A Guide to Employment Law in 2011

Employment Law in 2011 - A month-by-month guide

Monday 22 August, 2011

Your guide to recent and future changes in employment law and current consultations.
Date last updated: 19 December 2011

EMPLOYMENT LAW CHANGES – A MONTH BY MONTH GUIDE

APRIL

New start-ups and small employers are exempt from new legislation

As announced by the government in The Plan for Growth, published alongside the Budget on 23 March 2011, as of 1 April 2011 new start-ups and small employers are now exempt from any new domestic legislation brought into force in the next 3 years.

 

Additional paternity leave and pay available
Additional paternity leave and pay allows fathers to benefit from up to 26 weeks' additional paternity leave if the mother returns to work before using her full entitlement to statutory maternity leave. The new right is now available to parents as it applies who those with an expected week of childbirth beginning on or after 3 April 2011. 

 

Maternity, paternity and adoption pay
The standard rates of statutory maternity, paternity and adoption pay have increased from £124.88 to £128.73 per week as of 3 April 2011. Statutory sick pay also increased from £79.15 to £81.60 per week as of 6 April 2011. 

 

Statutory maternity pay: small employers’ relief

Small employers can recover 100% of their statutory maternity pay from HMRC with compensation.  From 6 April 2011 the compensation for small employers has reduced from 4.5% to 3%.

 

Equality Act

The Equality Act 2010 is being implemented in stages. The general public sector equality duty came into force on 5 April 2011. 

The positive action in recruitment and promotion provisions came into force on 6 April 2011. Employers are now allowed, in defined circumstances, to recruit or promote a person with one protected characteristic in preference to another person who does not have the protected characteristic, provided that they are equally qualified for the post. 

Transitional provisions for abolition of default retirement age
As of 6 April 2011, employers are now prohibited from issuing new notifications of retirement using the statutory retirement procedure.

 

Right to request time off for training
The right for employees to make a request in relation to study or training, which currently applies to employees in organisations with 250 or more employees, was due to be extended to all employees from 6 April 2011. However on 11 August 2010, the government launched a 12-week consultation on the future of the right to request time to train and on 16 February 2011 the Department for Business, Innovation and Skills issued a press release announcing that the right to request time off for training was not going to be extended to all employees from April 2011.

Extension of the right to request flexible working

On 6 April 2011, the right to request flexible working was to have been extended to parents of children under 18 (it currently applies to parents of children aged under 17, or 18 if the child is disabled). This was then repealed to avoid red tape experienced by small businesses.

 

EHRC Codes of Practice

On 6 April 2011 three statutory Codes of Practice came into force to provide guidance on the Equality Act 2010.

 

Tax concession for legal fees

The tax concession A81 allowed employees’ legal costs, where their employment is terminated, to be paid by the employer tax free either if they are ordered to be paid by a court or tribunal, or where they are paid directly to the employee’s lawyer under a settlement agreement.

This concession was withdrawn from 6 April 2011 and replaced by legislation.  Although the legislation was designed to reflect the previous concession it was drafted more narrowly and appears not to cover cases settled through an ACAS COT3 agreement or though a compromise agreement if Employment Rights Act 1006 claims are not being settled. However, HMRC confirmed the concession may still be used for any compromise agreements and for COT3s pending an amendment to the legislation and in December 2011 it issued a consultation on amending the legislation to ensure all settlements are covered.

 

Limits to non-EU economic migration

In April 2011, new measures were brought in which affect migrants from outside the EU. These measures include:

• An annual limit of 20,700 migrants under Tier 2 (general);
• Tightening intra-company transfer route;
• Abolishing existing Tier 1 (general) category and replacing it with a new Tier 1 (exceptional talent) category. This will be limited to 1,000 people.

 

Changes under Tier 2 immigration

From April 2011, 8 occupations were removed from the shortage occupation list. This means that the number of jobs available to non-EU migrants will be reduced from 500,000 to 230,000. 71 jobs have also been removed from the 192 jobs listed on the skilled worker list. This means the number of jobs available for sponsorship is now reduced to 121.

 

Changes to the immigration rules

As of 6 April, various changes to the Immigration Rules now apply. These include:

• Unspent convictions will no longer apply to applicants;
• The same income criteria will apply to Tier 1 (general) migrants as applied when they last extended their permission to stay;
• The appropriate rate as in the codes of practice must be paid to Tier 2 (general) and Tier 2 (intra-company transfer) migrants on work permits;
• The Life in the UK test must be passed by Tier 1 and Tier 2 migrant;
• Tier 1 (investor) and Tier 1 (entrepreneur) migrants who meet the required criteria can use an accelerated route.

 

MAY

 

Revised disability guidance

On 1 May 2011 the revised disability guidance came into force taking into account changes introduced by the Equality Act 2010 including:

• The removal of the list of “capacities;”
• The introduction of the concepts of protected characteristics, perceived disability and disability by association.

 

JULY

 

New corporate offence of failing to prevent bribery
The Bribery Act 2010 introduced a corporate offence of failing to prevent bribery by persons working on behalf of a business. It was due to come into force in April 2011 but, following a review by the new Government, final guidelines were not published until 30 March 2011. The Act came into force on 1 July 2011.

OCTOBER 

 

New rules on equal treatment for agency workers
The Agency Workers Regulations 2010 have come into force entitling agency workers to equal treatment in respect of basic employment conditions after 12 calendar weeks in a given job, including pay and holidays, from 1 October 2011.  They are also entitled to equal access to on-site facilities and access to information about permanent jobs from day one. Pregnant and breast-feeding mothers will also have increased rights.

 

National minimum wage rise
The national minimum wage rose on 1 October 2011. The following increases took effect:

• The standard (adult) rate (workers aged 21 and over) rose to £6.08 per hour (from £5.93).
• The development rate (workers aged between 18 and 20) rose to £4.98 per hour (from £4.92).
• The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) rose to £3.68 per hour (from £3.64).
• The rate for certain apprentices (those under 19 years of age or those aged 19 and over but in the first year of their apprenticeship) rose to £2.60 per hour (from £2.50). All other apprentices continue to receive the national minimum wage at the appropriate age rate.
• The accommodation offset rose to £4.73 per day from £4.61.

 

CONSULTATIONS IN 2011

 

The future of the right to request time to train policy

(Status: Closed with response)

The legal right to allow workers in businesses with more than 250 employees to request time off to take up relevant training came into effect from 6 April 2011 (see above).

 A consultation on the future of this right took place from 11 August 2010 to 15 September 2010.

The response was published on 6 July 2011 and it was decided not to extend the right to all employees.  The response can be found at http://www.bis.gov.uk/assets/biscore/further-education-skills/docs/c/11-1052-consultation-right-to-request-time-to-train-regulations-response.pdf. 

 

Reform of the Equality and Human Rights Commission

(Status: Closed with responses)

In March 2011, the Government Equalities Office published a consultation to reform the Equality and Human Rights Commission.

 Consultation included:

• Clarifying the EHRC’s remit to focus on core functions;
• Cutting funding for projects beyond the EHRC’s remit; and
• Requiring the EHRC to have an annual business plan and become subject to the same spending rules as other public bodies.

 Consultation closed on 15 June 2011. The Equality and Diversity Forum and various other organizations have submitted responses which can be found at http://www.edf.org.uk/blog/?p=10504

 

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

(Status: Closed awaiting response)

On 16 May 2011, the government published its Consultation on Modern Workplaces which proposed:

Flexible parental leave

• Unpaid leave for fathers to attend antenatal appointments
• An 18 week period of maternity leave, 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
• A new requirement for employers to consider requests reasonably

Annual leave

• To bring UK law into line with ECJ judgments in Stringer and Pereda so workers can carry over unused leave to the following year
• Amend the Working Time Regulations 1998 to allow untaken leave due to absence on maternity, adoption, parental and paternity leave to be carried over
• Amend the current prohibition of “buying out” statutory leave to allow employers to buy out the additional 1.6 weeks’ leave entitlement under the Working Time Regulations
• Require employees to carry over all of part of the additional 1.6 weeks’ leave entitlement under the Working Time Regulations in cases of genuine overriding business need

Compulsory pay audits

• A new power for tribunals to order employers to carry out 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

 The consultation ended on 8 August 2011 and the government has said that it will be responding early in 2012.

 

Tribunal Reform

(Status: Closed with Response 

On 27 January 2011 BIS launched a consultation on radical reforms to the tribunal system.

Proposals include:

• Raising the qualifying period for unfair dismissal to two years.
• Introducing compulsory pre-claim Acas conciliation.
• Charging claimants a fee to bring a claim.
• Support for "Calderbank"-style settlement offers.
• Wider powers to strike out a claim or order payment of a deposit.
• Raising the limit on costs awards from £10,000 to £20,000.
• Employers who lose at tribunal to pay a fine of up to £5,000 to the Exchequer.

 Consultation closed on 20 April 2011 and the Response was issued in November 2011

 

Exceptions to the age discrimination ban for goods and services

(Status: Awaiting response)

In March 2011, a consultation was launched by the Government Equalities Office to identify exceptions to the prohibition of age discrimination under the Equality Act 2010.

This will include:

• The provision of services;
• The exercise of public functions; and
• Private clubs and other associations.

 The government intends to lay an Order before Parliament in 2011 with the provisions coming into force in April 2012.

 Consultation closed on 25 May 2011 and we are currently waiting for the response.

Calls for evidence on Collective Redundancy Consultation and TUPE

(Status: Open)

The Government has asked employers for their views on operating within the current collective redundancy consultation and TUPE laws and is considering whether any changes are needed.   Response are reqired by 31 January 2012

Consultation on tax treatment of legal fees

(Status: Open)

The Government has issued a consultation on making changes to legislation dealing with the tax treatment of legal fees paid by an employer on termination. followiong concerns that the legislation is drafted too narrowly.  Responses are required by 28 February 2012.

Consultation on the level of employment tribunal fees

(Status: Open)

In December 2011, the Government issued a consultation on the level of fees for employment tribunal claims. Responses to the Consultation on Charging Fees in Employment Tribunals are required by 6 March.

This list is updated throughout the year and more detail will be made available on the website once they become known.

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