2014 brings many changes to the employment law landscape. With the usual changes to statutory rates taking place, there are other changes that employers need to be aware of such as changes to TUPE; changes to ACAS conciliation; right to flexible working to be extended, amongst other things. Employers need to ensure that they are up to date with the legal changes in order to avoid any potential ramifications. Read more about these changes in our blog.
31 January 2014
Changes to TUPE implemented
Fines for NMW breaches increased to a maximum penalty of £20,000
10 March 2014
Reduction in the rehabilitation periods for less serious criminal offences
6 April 2014
Tribunals to have the power to impose financial penalties on losing employers if workers rights have been breached
Discrimination questionnaires abolished
Changes to ACAS conciliation introduced
Increase in compensatory limits and the week’s pay figure
Statutory pay limits increase
Changes to sickness absence introduced
30 June 2014
Right to request flexible working for all introduced
Tribunals to give the power to order an employer to carry out an equal pay audit
Response from government to the annual leave aspects of the Modern Workplaces consultation expected
Fathers and partners able to take time off to attend up to two antenatal appointments
Changes to Rehabilitation Periods
Fewer convictions will need to be disclosed when applying for jobs due to the government reducing the length of rehabilitation periods. The roles which require offenders to declare all their convictions when working in sensitive workplaces will remain unchanged....
Employers are generally not allowed to enquire about a job applicant’s criminal convictions which have become “spent” however there are exceptions for certain occupations or professions. A conviction becomes spent once the rehabilitation period has expired.
Financial Penalties for Breaches of Employment Rights
As of April 2014 a tribunal will have the power to impose financial penalties on employers who have lost their case and where the tribunal decides that an employer has breached any of the worker’s rights to which the claim relates and the breach has one or more aggravated features. This will apply to cases that have been lodged after this date.
If a penalty is appropriate then normally 50% of the compensation will be awarded, subject to a cap of £5000. The penalty will be reduced by half if the employer pays the amount within 21 days.
The potential financial exposure for employers will therefore increase, however time will tell how this penalty regime will be applied in practice.
Changes to ACAS Conciliation Introduced
Changes to the ACAS conciliation process will be introduced as of 6 April 2014. From 6 May onwards it will not be possible to start an employment tribunal claim without first involving ACAS. This will mean that the limitation clock will pause during these proceedings so that the three month time limit will not expire.
The scheme will require potential claimants to approach ACAS before issuing proceedings by contacting them directly or completing a form. There will then be a month long period during which an ACAS conciliation officer must try to promote a settlement between the parties.
If it is concluded that a settlement cannot be reached then an early conciliation certificate will be produced and this will have to be evidenced on the tribunal claim form (ET1) otherwise the claim will be rejected.
Equal Pay Audits Powers Introduced
A tribunal will be able to order a company to carry out an equal pay audit from October 2014 in order to quantify and report disparities between wages across gender and other characteristics in an organisation.
The Office for National Statistics has reported that the gender pay gap is increasing with women earning an average £5,000 less than their male counterparts.
Employers should be worried about this because under equal pay legislation staff can claim up to six years of back pay. This is illustrated by Birmingham City Council where 11,000 employees brought a case for equal pay which could cost £1.1billion to settle.
Increase in Statutory Pay Limits
As of 6 April 2014 the statutory pay limits will increase. The breakdown is as follows:
Statutory Sick Pay will rise from £86.70 to £87.55 per week.
Statutory Maternity Pay, Statutory Adoption Pay and Statutory Paternity Pay will rise from £136.78 to £138.18 per week.
A week’s pay for the purposes of calculating redundancy pay will rise from £450 to £464 per week.
The lower earnings limit will remain at £109 per week but is expected to change in October 2014.
The Dying Matters Coalition and the National Council for Palliative Care (NCPC) is campaigning for statutory paid leave for bereaved employees. The number of people dying each year is set to increase given the ageing population therefore it is an important time to focus on end of life issues affecting employees and put support mechanisms in place.
Whilst there are unpaid provisions for employees to take emergency leave within normal working hours, there is currently no legal right to compassionate leave as a result of bereavement as set out by the Employment Appeal Tribunal in Forster v Cartwright Black  IRLR 781....
At present, bereaved employees typically take 3-5 days off unpaid and then have to take holiday or sign off sick in order to avoid being disciplined for lack of attendance - believe me; this has happened in some organisations.
Research entitled “Life After Death” has been recently carried out by the above organisations and it highlights issues that employees are faced with in this situation. A third of employees who had been in this situation felt that they had not been treated with compassion by their employer and 87% believed they should have been paid for bereavement leave. More than half of those questioned said that they would consider leaving a job if their employer did not provide adequate support in these circumstances.
Employees report that bereavement is viewed as an inconvenience and there is an expectation to get back to normal daily work as soon as possible. Whilst this may be good for some, it can be catastrophic for others. Providing no support can lead to negative PR for a company and employees then stay off work longer because the pressure to return without having dealt with their grief makes them stressed and depressed. Reactions to death are personal and individual and therefore we believe that each case should be considered on its own merits.
Whilst a majority are campaigning for statutory paid bereavement leave, others believe it would be unreasonable for an employer to shoulder the burden of costs given that bereavement is an inevitable part of life. Some have concerns about what limitations should be included; should leave for discovering that a relative has a terminal illness be included? Should leave be extended to include close friends as well as family? Some argue that legislation would have to take religion into consideration to avoid potential discrimination risks which would in turn extend leave given dependent on the religion that is practiced. For example, considerations for Hindus who perform cremation close to death and then mourn for 13 days with family. Likewise, it is Jewish practice to hold funerals on the same day of death where possible and then immediate family must stay at home for the following seven days.
The research and polling shows overwhelming support for paid bereavement leave but what are your thoughts? Should bereavement leave become a statutory right complete with a statutory payment made whereby employers can claim the figure back from the government, much like statutory maternity pay? Should employers bear the cost?
Time will tell whether the campaign is successful, however we would advise all clients to ensure that they carry out a review of their employment practices relating to bereavement and ensure that there are policies in place to provide support and set out what employees are entitled to.
We all know the adage ‘Fail to prepare…’ so with reports that this winter could be the worst in years, now is the time for employers to prepare themselves and their workforce for a wintry eventuality.
It seems that the UK grinds to a halt at the first sign of heavy snowfall and with statistics from last year showing that bad weather cost the UK economy an estimated £11 billion, now is the time for employers to ensure that they have contingency plans in place to cope if their staff cannot attend work due to the weather.
The first thing to consider is having an adverse weather policy in place which outlines the processes that employees should follow in the event of potential travel disruption and non attendance at work. This should be communicated to all employees to avoid confusion.
Employers need to understand their legal position. An employee is not legally entitled to receive pay unless they are ready and willing to work, however failing to pay could pressurise the employee into risking their safety trying to attend the workplace. Also bear in mind that this could impact on employee morale if they are penalised for trying but failing to attend due to measures out of their control. Therefore employers need to consider what they want to impose and ensure that it is applied fairly and consistently across the board.
Measures could include paid ‘snow days’ assessed on the severity of the weather conditions, employees making up the time missed, taking annual leave to cover the absence or remote working from home, attending virtual meetings if they are unable to attend meetings at the office.
However if the absence is avoidable and employees are using the weather as an excuse then they should be informed that it could result in a disciplinary matter. If you wish to make deductions from pay due to a failure to attend work, then ensure you have a legal right to do so in the form of a deductions from wages clause.
The Centre for Economic & Business Research has predicted that this year the adverse weather is expected to cost the UK economy up to £900 million per day with the greatest cost coming from the employees’ ability to get to work during the adverse weather. With 76% of employees believing that businesses could be much better prepared, now is the time to put those measures in place!
A 12% increase has been reported in the number of CV’s containing dishonest claims. Therefore, companies have turned to stringent vetting processes in order to sift out the charlatans and lessen risky prospects. However they have to be wary not to use a discriminatory process.
The Equality Act 2010 protects job applicants and this legislation prohibits discrimination even at recruitment stage. Therefore it is vital that all recruitment practices ensure fairness and predict job performance.
Some candidate application processes can affect certain categories of job applicants and cause adverse impact. Therefore companies must not have a selection criterion that has the effect of disadvantaging applicants with a protected characteristic, unless it can be evidenced that the use of these criterion are justified. In order to do this, the employer would need to show that there is a real business need to use the selection tool and the practice was reasonable and necessary in order to achieve that aim.
Always bear in mind the Rehabilitation of Offenders Act 1974 which prohibits discrimination against ex-offenders – unless the role is exempt from the Act. The shoe repair company, Timpson believes that it is fine if people lie about their background to get a break. They have been hiring ex-offenders who now account for more than 10% of the workforce and place great emphasis on honesty. However, they state that whilst pre employment checks are made, application forms, CVs and work related references often fall short of the truth with decisions being based on the interview performance and personality displayed.
Tips on Vetting…
- DBS checks or ask about previous convictions but be aware of the Rehabilitation of Offenders Act
- Use application forms rather than using a CV
- Base recruitment decision on evidence
- Be clear what risks you want to guard against and why
- Ensure negative evidence is based on fact
- Use social media to look for specific information
- Ensure information accessed online is fully verifiable
- Ask questions in the interview based on reflective practice or designed to test competencies
- Ensure references are true, accurate and fair
- Show applicants information that has caused a job offer to be withdrawn
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