Eversheds HR Legislation Tracker, Recent and pending UK employment law changes Gill Watkins

1. Legislative change table
Recent and pending UK employment law changes

2. Issue Changes Start date Background/ Implications
Relevant
dates
ACAS Code Possible
 ACAS/ BIS to work on
updating current Code to
clarify certain area s and
improve awareness.
Not known Call for evidence: Dealing with dismissal and
"compensated no-fault dismissal" for micro businesses
briefly floated the idea of creating an alternative
model of the ACAS Code, for small employers. This
was subsequently rejected and modifications proposed
to the current ACAS Code (Response to Call for
Evidence ). A new online helpline service is available.
[Separately, distinct ACAS Codes will arise in respect
of various topics such as settlement agreements,
redundancy consultation, flexible working etc., (see
below).]
Call for
evidence
Commenced
15/03/12
Closed
08/06/12
Response
14/09/12
Agency
Workers
Possible
 Consultation the Conduct of
Employment Agencies and
Employment Business
Regulations 2003.
 Review of the Agency Workers
Regulations 2010
Not known As part of its “Red Tape Challenge” (see below) the
Government conducted consultation in early 2013
over current agency regulation (ie the 2003 Conduct
Regulations). Consultation on reforming the
regulatory framework
During the latter part of 2013 the Government is
additionally expected to review the Agency Workers
Regulations 2010 “to ensure the practical
arrangements necessary for employers and agencies
are as simple as possible”.
Consultation
17/1/13
Closed
11/04/13
Review
late 2013.
Compromise
Agreements
(See
Settlement
Agreements,
below)
Changes in force
 Amendment to s147 Equality
Act 2010 (clearly extending
use of such agreements to
discrimination claims)
Amendment
to Equality
Act 2010 in
force from 6
April 2012
Part of Government Consultation on resolving
workplace disputes looked into current use of
compromise agreements and whether they are under-
used. They are to be re-named Settlement
Agreements and their use reviewed/ extended. (See
Settlement Agreements, below).
Two
Consultations
Commencing
27/01/11 and
14/09/12
Key: Proposed In force Other

3. From 6 April 2012 a small amendment was made to
section 147 of the Equality Act 2010 to ensure
compromise agreements are plainly available in the
context of discrimination claims.
Closed
20/04/11 and
23/11/12
respectively
Response 1
23/11/11
Response 2
17/01/13
Collective
Redundancies
Changes in force
 Reduction of 90 day period to
45 days;
 Exclusion of fixed term
contracts
 Focus on ‘meaningful’
consultation;
 ACAS Guidance to ensure
quality of consultation and
clarify:
-def of “an establishment”;
-what should be discussed, when.
[Only looking at redundancy
consultation for now –review of
how the provisions inter-act with
TUPE will follow.]
6 April 2013 BIS call for evidence on collective redundancy
consultation sought views on the current requirements
and how they are working (or hindering) consultation
in practice.
Formal consultation was launched on 21st
June 2012
and proposed various measures, such as reducing the
90 day min consultation and introducing a Code of
Practice.
BIS Consultation on Collective redundancies
In its Response, the Government confirmed a
reduction in the minimum consultation period to 45
days from 6/4/13. In addition, fixed term contracts
are excluded from collective consultation obligations.
ACAS Guidance aims to clarify the consultation
process.
Call for
evidence
Commenced
23/11/11
Closed
31/01/12
Consultation
Commenced
21/06/12
Closed
19/09/12
Response
18/12/12
Directors’ Pay Changes in force
Increased role of shareholders in
remuneration policies and
payments
1 October
2013
Discussion paper on executive remuneration sought
views on executive remuneration in quoted companies
and how to better align pay with company
performance and achieve greater transparency. Then
followed a
Consultation on executive pay and shareholder voting
rights.
Many of the proposals were incorporated in to the
Enterprise and Regulatory reform Act 2103 which
Discussion
paper
released
19/09/11
Closed
25/11/11
Consultation
Commenced
14/03/12

4. amends provisions of the Companies Act 2006
regarding quoted companies’ disclosure of
directors’ remuneration and increases shareholders’
rights in relation to directors’ remuneration.
Revised Regulations for Large and Medium-sized
Companies and Groups (Accounts and Reports) came
into force on 1 October 2013 and apply where
financial year end falls on or after 30 September
2013.
Closed
27/04/12
Enterprise &
Regulatory
Reform Act
25/4/13
Consultation
Commenced
12/3/13
Closed
25/3/13
Discrimination
Questionnaires
Changes Approved
 Removal of questionnaire
process and current
prescribed questionnaires (by
repeal of s138 Equality Act
2010)
Likely 6 April
2014
As part of the Govt “Red Tape Challenge”, two aspects
of discrimination law became the subject of
consultation:
 Removal of discrimination questionnaires; and
 Extension of ET powers to make recommendations
Govt Equalities Office: Equality Act 2010, a
Consultation.
The Enterprise and Regulatory Reform Act 2013 will
effect the removal of the questionnaires during 2013.
These will be replaced by an informal process and new
ACAS guidance as to how individuals can ask
questions and why employers and service providers
should respond.
Any change to the power of ETs to make
recommendations is to be included in a Deregulation
Bill announced in the Queen’s Speech in May 2013 –
details not yet known.
Consultation
Commenced
15/05/12
Closed
07/08/12
Enterprise &
Regulatory
Reform Act
25/4/13
Employee
Shareholders
Changes in force
 New form of employment
1 September
2013
One of the more controversial proposals by
Government. The new provisions came into force on 1

5. status whereby employment
rights are exchanged for
shares in the business
September 2013 via the Growth and Infrastructure
Act 2013. Detailed requirements must be met for the
new status to apply. Guidance is available: see HMRC
employee shareholder guidance
Equal Pay
audits
Changes Approved
 Compulsory pay audits for
employers who lose equal pay
claims in the ET
October 2014 Part of the Consultation on modern workplaces
invited comment upon whether tribunals should
subject employers who lose equal pay claims to a pay
audit.
The Government's response came down in favour,
prompting the addition of power to order audits to the
Enterprise and Regulatory Reform Act. Further
consultation over how the process will work in practice
is expected before implementation in October 2014.
Consultation
Commenced
16/05/11
Closed
08/08/11
Response 14
June 2012
Enterprise &
Regulatory
Reform Act
25/4/13
Flexible
Working
Proposed
 Extending right to request to
all employees after 26 wks
 Replacing current procedure
with ACAS Code
 ACAS Guidance
 Retaining current business
reasons for rejection and limit
on requests to 1 per year
2014 As part of the far-reaching Consultation on modern
workplaces the Government looked to fulfil its pledge
to extend the right to request flexible working to all
employees, not just parents and carers.
Formal response to consultation as regards the
flexible working aspects was issued on 13 November
2012. It confirms the extension of flexible working
requests to all parents of children under the age of 18
from 2014 and a new ACAS Code of Practice and
ACAS guidance. Further consultation on the detail will
follow in 2013.
In the meantime, ACAS launched a Consultation
regarding its draft flexible working code on 25
February 2013. Consultation closed on 20 May 2013.
Consultation
Commenced
16/05/11
Closed
08/08/11
Response
13/11/12
Acas
Consultation
over Code
Commenced
25/02/13
Closed
20/05/13

6. Parental Leave Proposed
 18 week paid maternity leave
and 2 week paternity leave
 Re-classify remaining leave as
“parental leave”
 Allow concurrent leave
 More flexibility over how leave
is taken (piece-meal or in
blocks)
Increase in unpaid leave
 Rise to 18 weeks
Not before
2015
8 March 2013
As part of its Consultation on modern workplaces the
Government set out some ideas to extend further the
ability for parental leave to be shared.
Formal response to consultation as regards the
parental leave aspects was issued on 13 November
2012. It confirms the extension of shared leave,
enabling fathers to share untaken maternity leave
from 2015. The mother would not necessarily need to
return to work for this right to be exercised.
On 25 February the Government sought to clarify the
proposed mechanics of shared parental leave and pay
in a further consultation paper on the, administration-
of-shared-parental-leave-and-pay. Consultation
closed on 17 May 2013.
From 8 March 2013, unpaid parental leave increased
from 13 to 18 weeks to comply with the revised EU
Parental leave Directive.
Consultation
Commenced
16/05/11
Closed
08/08/11
Response
13/11/12
Consultation
Commenced
25/02/13
Closed
17/05/13
Rapid
resolution
Possible
 Optional rapid resolution
systemfor low value,
straightforward cases;
 Paper-based;
 Determined by non-judicial
Legal Officers;
(See also, Tribunal Procedure
below)
Not known Responses to the Government Consultation on
resolving workplace disputes prompted the
Government to look at a simpler, “fast track” process,
relying on paper-based determination of complaints
by non-judicial Legal Officers. This is currently on
hold.
The Enterprise and Regulatory Reform Act 2013
includes provision to effect the appointment/
additional powers of legal officers but there are no
plans to implement this as yet.
Consultation
Commenced
27/01/11
Closed
20/04/11
Response
23/11/11
Enterprise &
Regulatory
Reform Act
25/04/13
Red Tape
Challenge
Ongoing Employment Law
review
Ongoing This remains a key and ongoing objective of the
Government (see Discussion document) many
Review
Commenced

7. Part of general commitment to
reduce “red tape”. Areas of
discussion included; compliance
and enforcement, letting people
go, managing staff and taking
people on.
proposals being actively pursued
eg:
 Removal of discrimination questionnaires; and
 Extension of ET powers to make recommendations
(see above) Govt Equalities Office: Equality Act 2010,
a Consultation
A Deregulation Bill, expected to progress in the
autumn of 2013, will effect further changes.
3/10/11
Concluded
19/10/11
Consultation
Commenced
15/05/12
Closed
07/08/2012
Settlement
Agreements
(see also,
Compromise
Agreements,
above)
Proposals include:
 Template, simplified form
 Name change to “Settlement
Agreements” (from old-style
“compromise agreements”)
29 July 2013 Part of Government Consultation on resolving
workplace disputes looked into current use of
compromise agreements. A change of name to
“Settlement Agreements” was effected by Enterprise
and Regulatory Reform Act 2013 from 29 July 2013.
The initial Government response indicated it was in
favour of a template, simplified agreement, prompting
further Consultation, Ending the employment
relationship which closed on 23/11/12. There is also a
new ACAS Code of Practice
(as appended to the Response to Consultation).
Guidance is still awaited.
Consultations
Commencing
27/01/11 and
14 /09/12
Closed
20/04/11 and
23/11/12
Respectively
Response 1
23/11/11
Response 2
17/01/13
Enterprise &
Regulatory
Reform Act
25/04/13
Sickness
absence
Proposals
 Employees absent for more
than 4 weeks to be referred
for indep assessment;
 Advisory service to be
By end 2014 Review of the sickness absence systemin Great
Britain commissioned, chaired by David Frost and
Dame Carol Black.
Sickness absence review -terms of reference
Review
Commenced
17/02/11
Published

8. established
 Improved Fit notes guidance;
 Public sector review
The Sickness absence review was published on
21/11/11 and included recommendations such as: the
establishment of an Independent Assessment Service
(IAS) and revised fit note guidance.
The Government response was published on 17
January 2013. It confirms the setting up of a health
assessment and advisory service by the end of 2014,
which would assess fitness to return to work after four
weeks of sickness absence and offer ongoing support.
On 7/3/13 revised guidance on fit notes was
published. Employers are also to be relieved of the
administrative burden of retaining sickness/ SSP
records but no date has been announced yet.
21/11/11
Government
response
17/01/13
Third-party
harassment
Changes in force
 Removal of third-party
harassment liability for
employers (by repeal of
s40(2)-(4) Equality Act 2010)
1 October
2013
The Equality Act 2010 introduced employer liability for
third-party harassment of employees. The Govt sees
this as exceeding European requirements under the
Equal Treatment Directive but also believes it to be
relatively unused.
Home Office Consultation into repeal of third-party
harassment
In the context of its Red Tape Challenge this provision
is repealed under the Enterprise and Regulatory
Reform Act and expected to take effect from 1
October 2013.
Consultation
Commenced
15/05/12
Closed
07/08/12
Enterprise &
Regulatory
Reform Act
25/4/13

9. Tribunal Orders
and Awards
In force
 New formula for rounding up
annual uplifts (in force);
 New penalties for employers
who breach rights;
 Cap on compensatory award
 Greater powers for ET to
make deposit and costs orders
Cap on unfair
dismissal
29 July 2013
Deposit
orders/ costs
awards
25 June 2013
New penalties
in ET for
employers
from 2014.
Part of Government Consultation on resolving
workplace disputes looked into tribunal awards and
concluded greater flexibility is needed.
Proposals included
 Changes to the rounding-up of awards (which
was introduced in February 2013)
 Financial penalties for employers of 50% of the
tribunal award but with a £100 minimum and
£5000 maximum, payable to the Exchequer, not
the claimant but subject to the employer’s ability
to pay (to be implemented in 2014);
 Automatic up-rating of ET awards and Stat Red
Pay.
Part 2 Enterprise and Regulatory Reform Act 2013
includes provision to effect these proposals. In
addition the Act imposes a cap on compensatory
awards at 12 months’ pay or the current maximum
figure on such awards (£74,200 from 1 February
2013) as from 29/7/13. From this date also, the
power of the ET to make deposit orders increased,
permitting such awards for certain aspects of a claim
only. Costs awards will also be available to litigants in
person.
Consultations
Commencing
27/01/11 and
14 /09/12
Closed
20/04/11 and
23/11/12
Respectively
Response 1
23/11/11
Response 2
17/01/13
Enterprise &
Regulatory
Reform Act
25/06/13
Tribunal
Procedure
Proposals:
 Increased use of mediation;
 Early conciliation (via ACAS
pre-conciliation);
 Revised ET Rules to simplify
the system.
 New category of
discrimination in form of
political beliefs
Political belief
protection 25
June 2013
New ET Rules
29 July 2013
Acas early
conciliation
expected 6
April 2014.
Various aspects of tribunal procedure were raised in
the Consultation on resolving workplace disputes .
The Government response in November 2011
prompted the commissioning of a “root and branch
review” of ET practice by Mr Justice Underhill.
Underhill’s report was then published on 11 July 2012
along with draft Employment Tribunal Rules.
On 14 September 2012, the Government published a
further Consultation on ET Rules/ Underhill
Initial
Consultation:
Commenced
27/01/11 and
Closed on
20/04/11
Response
23/11/11
Underhill

10. Caste
discrimination
tba
recomms. Its Response, published on 14 March 2013
confirmed the majority of changes recommended by
Underhill J will be implemented in new ET rules.
The New ET Rules were published on 3 June 2013
and, for the most part came into force on 29 July
2013.
In the meantime, on 17 January 2013, the
Government published a consultation: Early
Conciliation: a consultation on proposals for
implementation setting out the detail of its proposals
for early conciliation. The Response was published on
12 July 2013. This new regime, provided for by the
Enterprise & Regulatory Reform Act, is expected to be
implemented from early 2014.
Following the case of Redfearn v UK, the Act exempts
dismissals related to political opinion or affiliation from
the unfair dismissal qualifying period in respect of
dismissals arising on or after 25/6/13. It will also
introduce caste discrimination at a time to be agreed
in due course.
report
11/07/12
Further
Consultation
commenced
14/09/12 and
Closed on
23/11/12
Response
14/3/13
New ET Rules
3 June 2013
Early Concil
Consultation
commenced
17/01/13 and
closed
15/02/13
Response
12/07/13
Enterprise &
Regulatory
Reform Act
25/06/13
Tribunal Fees Proposed
Two main fees:
 ET Issue fee =£160 or £250,
depending on nature of claim
 ET Hearing fee =£230 or £950
 EAT Issue fee =£400
 EAT Hearing fee =£1200
29 July 2013 The MOJ engaged in Consultation on charging fees in
ET and EAT, resulting in a response to a consultation on
13 July 2012 which confirmed fees were to apply at 2
stages of ET and EAT proceedings, subject to means
testing: issue of a claim and at hearing.
Fees apply from 29 July 2013, accompanied by a
Consultation
Commenced
14/12/11
Closed
06/03/12

11. process for applying for remission (Draft Statutory
Instrument). There will be 2 levels of fee according to
the complexity of the case. Type A fees relate to
disputes such as unpaid wages and will involve an
issue fee of £160, followed by hearing fee of £250.
Unfair dismissal or discrimination claims will be Type B
and attract fees of £230 on issue and £950 at hearing.
Response
13 July 2012
TUPE reform Changes Approved:
 Narrowing of service provision
changes;
 Dealing with the Abellio
anomaly and inability of
transferor to rely on post-
transfer ETO;
 Employee Liability Info 28
days pre-transfer.
 Pre-transfer collective
consultation to count
January
2014
Amid ongoing allegation that UK TUPE Regulations
2006 exceed European requirements in certain
respects, the Government launched the BIS call for
evidence-effectiveness of tupe regulations 2006 in
November 2011.
In its Response the Government highlighted areas of
concern regarding TUPE and proposals for change
were then revealed in the formal TUPE Consultation
launched on 17 January 2013, including
controversially, repeal of the service provision change
provisions and removal of Employee Liability
Information.
The Response to this latest Consultation was
published on 5 September and followed by draft
amending regulations on 1 November 2013. Service
provisions changes will stay, as will Employee Liability
Information, supported by revised Guidance. The new
regulations are expected to come in to force in
January 2014.
Call for
evidence
Commenced
23/11/11
Closed
31/01/12
Response
14/09/12
Consultation
17/01/13
Closed
11/04/13
Response
5/ 09/13
Draft
regulations
1/11/13
Unfair
Dismissal
(confidential
discussions)
Changes Approved
 Protected disclosure of offers
made to terminate
employment on mutually
acceptable terms (for unfair
dismissal claims only);
29 July 2013 The Government Response to Consultation Ending the
employment relationship, issued on 17 January 2013,
confirmed the intention to introduce confidentiality for
settlement offers (so that they may not be referred to
in the context of any future unfair dismissal claim).
Consultation
14/09/12
Closed
23/11/12

12.  Excludes automatic unfair
dismissal claims, such as
whistleblowing;
 Excludes situations involving
“improper” behaviour by
employer.
Under the Enterprise and Regulatory Reform Act these
changes came into force on 29 July 2013. There is
also a new ACAS Code of Practice (as appended to the
Response to Consultation). Guidance is still awaited.
Response
17/1/13
Enterprise &
Regulatory
Reform
Act
25/04/13
Whistle-
blowing
Changes in force
 Qualification of rights so that
disclosures must be made in
the public interest;
 Removal of “good faith”
requirement
 Employer liability for
harassment by colleagues
Protected
disclosures
made on or
after
25 June 2013
To remove whistle-blowing protection in so far as it
allowed employees to raise claims based on their own
employment contracts the Enterprise and Regulatory
Reform Act requires qualifying disclosures to be made
in the public interest. Furthermore, employers will be
liable for bullying or harassment of whistle-blowers
unless they take preventative steps.
Further reform seems likely in due course. The
Charity Public Concern at Work has concluded a
‘Whistle-blowing Commission’ aimed at reviewing
the current legal protection and plans to publish its
findings at the end of the year. At the same time,
the Government has issued its own Call for
Evidence to assess whether current whistle-blowing
legislation is ‘fit for purpose’.
Enterprise &
Regulatory
Reform
Act
25/04/13
Working Time Under consultation
 Amendment to WTR to allow
for carry-over of holiday for
those off sick, following EU
case law;
 Placing a limit on the amount
of carry-over leave
Not known As part of the far-reaching Consultation on modern
workplaces the Government considers the recent case
developments in Europe (such as Schulte ) and the
fact that WTR do not expressly allow for the carry-
over leave by those unable to take it due to sickness
absence. Assuming some degree of carry-over is
required, in amending WTR the Govt will need to
decide the amount of leave and period of carry-over.
Current proposals suggest a limit on carry-over leave
to four weeks (which is supported by the recent case
of Neidel). The proposed period will need to be
increased from 9 to 12 months in light of this case,

13. however.
Formal response to the consultation is awaited during
2013.
Last updated 1/11/13

14. For further information please contact:
Gill Watkins
Senior Associate PSL
Tel: 0845 498 7581
Email: gillianwatkins@eversheds.com
Disclaimer
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