1.Employee Shareholders
Employee shareholders in the new Growth and Infrastructure Bill
- New category of employee
- Law by April 2013
- Give up rights for ordinary UDL, SRP, time to train & right to request flexible working
- Longer notice when returning from parental leave
- Overwhelmingly coldly received and 80% of employers said it would not affect recruitment
- How will ET deal with claims where value of the shares is said to be <£2,000
- Additional rights: dividends, voting, transfer - can these be limited?
- Applied as lever in the workplace?
- For high risk takers only?
2. Whistle Blowing
Amendment to s.43B ERA
- Relates to Qualifying diclosure
- Worker must reasonably believe it to be in PI
- Parkins v Sodexho and hte problem of employees contractual rights
- Protections for whistle-blowers from bullying subject to defence of reasonable steps
- Good faith requirements to be removed with power to reduce compensation by up to 25%
- ERRB 2013
- Possible settlement by ACAS first with a certificate stating not possible or a prescribed period has expired
- New schedule to the 2004 rules
- Practice Directions from the President
- April 2013 for all
- Removal of liability for harassment by third party: s.40(2)-(4)
- Abolishing of questionnaire procedure: s.138
- Repeal of ET's power to make wider recommendations: s.124(3)(b)
- Repeal of all March 2013
A new s.111A ERA 1996 is intended for ordinary UDL claims by April 2013
- The new name for compromise agreements
- Past problems with 'without prejudice' negotiations and the need for a dispute for them to bite against
- Pre-termination negotiations will be inadmissible unless there has been improper behaviour which the ET considers it just to take into account
- Statutory CoP to deal with improper behaviour
- Auto UDL, discrimination, breach of contract not covered
- Therefore, rules only apply in cases where there are no claims parallel to ordinary UDL
- Problems of hearing the evidence before declaring inadmissible - becomes then a question of weight
- Improper behavour e.g. bullying, language that is discriminatory
- Relevant to cases of poor performance where employers want to avoid lengthy performance management
- Possible substitution of the current maximum figure (£72,300) with either:
- (a) specified amount with a statutory floor and ceiling based on annual median earnings, currently about £26,000 (the ceiling would be no more than 3 times the median figure), or
- (b) the lower of either a specified amount or a specified number of week's earnings which cannot be less than 52
- Reasons for this not credible (i.e. the ceiling is too high). There has been an inflationary catch-up since 1999.
- Disproportionately affect higher earners/older workers/those out of work after 52 weeks
It is proposed in the Bill that, where a tribunal considers that an employer has
a). Breached an employee's right(s); and
b). The breach has 'aggravating features'
It may impose a financial penalty.
The penalty shall be not less than £100 and not more than £5,000 and is payable not to the employees but to the Secretary of State. If paid within 21 days the penalty is effectively discounted by 50%.
The Bill is expected to receive Royal Assent in April 2013.
Comment
In the consultation document the Government deals shortly with this and says that this is intended to deal with situations where the employer has acted with malice or negligently, nto simply inadvertently. It must be expected, that, without further guidance (and none is specifically proposed on this), allegations of aggravating factors will become commonplace, partly no doubt as a means of imposing greater pressure in litigation but also as a result of the uncertainty of what is meant by the term. Again it may take some time before case law offers guidance.
7. Parental Leave
2015
- Flexible parental leave will be introduced.
- Default position remains: mothers entitled to 52 weeks' maternity leave
- Elligible mothers to receive statutory maternity pay for 39 of these 52 weeks
- Paternity leave & pay will continue to last for 2 weeks for eligible fathers
To qualify, each parent must meet the criteria. These are proposed to be the same as those for ordinary paternity leave - 26 weeks' continuous employment by the 15th week before the due date.
Alternatively, parents can pick and choose specified blocks of parental leave of no less than one full week over that 50 week period. They can take the leave separately or, similar to Scandanavian countries, they can take time off at the same time. The leave will be paid at the usual statutory rate (or more if the employer offers enhanced payments).
2013
- The current right to unpaid parental leave will remain, but will increase from 13 to 18 weeks to comply with European requirements.
- Child's age limit for parents to take such leave will increase from 5 to 18 years old
Carl Fender
Regency Chambers
March 2013
