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Where we are with the employment law reforms

This year the Government have forgotten their policy of only introducing changes in April and October, which has traditionally provided employers the opportunity to catch up. So far, 2013 is expected to be the year that:

– Shortens the consultation period for collective redundancies of more than 100 people from 90 days to 45 days and to include employees with fixed term contracts into the mix. The draft regulations have set the trigger date for the new consultation period is where the proposal to make more than 100 people redundant occurs on or after 6 April 2013.

– Will introduce the new “employee-owner” status employment contracts. It is envisioned that businesses will be able to start using them from April 2013 however no firm date has been announced.

– Introduces tribunal fees: it currently looks like the fees will be introduced in July 2013. A claimant will have to lodge a fee to commence their claim and a further fee for a hearing to be listed. The fees will range between £160 to start a simple low value claim (for example for unpaid wages) and £950 for a hearing in a more complex claim (there will be relief for claimants with low or no incomes). This change is likely to be welcomed by employers as they hope it will deter claimants who have weak cases.

– Settlement agreements are introduced to replace compromise agreements, again it is envisioned that this will be implemented in the summer. No tariff will be set for the appropriate level offer, but guidance will set out the factors to be taken into consideration when making an offer. ACAS are to produce optional template letters which can be used to offer a settlement and a model agreement. Further ACAS has been fortunate enough to be assigned the task of providing a code of practice which will address thorny issues such as what amounts to “improper behaviour” or “undue pressure” by the employer.

Further the consultation has started on:

1. The implementation of a compulsory early conciliation scheme (Early conciliation: a consultation on proposals for implementation), whereby claimants will have to refer themselves to ACAS for early conciliation before lodging a claim. It is worth noting that (a) it will not be compulsory to go through with conciliation (b) ACAS will only have to make “reasonable attempts” to make contact with parties and (c) the claimant does not have to detail their prospective claims on the referral form. The proposal is once a request has been made, ACAS have a month to make contact with the parties, ascertain the details of the claim and have meaningful discussions with the parties to resolve the matter. For early conciliation to have any success will heavily depend on the resources made available to ACAS. If you have an opinion on whether the proposed process will be a friend or foe make sure you submit your response by 15 February.

2. The application of TUPE (Transfer of Undertakings (Protection of Employment) Regulations (TUPE) 2006: consultation on proposed changes). The proposals include abolishing the service charge rules and the necessity for OldCo to provide NewCo with the relevant employee information may cause uncertainty rather than clarity. However the proposal to include a change in the location of the workforce as an Economic, Technical or Organisational (ETO) reason and aligning the rules on collective consultation for redundancy with those for TUPE to allow both to be covered by one consultation are much more sensible. Whether you are a TUPE lover (there may not be very many of you) or hater, this is your opportunity to have your say, the consultation ends on 11 April.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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