Right to request flexible working.

From 6 April 2014, the right to request a flexible working arrangement will be extended to all employees with 26 weeks’ service, not just those with caring responsibilities.

It is important for employers to consider now how to respond in terms of accommodating and/or dealing with requests for flexible working, once the right to request is extended. This will include adopting a flexible working policy. Also employers should check any current internal procedure against the new ACAS Code, and make any necessary amendments.

Discrimination Questionnaires

The statutory process will be abolished and replaced with informal guidance. The guidance includes six steps for employees (and job applicants) on what to ask if they think that they have been discriminated against under the Equality Act 2010. It also includes three steps for employers who receive such information requests on how they can respond appropriately.

Zero Hours Workers

Following months of media coverage, a formal consultation was launched in December 2013 into zero hour contracts, the extent of their use by employers and alleged abuses. The consultation closes on 13 March 2014 so watch this space!

Enterprise and Regulatory Reform Act 2013

The Enterprise and Regulatory Reform Act 2013 introduces Early Conciliation for all workplace disputes, with some very limited exceptions. The scheme is part of a package of employment law reforms introduced by the Government with the stated aim of reducing the burden on businesses. From 6 April 2014, anyone who wants to make an Employment Tribunal claim will need to contact ACAS first. ACAS will then take steps to resolve the dispute before a claim is submitted.

On the 6 April 2014, the Enterprise and Regulatory Reform Act 2013 also provides the employment tribunals with the power to impose a financial penalty for employers who are found to have committed an aggravated breach of employment rights. Therefore there is potentially an additional financial penalty of up to £5,000 for an employer who has breached an employee’s rights in an unreasonable, negligent or malicious way.

National Minimum Wage

The Government has approved a National Minimum Wage increase that will take effect from 1 October 2014. Below are the new rates:

Right to Time off for Antenatal Appointments

Part 8 of the new Children and Families Act 2014 comes into force on 1 October 2014. This means employees and agency workers now have the right to take unpaid time off to accompany a pregnant woman with whom they have a “qualifying relationship” to antenatal appointments.

“Qualifying Relationship” includes

• the baby’s father;
• the expectant mother’s spouse, her civil partner, or partner (of either sex) in an enduring relationship; or
• intended parents of a child in a surrogacy arrangement if they expect to be entitled to and intend to apply for a parental order in respect of that child.

Restrictions to new statutory right include –

• Right to attend two antenatal appointments.
• Each appointment must not be longer than six and a half hours long.
• The appointment must have been made by a registered medical practitioner, midwife or nurse.

BIS has published the Time off to accompany a pregnant woman to antenatal appointments: Employers Guide.

Equal Pay Audits

The Equality Act 2010 (Equal Pay Audits) Regulations 2014 came into force on 22 September 2014. Tribunals will now have the power to order employers found to be in breach of equal pay law to carry out equal pay audits in certain circumstances. New businesses and existing micro businesses will be exempt from the new rules.

GM Packaging was a small employer with just 9 employees. Its managing director became aware of conduct by the Claimant (a senior manager), engaging in sexual activity with a member of his staff on company premises after hours.

It delegated an external HR consultant to advise on whether dismissal should take place. Following an investigation the HR consultant recommended dismissal and the managing director accepted this recommendation. When the Claimant appealed, this was also delegated to a HR consultant and the appeal was rejected. The employment tribunal held it was fair and reasonable to delegate matters to an HR consultant.

In this case GM brought in an HR consultant to deal with this matter as the MD was involved in the matters under investigation as he was a witness to the events and could not impartially deal with the resulting proceedings. Given the size and administrative resources of GM Packaging and the fact of the senior position of the employee being dismissed, the action taken to deal with the disciplinary process was held to be reasonable by the tribunal.

GM Packaging (UK) Ltd v Haslem UKEAT/0259/13/LA

Baroness Hale giving the leading judgment of Clyde & Co LLP and another v Bates Van Winkelhof, stated that “one can effectively be one’s own boss and still be a worker”.

Members of an LLP will also now benefit as workers from part-time worker, national minimum wage, pension auto-enrolment and working time rights, as well as from protections against unlawful deductions from their pay.

Practical impact of the judgment for LLPs

• LLPs should ensure from now on that they do not take any retaliatory action against LLP members who blow the whistle on perceived wrongdoing.
• LLPs should also carefully document genuine business reasons for any negative actions taken in respect of individual LLP members (e.g. compulsory retirement,  demotion or downgrading of profit share)  to ensure they can prove it was not in retaliation for the LLP member having blown the whistle on perceived wrongdoing.
• Firms should update their internal whistleblowing policies (and related training) to ensure they apply to LLP members as well as employees.
• LLPs should ensure that their members are treated in accordance with their rights as workers under the Working Time Regulations, Part-time Workers Regulations and related statutory rights and protections for workers.
• For example, the Employment Rights Act 1996 give workers the right not to suffer an unauthorised deduction from wages – LLPs will have to ensure that any “clawback” provisions in their LLP agreements are carefully drafted so as not to offend this principle.
• Members will now be covered by the National Minimum Wage Act 1998. This is unlikely to cause many difficulties for LLPs, but it may be that they will need to consider whether, and if so, how to structure their drawings to make sure that they act in compliance with that legislation.

As “workers” it is also likely that LLP members will be classed as eligible “jobholders” under the Pensions Act 2011, meaning that LLPs may now also be required to automatically enrol their members into an occupational pension scheme. Firms will therefore need to take specialist pensions law advice on this issue, including, for example, in respect of how LLP members are to be incorporated into any existing pension scheme run by the firm, or resolving issues relating to members “opting out” of automatic enrolment.

Author: Anna Lovett

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