPE, the government is considering whether the UK's interpretation of the EU's Acquired Rights Directive is 'over bureaucratic' and 'gold plated' and should be scaled back.

The closing date for answers is 31 January 2012.

PROTECTED CONVERSATIONS

The government want employers to be able to hold frank conversations with employees about matters including poor performance and retirement without the fear of this being used against them as evidence in Tribunal.

These conversations will not allow employers to abuse this right and an employee's Day 1 rights, such as protection against discrimination, will remain intact. The effectiveness of this proposal is yet to be seen.

No implementation date has been given.

DISPUTE RESOLUTION

There will potentially be a requirement for all claims to go through the ACAS conciliation service before reaching tribunal alongside a "Rapid Resolution" system within the employment tribunal service, where simple straightforward cases will be settled within three months.

COMPROMISE AGREEMENTS

There is a proposal, currently under discussion, to simplify the process, including a minimum agreed amount where parties agree a mutual termination of employment.

CONSULTATION ON TRIBUNAL FEES

The Ministry of Justice has issued a consultation document on charging fees in employment tribunals and the Employment Appeal Tribunal. In the employment tribunal, two alternative options are put forward:

  1. For the first option, the fee would depend on the nature of the claim, with three suggested levels:

    a. Level one would cover claims for unpaid wages and redundancy payments;
    b. Level two would cover unfair dismissal claims and;
    c. Level three would be for discrimination and whistle blowing claims.

    Separate issue and hearing fees are proposed, with "indicative fees" of between £150-£250 for issue of a claim and £250-£1,250 for a hearing.

  2. The second option would introduce a fourth level of fees, for claims where the claimant is seeking an award of over £30,000, and have issue fees only, ranging from £200 to £1,750.

    An issue fee of £400 and hearing fee of £1,200 is proposed for the Employment Appeal Tribunal.

The consultation on fees closes on 6 March 2012

WHISTLE BLOWING LEGISLATION TO BE AMENDED

Although as yet there is no planned implementation date, the Public Interest Disclosure Act 1998 is to be amended. Employees can no longer make a protected disclosure about a breach of their employment contract. The change was announced by the Business Secretary, Vince Cable, in his speech on 23 November 2011.

FINANCIAL PENALTIES IMPOSED ON EMPLOYERS THAT BREACH EMPLOYMENT RIGHTS

Employment tribunals will have the power to levy a financial penalty against employers that are in breach of employment rights.

The amount of the penalty will be based on the amount of the award that the tribunal makes, with a minimum threshold of £100 and an upper ceiling of £5,000. Employers will qualify for a reduction if they pay the penalty within 21 days.

There is no date yet for implementation.

FURTHER CLARIFICATION...

We reported that the government planned to increase the service qualification period for unfair dismissal protection from 1 to 2 years. Although we await formal confirmation, we understand that this change will only apply to employees commencing employment on/after 6 April 2012.

For those employees commencing employment before that date, they will attain the right once they have reached 12 months' service. As previously stated this change does not affect automatic entitlement to bring claims for unfair dismissal in certain prescribed circumstances.

We have also learned that the government is not going to implement the EU's changes to parental leave as of March 2012. Instead, the government will use the year's grace afforded to it under the legislation before making any changes to domestic parental leave rights.

There have also been some murmurings as to when (and if) there will be an increase in deposit orders from £500 to £1,000. This is the sum of money an employment tribunal can order a respondent or claimant to pay into court before continuing with their case. This increase will not now happen as of 15th February 2012; however, we expect this rate to rise as of 6th April 2012, although we await formal clarification.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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