UK: Employment Law 2012 Looking Ahead To The Changes

Last Updated: 19 March 2012
Article by Alison Wallace

New qualifying period for unfair dismissal claims

This will increase from 1 year to 2 years for new employees commencing work with an employer with effect from 6 April 2012. It is estimated that unfair dismissal claims will fall by 3000 cases per year and thus will encourage employers to recruit and retain new staff but more importantly claims not needing any qualifying service could rise as a result. This comes at a time when the Courts have recently extended the geographical limit of the UK's unfair dismissal legislation to an employee who only worked on rotation in Libya.

Parental leave

The increase from 13 weeks to 18 weeks is now being delayed until March 2013. The Government is still consulting on shared maternity leave proposals after 18 weeks so a mother and father can share the remaining 34 weeks' leave.

Executive remuneration

Transparency and disclosure are the current byword both in public and private organisations. With statutory controls, regulatory provision and contractual rules, the balancing of employee performance, shareholders' returns and public accountability becomes ever more difficult. The Government is therefore looking at clearer structures linking pay policy to performance. There is also a move to increase worker influence on setting executive pay.

Bonus culture

This has become a PR rather than a legal issue with both public and private employers seeking to downplay substantial rewards particularly in the financial sector against a background of austerity measures elsewhere. The shadow of EU reform also remains but most bonus schemes work well in motivating and rewarding staff, providing they are operated fairly.

Early mediation and conciliation

The Government is consulting on proposals to reduce the number of claims against employers of all sizes. Instead of confrontation or litigation, mediation and conciliation will be offered. The Government is proposing compensated no fault dismissals for businesses with 10 or less employees. Additionally, fees are to be introduced for anyone bringing a claim in a Tribunal and penalties for employers who breach employee rights. Once an unfair dismissal case is before the Tribunal after 6 April 2012 an employment Judge can sit alone to hear the case which should speed up the process of claims that are not settled.


The Government aims to close the loophole whereby employees could blow the whistle on breaches to their own contract terms which was never envisaged in the original legislation, in order to deter unmeritorious claims.

Cost awards

The cap on the amount of costs that may be awarded to a successful litigant in tribunal claims will rise to £20,000 with effect from 6 April 2012. How much of a disincentive this will be remains to be seen.

Pension auto enrolment

This will commence from 1 October 2012 depending on size of business. Employers will be staged into the scheme. However for the first time, employers will be required to make a minimum contribution to an eligible employee's pension of up to 3% for employees earning more than £8,105 per annum, in line with the PAYE threshold. Workers can however opt out of the auto enrolment.

Disclosure of pay gap information

Private sector gender pay gap information is still a long way off but new proposed legislation by the Government may require Tribunals to order an employer to conduct a pay audit where that employer has been found to have discriminated in pay matters because of gender. Best practice suggests that pay audits are carried out on a regular basis by businesses in any event.

Redundancy consultation periods

The Government is still consulting on reducing the minimum period for collective consultation from 90 days to 60 or 45 or possibly 30. Many businesses find the 90 day rule unworkable when cash flow becomes an issue. The Government is also considering at what stage the consultation period is triggered. Is it either when a strategic decision or an operational decision is made to close the business or to put into effect a downsizing of the workforce or when an employer is proposing to make a decision that will lead to collective redundancies is made?


TUPE can easily be described as overly bureaucratic and one proposal being reconsidered by the Government is that the buyer should be able to speak to sellers' employees pretransfer about potential redundancies once the business has been transferred. There are more and more cracks appearing in the TUPE legislation for protecting employees' jobs particularly where there is service provision change and the services are fragmented post transfer or in prepack disposals by administrators.

Protected conversations and proforma compromises

Conversations between employers and employees are regarded as without prejudice where they relate to a possible exit arrangement but only where there is an existing dispute. The Government's intention is to extend these protected conversations where there is no such risk of a claim and the employer simply wants to have a frank conversation and then reach an agreement with the employee that it is time to go without this being relied on in evidence later. Compromises can take any number or shape or size but the Government is also looking at a proforma compromise for a simpler one size fits all regime.

Social media

This continues to rear its head in Tribunals and the press and it will do so during 2012 as more case law is developed on what is permissible activity by an employee inside and outside the business and what an employer can rely on when considering hiring a prospective employee.

Collective agreements after a TUPE transfer - are they static or dynamic?

At present they are regarded as static and any post transfer negotiations are not deemed to apply to the transferred employees, as the new employer is not a party to the negotiations. The Parkwood Leisure case has now been referred to the European Court of Justice, so a final decision on this point is expected.

Agency workers

There are no reported cases yet as it is early days. However subject to the qualifying period of 12 weeks, the likely issues will be determining comparators and equality of treatment.

Bribery Act

There has already been one conviction under the Act but many businesses are still grappling with how big a compliance issue this Act really is.

Holiday leave and sickness absence

The Government is proposing to amend the Working Time Regulations to deal with the discrepancies with the Working Time Directive. Concern remains over an employer's liability for carry over holiday leave when an employee is away on long term unpaid sick leave and for employees taking paid leave whilst on sick leave to ensure that these employees have at least 4 weeks' paid annual leave.


Unpaid volunteers are not covered by the discrimination legislation according to a recent Court of Appeal decision but an appeal is pending in the Supreme Court. If this decision is overturned businesses can expect to see a number of claims being made.


The TUC and the NUS are pressing for interns to be paid where they are doing more for employers than simply work shadowing. Young people need work experience but they should not be taken advantage of as they are in many instances. An intern who is expected to work would be entitled to the minimum wage and is probably an employee for all other relevant statutory rights.


The Supreme Court will shortly be delivering their judgment in the Seldon case and whether a law firm had a legitimate aim for using a retirement age of 65 to let Mr Seldon go or whether Mr Seldon was unlawfully discriminated against when he was retired involuntarily at 65. This may be an opportunity for the court to offer some general guidance on when it might be justifiable for employers to use a retirement age.

Associative discrimination and surrogacy

Mrs Coleman was found to have been directly discriminated against when she was dismissed for taking time off to look after her less abled child. Mr Kulikauska in turn appealed his unsuccessful claim for associated discrimination for supporting his pregnant wife which then led to his dismissal by MacDuff Shellfish. The Scottish Court of Session has now referred this to the ECJ. The position on associative pregnancy discrimination under the Equality Act 2010 is arguably unclear. The ECJ is also looking at the rights of a woman who becomes a mother by way of a surrogacy arrangement.

Human Rights

There are a quartet of religious discrimination cases before the European Court of Human Rights at the moment, the most familiar of which for HR advisers will be the Eweida case which concerned British Airways' refusal to let its employee wear a cross at work as it conflicted with their dress code. Does this type of discrimination "trump" all others? That would be unacceptable to many but there have to reasonable rules.


The Government is pursuing a programme of reform of immigration to the UK with the closures of routes and changes to settlement rules with effect from April 2012. There has been a big increase in the number of intra company transfers but settlement by such transferees in the UK is no longer available unless they entered the UK before April 2010. From 2016 those who apply for settlement from Tier 2 must be paid at least £35,000 per annum. There will also be a new visitor category for those on short-term assignments outside the Points-Based System.

And finally

Industrial Action

After several high profile strikes in 2011 many employers and the Government will be hoping that the Unions do not use the Golden Jubilee year or the Olympics as a platform for strike action. Sympathetic as people are to the Unions seeking to protect their members from being unduly affected by Governmental spending measures this is no time to derail the likely boost to UK competitiveness and visitor spending.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Alison Wallace
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.