Heads Up: where exactly are we with all this employment law reform?

If Tony Blair said that his three priorities in government were ‘education, education, education’, you could be forgiven for thinking that the Coalition’s priority is ‘reformation, reformation, reformation’.  Alec Bennett provides a ‘heads up’ on where we are with the current slew of proposals, reviews, and consultations.

Employment tribunal fees

The Government published its response to the consultation, Charging fees in the Employment Tribunal and Employment Appeal Tribunal on 13 July 2012 and announced that there will be two fees payable by claimants; an initial “issue fee” when they lodge a claim and a “hearing fee” prior to a listed hearing.  Please see our July update for more information.

Discrimination questionnaires and tribunal recommendations consultation

On 15 May 2012 the Government Equalities Office published a consultation seeking views on:

• reducing ‘red tape’ in relation to discrimination questionnaires; and
• reducing employment tribunals’ power to make ‘recommendations’ following a finding of discrimination.

The consultation closed on 7 August 2012. 

Equality Act 2010: third-party harassment provisions

On 15 May 2012, the Government launched a consultation on its proposal to remove the third-party harassment provisions from the Equality Act 2010. These provisions currently require employers to take reasonable steps to protect employees from third-party harassment, but the Government feels that these provisions are unnecessary.

The consultation closed on 7 August 2012.

Modern Workplaces consultation: flexible parental leave, flexible working, annual leave and equal pay

On 16 May 2011, the Government published its Consultation on Modern Workplaces. Key proposals include:

Flexible parental leave

• Unpaid leave for fathers to attend antenatal appointments.
• An 18-week period of maternity leave for mothers, followed by a new 34-week period of shared parental leave.

Flexible working

• The right to request flexible working to be extended to all employees with 26-weeks' continuous employment.
• New requirement for employers to consider requests "reasonably".
  

Annual leave

• Workers who are unable to take annual leave during one holiday year will be able to carry unused leave over to the next holiday year (in line with European case law).
• Allow leave which is untaken due to absence on maternity, adoption, parental and paternity leave to be carried over into the next leave year.
  

Compulsory pay audits

• New power for employment tribunals to order employers to conduct and publish a pay audit if it is found to have breached the Equality Act 2010, either by discriminating because of sex in relation to non-contractual pay, or by breaching the equality clause in relation to contractual pay (an equal pay claim).

On 14 June 2012, the Government finally published its response in respect of the compulsory pay audit part of the consultation. The Government has decided to proceed with the proposal to give employment tribunals power to order pay audits where an employer is found guilty of gender discrimination in relation to contractual or non-contractual pay matters and where they consider there may be continuing or likely discrimination.

Proposed changes to the collective redundancy rules

On 21 June 2012, BIS launched a consultation on proposed changes to the rules on collective redundancy consultation based around three objectives:

• Reduction of the 90-day minimum consultation period to either 30 days for all collective redundancies or 45 days for planned redundancies of 100 or more employees.
• The introduction of a new non-statutory code of practice to address key issues.
• Review of existing government guidance to ensure that it is accurate and accessible.

The Underhill review of Employment Tribunal Rules

On 29 June Mr Justice Underhill, the outgoing President of the Employment Appeal Tribunal in England and Wales, submitted his recommendations on reform of the Employment Tribunals Rules of Procedure, together with draft new tribunal rules.

BIS launched a consultation on 14 September 2012, seeking views on the draft rules and focusing on a number of issues, including:

• The idea of Presidential Guidance to manage parties’ expectations and ensure consistency in case management.
• The proposal for a preliminary "paper sift" stage incorporating a strike-out power.
• Whether there are disadvantages to removing the £20,000 cap on the assessment of costs awards by a tribunal.
• How the problem of non-payment of tribunal awards could be addressed.
• New draft ET1 and ET3 forms.

The consultation lasts until 23 November 2012.

Settlement agreements

The Resolving Workplace Disputes consultation, published in November 2011, put forward a number of proposals for reform of compromise agreements.  Two ideas that are to be implemented, without further consultation, are:

• Compromise agreements are to be renamed "settlement agreements".
• Offers made, or discussions held, with a view to settlement, will not be admissible in evidence in an ordinary unfair dismissal case.

These changes are being taken forward in the Enterprise and Regulatory Reform Bill 2012-13.

On 14 September 2012 BIS published its further consultation, Ending the Employment Relationship, which seeks views on a number of proposals to encourage greater use of settlement agreements.

Key proposals are:

• Whether there should be a statutory Acas code of practice on settlement agreements.
• An optional model settlement agreement with guidance notes (set out in draft at Annex 2)
• Optional model letters that employers could use in a variety of situations to propose terms of settlement (set out in draft at Annex 1).
• Whether there should be a "guideline tariff" to help parties set the amount of any severance payment.

The consultation closes on 23 November 2012.

TUPE 2006

On 14 September 2012, the Government published its response to its call for evidence on the effectiveness of TUPE 2006.  There will now be a period of "policy design", in which the Government will consider a number of suggested ideas including:

• Whether the "service provision change" provisions should be retained or repealed.
• Whether liability for employees should pass entirely to the transferee as now, or be held jointly and severally by transferee and transferor.
• Whether employee liability information should be provided earlier to the transferee.
• Whether an amendment to TUPE would be possible to ensure that a change of location of the workplace is capable of constituting an economic, technical or organisational reason entailing changes in the workforce.

Sickness absence review

A major review of workplace sickness absence, Health at work: An independent review of sickness absence, was published on 22 November 2011.

Key proposals include:

• Employees who have been absent from work for more than four weeks should be referred to a new Independent Assessment Service who would provide an in-depth assessment of the employee's physical and/or mental health and, where appropriate, will advise the employer on how to support the employee to return to work.
• Fit notes should be revised so that an individual's capacity to return not only to their own job, but to work more generally, is considered.
  • After a 20-week absence, employees should be considered for a job-brokering service that will seek employment opportunities beyond their current employer.

The Government’s response is due to be published later this year.

48-hour week for doctors

In August 2010 it was reported that the Government will review the 48-hour working week limit for doctors, set by the Working Time Directive.  This was following a survey by the Royal College of Surgeons which found that 80% of respondents felt hospitals were much less safe since the application of the 48-hour working limit to junior doctors in August 2009 and that the rules were placing patients' lives at risk.