February 1, 2013

February Employment Law Update


  • The Enterprise & Regulatory Reform Bill has commenced the report stage in the House of Lords.  The proposed changes to the whistle blowing legislation which are part of the Bill being debated are :-
    • Extending whistle blowing protection to job seekers by extending the definition of “workers” to include job applicants
    • Require that the protected disclosure must, in the worker’s reasonable belief, be in the public interest
    • Removal of the good faith requirement for a disclosure to qualify as protected but reducing compensation by up to 25% where it is not in good faith
    • Making employers vicariously liable for detriments by fellow workers subject to the normal statutory defence
  •  BIS has published the draft Trade Union & Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013, which will shorten the collective consultation period for more than 100 employees from 90 to 45 days and now includes fixed term employees in the numbers.  The trigger date for the new period is when the proposal to make 100 or more people redundant occurs on or after 6th April 2013.
  • The Government is consulting on changes to the Transfer of Employment (Pension Protection) Regulations, brought in to operate pension protection for employees following a TUPE transfer. These Regulations were introduced to ensure that an employee who was a member of an occupational pension scheme with the transferor had these rights transferred.  The transferee was then obliged to ensure that the employee was eligible to become an active member of an occupational pension scheme which met certain prescribed standards.  The Government does not believe these Regulations clearly set out the policy intention to allow the transferred member the right to choose the rate of contribution to the scheme.  The amendment is designed to confirm the right of the employee to choose the level of their contributions which must be matched by the employer up to a maximum of 6%.  The Regulations will also be amended to allow the transferee employer to meet the prescribed standard by matching the contributions which were paid by the transferor immediately prior to the transfer as an option to matching the level of contributions chosen by the employee.  The consultation on this closes on 5th April 2013.
  • ACAS has produced a draft code on flexible working as part of the proposals in the Children & Families Bill, consultation on which closes on 20th May 2013.  The changes to flexible working requests will merely require the employer to consider the request in a reasonable manner.  The key points of the draft code are :-
    • The employer must arrange a meeting with the employee to discuss the request as soon as possible after receiving it in writing, unless it agrees the request.
    • The employee should be allowed to be accompanied by a work colleague, and told this, before any meeting.
    • The meeting should take place privately.
    • The approach to a request for flexible working should be on the presumption that they will be granted (which may prove very problematic for a number of employers).
    • The employer must carefully weigh the benefits of the request for both employer and employee against the costs of implementing them without discriminating against the employee.
    • The employee must be informed of the decision in writing as soon as possible.
    • The rejection of any request must be for a business reason set out in the legislation i.e. those currently in existence.
    • The employee must be allowed to appeal.
    • All requests and appeals should be dealt with within three months from receipt unless the employee agrees an extension of this period.

The only appreciable difference appears to be the removal of statutory time limits.  The code does not discuss good practice but ACAS intends to produce a non-statutory “good practice” guide.

  • The Children & Families Bill had its first reading on 4th February 2013.  The content of this was commented on in detail in the November/December 2012 edition of the Update.
  • The European Court of Human Rights, in handing down its judgment in Eweida and Others v UK (commented on in the January Edition of the Update) has now published guidance to help employers understand the implications of the decision.  The good practice guide is designed to assist employers to understand how to comply with the Court’s judgment and specifically addresses the following :-
    • How will an employer know if a religion or belief is genuine
    • What kind of religion or belief requests will an employer need to consider
    • What steps should an employer take to deal with a request
    • What questions should employers ask to ensure their approach to religion or belief request is justified
    • Do employees now have a right to promote their particular religion or belief at work
    • Can employees refrain from work duties

The guidance also includes examples of requests and how they might be dealt with.  It suggests that employers should only question a belief in exceptional circumstances and should take all requests seriously.  The guidance can be found at https://www.equalityhumanrights.com/advice-and-guidance/guidance-for-employers/religion-or-belief-new-guidance-february-2013

  • The Government has published consultation on the administration of the proposal for shared parental leave and pay.  It sets out how the scheme will work in practice and describes it as “flexible” parental leave and pay to distinguish it from the EU Right to Unpaid Parental Leave which must also be taken flexibly.  The consultation closes on 17th May 2013.  It will cover specifically the following :-
    • Anti-natal appointments
    • Paternity leave and pay notice
    • Eligibility for shared parental leave
    • Giving notice to an employer about ending of maternity leave
    • Time limit on using the shared parental system
    • Keeping in touch (KIT) days
    • Right to return to the same job
    • Adoption

Details of the proposals for consultation are available upon request.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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