Webinar: Hot Employment Law Issues in 2014 Zelda Garbett and Laura Oxley 25 March 2014 39 Offices in 19 Countries
Today’s presenters zelda.garbett@squiresanders.com laura.oxley@squiresanders.com Senior Associate, Labour & Senior Associate, Labour & Employment, Manchester Employment, Leeds 2
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 3
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 4
Polling slide Does your organisation currently consider requests to work flexibly from all employees? • Yes • No 5
A reminder of the basics • 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 6
The new procedure for handling requests Employer receives an application for flexible working Request is Employer must consider accepted Employer and Employer must the request. The employee make inform employee employer should discuss arrangements for of its decision the request with the new working pattern employee Request is rejected Employer must inform employee of its decision. This should be in writing Employer should consider Employer should allow Employer should inform appeal. The employer employee to appeal employee of its decision. should discuss the appeal against decision This should be in writing with the employee 7
The new procedure for handling requests • 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business reasons for rejecting an application will remain the same • Employers will be able to treat an application as withdrawn if the employee “without good reason” fails to attend a meeting (including an appeal) or a rearranged meeting • No statutory right to be accompanied, but it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 8
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 9
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 10
Polling slide How should his employer calculate his holiday pay? • By reference to his basic salary? • By reference to his actual pay? 11
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 12
Holiday pay – what does the legislation say? • “Normal working hours” – an • If an employer has a employee is entitled to be contractual duty to provide paid his normal basic weekly overtime and an employee pay (Section 221) has a contractual duty to do it the employee’s “normal • No “normal working hours” – working hours” would include an employee is entitled to be the overtime worked paid his average weekly pay in the applicable 12 weeks (Section 224) 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] 13
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 Recently joined with Fulton v pay should take into account Bear Scotland his overtime payments Lock v British Gas Trading Advocate General said that a Waiting for the CJEU’s decision Ltd [2013] worker’s holiday pay should take into account commission payments Elms v Balfour Beatty [2013] ET ruled that a worker’s holiday EAT hearing was due to take pay should be calculated by place on 25 February 2014 – reference to his basic salary case settled before this only Fulton v Bear Scotland Ltd ET ruled that a worker’s holiday Scottish EAT hearing on 9/10 [2013] pay should include overtime, April 2014 – joined with Neal v standby payments, emergency Freightliner call-out supplements 14
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 15
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. 16
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 17
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 18
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 19
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 or part of Tribunal proceedings) 20
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 21
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