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Recent Developments in Employment Law

14th September 2013

It is often difficult for employers to keep up to date with legislation changes affecting the workplace. A summary of the changes that have occurred over the last six months is therefore provided below:

Collective Redundancy Consultation

The minimum period of employee consultation when making 100 or more redundancies in a period of 90 days or less has been reduced from 90 to 45 days.

Disclosure and Barring Service (DBS)

DBS checks (formerly known as Criminal Record Bureau checks) are now portable, which means that it is not always necessary for an individual to apply for a new criminal record check each time they take on a new role. Where an individual subscribes to the DBS Update Service, an employer can go online (with the individual’s consent) and carry out a free criminal record check, known as a status check. Note also, that the DBS is now removing certain specified old and minor offences from criminal record certificates.

Unfair Dismissal

The qualifying service requirement to bring an unfair dismissal claim no longer applies where it is alleged the principal reason for dismissal relates to an employee's political opinions or affiliations.

Whistleblowing

A disclosure no longer needs to be made “in good faith” to receive legislative protection and instead must be made in the “public interest”. Whistleblowers must be protected from harassment from fellow workers. Employers can be held vicariously liable for any detrimental acts carried out by their employees, unless they can show that all reasonable steps have been taken to prevent the detriment.

Checking the Right to Work

Croatia has formally joined the EU. In due course, Croatian nationals will have the right to move, work and settle in the UK without restriction. However, their right to work is currently restricted. These restrictions will apply for an initial period of five years and may be extended. Employers must undertake relevant checks before employment commences, to ensure that ALL new recruits have the necessary permission to work in the UK.

Employment Tribunal Fees

Fees are now payable to lodge either an employment tribunal claim or appeal. Employers can be ordered to repay the claimant’s fee where a claim is successful. The remission system used in the civil courts has been extended to employment tribunals allowing fees to be waived for those on low incomes.

Pre-Termination Confidential Negotiations

New legislation has been introduced to enable employers to offer a settlement agreement (formerly known as a compromise agreement) to an employee even where there is no existing dispute.
The offer and any related discussions will not be admissible in ‘ordinary’ unfair dismissal proceedings, unless the employer behaves "improperly" or places "undue pressure" on an employee to sign an agreement.

Note that claims relating to an automatically unfair reason for dismissal (such as whistleblowing or asserting a statutory right) are not covered under this legislation. Neither are claims of discrimination, harassment, victimisation or other behaviour prohibited by the Equality Act 2010, or claims relating to breach of contract or wrongful dismissal.

Compensatory Award Limit for Unfair Dismissal

A new limit applies to the unfair dismissal compensatory award. A 12 months' pay cap will be applied, although the overall cap on compensation (currently £74,200) remains in place. Awards will therefore be limited to the lower of 12 months’ pay or £74,200. Note that compensation remains unlimited for successful claims of discrimination.

Employee Shareholder Employment Status

A new form of employment status has been introduced where an employee can agree to relinquish certain employment rights in exchange for shares. The employee must receive a minimum of £2,000 worth of shares in the business and, in return, will give up their right to claim unfair dismissal, receive statutory redundancy pay and request time off for study/training.

An employee shareholder agreement will be invalid unless the individual has received independent legal advice prior to entering into the contract. The employer must pay the reasonable costs of that advice regardless of whether the employee then accepts the role.

Further Advice and Support

If you would like further clarification or advice on any of the areas outlined above, please contact our HR Advice Line on 0845 073 0240 who will be happy to assist.


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