Webinar: Hot Employment Law Issues in 2014 Zelda Garbett and Laura - - PowerPoint PPT Presentation

39 Offices in 19 Countries

Webinar: Hot Employment Law Issues in 2014

Zelda Garbett and Laura Oxley 25 March 2014

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Today’s presenters

zelda.garbett@squiresanders.com Senior Associate, Labour & Employment, Manchester laura.oxley@squiresanders.com Senior Associate, Labour & Employment, Leeds

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Employment Law in 2014 – what’s in store?

• Another busy employment law agenda for 2014
• Key issues for employers during 2014, include:
• Flexible working
• Holiday pay
• Collective redundancy consultation

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Flexible working

• The right to request flexible working will be extended to all

employees

• The rigid statutory procedure for handling requests will be

abolished

• New Acas statutory Code of Practice and Guidance
• Implementation date – 30 June 2014

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Polling slide

Does your organisation currently consider requests to work flexibly from all employees?

• Yes
• No

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• Who can make a request?
• Any employee with at least 26 weeks’

continuous service

• Still only 1 request in any 12-month period
• What changes can be requested?
• Change to working hours
• Change to times of working
• Working from home

A reminder of the basics

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The new procedure for handling requests

Employer receives an application for flexible working Employer must consider the request. The employer should discuss the request with the employee Employer must inform employee of its decision. This should be in writing Employer should allow employee to appeal against decision Employer should consider

• appeal. The employer

should discuss the appeal with the employee Employer should inform employee of its decision. This should be in writing Employer must inform employee

• f its decision

Employer and employee make arrangements for new working pattern

Request is accepted Request is rejected

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• An application must still be made in writing

and contain certain information, e.g. the flexible working pattern applied for, what effect the employee thinks the change will have, etc.

• The 8 permissible business reasons for

rejecting an application will remain the same

• Employers will be able to treat an

application as withdrawn if the employee “without good reason” fails to attend a meeting (including an appeal) or a rearranged meeting

• No statutory right to be accompanied, but it

will remain good practice to offer this

The new procedure for handling requests

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Frequently asked questions

• Can we use a trial period?
• Yes
• What changes should we make to our flexible working policy?
• Ensure any policy pretty much reflects the process set out in the Acas

Code

• Consider retaining timescales to keep the process on track
• How do we deal with competing requests?
• Not required by law to make value judgments about the most

deserving request

• Consider each request on its merits
• Bear in mind risk of discrimination claim

if request is rejected

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Holiday pay

Introducing Pete:

• Pete works for ABC plc as a warehouse operative
• Under his contract – required to work 35 hours per week
• Pete may also be required to work overtime “when necessary”
• Pete regularly works 50+ hours per week
• Pete receives additional pay for any overtime worked

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Polling slide

How should his employer calculate his holiday pay?

• By reference to his basic salary?
• By reference to his actual pay?

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Holiday pay – what does the legislation say?

• Article 7 of the Working Time Directive – four weeks’ “paid” leave
• Regulation 16 of the Working Time Regulations 1998 – a

“week’s pay” for each week’s leave calculated in accordance with sections 221 – 224 of the ERA 1996

• ERA provisions are complicated and vary depending on whether

an employee works “normal working hours” or not

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Holiday pay – what does the legislation say?

• “Normal working hours” – an

employee is entitled to be paid his normal basic weekly pay (Section 221)

• No “normal working hours” –

an employee is entitled to be paid his average weekly pay in the applicable 12 weeks (Section 224)

• If an employer has a

contractual duty to provide

• vertime and an employee

has a contractual duty to do it the employee’s “normal working hours” would include the overtime worked In other words, when calculating a week’s pay for holiday pay purposes, employers do not have to take into account any overtime, unless it is contractually guaranteed

• Bamsey & ors v Albon Engineering and Manufacturing Plc [2004]
• Crossland v Corps of Commissionaires Management Ltd [2010]

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Key cases

Case Ruling Status BA Plc v Williams [2012] Supreme Court ruled that workers are entitled to receive their “normal remuneration” during annual leave – includes remuneration “intrinsically linked to the performance of the tasks” Neal v Freightliner Ltd [2012] ET ruled that a worker’s holiday pay should take into account his overtime payments Recently joined with Fulton v Bear Scotland Lock v British Gas Trading Ltd [2013] Advocate General said that a worker’s holiday pay should take into account commission payments Waiting for the CJEU’s decision Elms v Balfour Beatty [2013] ET ruled that a worker’s holiday pay should be calculated by reference to his basic salary

• nly

EAT hearing was due to take place on 25 February 2014 – case settled before this Fulton v Bear Scotland Ltd [2013] ET ruled that a worker’s holiday pay should include overtime, standby payments, emergency call-out supplements Scottish EAT hearing on 9/10 April 2014 – joined with Neal v Freightliner

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Holiday pay

• So where does this leave employers and what

should they be doing now?

• Monitor progress of these cases
• Carry out review of your holiday pay arrangements
• These decisions only affect holiday pay for four weeks

required by the Directive

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Collective redundancy consultation

• The “Woolworths” case – latest position
• EAT controversially ruled that the duty to consult collectively is

triggered whenever an employer is proposing to dismiss as redundant 20 or more employees within a 90-day period, regardless of where the employees work

• The Court of Appeal has referred the matter to the CJEU

– The meaning of “establishment” – Whether the Directive has direct effect against the Secretary of State

Action point: If your company is proposing to dismiss 20 or more employees as redundant within a period of 90 days or less, irrespective of where those employees are based, then you must still ensure you comply with your collective consultation obligations under s.188 (i.e. 30 or 45 days), or run the risk of a protective award (90 days’ pay) being made against you.

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31 January 2014 - TUPE changes

• Service Provision Changes: The activities carried out after the

transfer must be “fundamentally the same” as the activities carried out before

• Employee Liability Information: This must be provided 28 days

before the transfer – for transfers on or after 1 May 2014

• Pre-transfer redundancy consultation: Transferees can now

consult about proposed redundancies before the transfer takes place, provided certain conditions are fulfilled

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31 January 2014 – TUPE changes

• Restrictions on varying contracts: Variations will now only be

void if the sole or principal reason for the variation is the transfer

• Dismissals: Dismissals will only be automatically unfair if the

sole or principal reason for the dismissal is the transfer

• Collective agreements: Only those in force at the time of the

transfer will bind transferees

• Micro-employers (fewer than 10 employees): Can inform and

consult with employees directly where there are no existing representatives - from 31 July 2014

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10 March 2014 – Changes to “spent” convictions

• Amendments to the Rehabilitation of Offenders Act 1974
• Aim is to make it easier for ex-offenders to find work
• Changes made include increasing the length of the maximum

sentence capable of becoming spent and reducing most rehabilitation periods

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6 April 2014 – Goodbye discrimination questionnaires

• Repeal of discrimination questionnaires – aim is to reduce

administrative burden on employers

• Be careful – claimants can still make enquiries – just not under

statutory mechanism

• New Acas Guidance on “Asking and responding to questions of

discrimination in the workplace”

Action point: Employers should continue to consider any requests for information (whether as part of pre-action request

• r part of Tribunal proceedings)

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6 April 2014 – Pre-claim Acas Conciliation

• Compulsory pre-claim Acas conciliation
• Will apply to claims presented on or after 6 May 2014
• Claimants will generally be required to contact Acas to discuss

“Early Conciliation” before they can bring a claim

• Acas will have up to one month (which may be extended by two

weeks) to facilitate a settlement

• Conciliation period will “stop the clock” on limitation periods
• Prospective respondents will also be able to contact Acas to

request Early Conciliation

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6 April 2014 – Financial penalties for employers

• Financial penalties for employers: Financial penalties for

employers that breach a claimant’s employment rights if Tribunal concludes that their behaviour in committing the breach had one

• r more “aggravating features”
• Any financial penalty imposed will be set at 50% of the

claimant’s financial award, but not less than £100 or more than £5,000

• This will be in addition to any damages awarded to the claimant,

and would be payable to the Government. There will, however, be a 50% discount if the employer pays within 21 days of receiving written notice of the Tribunal’s decision

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Other legislative changes

Date Proposed change Summary 6 April 2014 SSP records and Percentage Threshold Scheme SSP record-keeping

• bligations will be

abolished/ Scrapping Percentage Threshold Scheme 1 October 2014 Equal pay Tribunals to be given power to order employers to carry

• ut equal pay audits

6 April 2015 Shared parental leave Replacing maternity, paternity and adoption leave with system of shared parental leave

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And finally, new rates to be aware of….

From 6 April 2014, new Tribunal limits come into force:

• Maximum compensatory award for “ordinary” unfair dismissal - £76,574
• r 52 weeks’ pay, whichever is the lower
• A week’s pay for calculating Statutory Redundancy Payments and basic

award - £464 These new limits will apply to dismissals on or after 6 April 2014

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Questions and Answers

zelda.garbett@squiresanders.com Senior Associate, Labour & Employment, Manchester laura.oxley@squiresanders.com Senior Associate, Labour & Employment, Leeds

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Disclaimer

• The information contained in this presentation is for general

information purposes only and should not be construed as giving the ground for any action or omission in connection with the above material.

• This presentation should not be construed as professional

advice on legal or any other matters.

• The examples given in this presentation are described with a

level of detail that does not provide for their implementation without additional comprehensive review with due regard to specific relevant facts and circumstances.

• The application of laws and statutes may vary depending on

particular circumstances.

• Squire Sanders does not assume liability for any damage that

may be caused to anyone as a result of any action (or omission)

• n the basis of the information contained herein.

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Webinar: Hot Employment Law Issues in 2014

Zelda Garbett and Laura Oxley 25 March 2014