by Laurie Anstis on May 8, 2013
The government has just issued its background briefing on the 2013 Queen’s Speech.
Of interest to employment lawyers and HR managers are:
1 The National Insurance Contributions Bill, which will introduce an “Employment Allowance”, add a general anti-avoidance rule for NICs, restrict the use of offshore payroll companies as intermediaries and remove the presumption of self-employment for LLP members.
2 The Deregulation Bill, which will repeal the employment tribunal’s power to make wider recommendations in discrimination cases and make changes to encourage the use of apprenticeships.
3 The Immigration Bill, which amongst other things threatens tougher penalties for employers who employ workers who do not have the right to work in the UK.
There are also separate provisions for changes to teachers’ pay.
This looks quiet compared with recent years, but there are still many changes in the pipeline (such as fees, new tribunal rules and changes to TUPE) which do not require primary legislation and so are not featured in the Queen’s Speech.
by Laurie Anstis on May 1, 2013
There is a problem with the drafting of the Equality Act 2010.
Victimisation, which in this sense means disadvantaging someone because they have brought a discrimination claim, or done “any … thing for the purposes of or in connection with the Act” is prohibited by section 27 of the Equality Act 2010.
The difficult question is whether this prohibition applies to a disadvantage which a person is subject to after their employment has ended. A typical example of this would be where an employer refuses to give a former employee a reference, or gives them a bad reference, because they have brought a discrimination claim against the employer.
That is dealt with by section 108 of the Equality Act 2010. That section outlaws discrimination where it “arises out of and is closely connected to a relationship which used to exist between them“, such as an employment relationship.
The snag comes with section 108(7), which says that “conduct is not a contravention of this section insofar as it also amounts to victimisation“. Read the rest of this entry »
by Laurie Anstis on April 30, 2013
Claims for unpaid wages can be brought in either the courts or the employment tribunal.
In the past, most such claims have been brought in the employment tribunal. Only very large claims have been brought in the courts. One of the reasons for this is that there has been no fee payable to bring a claim in the employment tribunal, but fees have always been charged for claims brought in the courts.
From the end of July (probably – that’s the best date we’ve got at the moment) things will change. Employment tribunals will start to charge fees too. For a claim for unpaid wages there will be an issue fee (paid at the start of the claim) of £160 and a hearing fee (paid at part way through the case) of £230. Read the rest of this entry »
by Laurie Anstis on April 25, 2013
The government’s plans for employee shareholders were first announced by George Osborne in his speech to the 2012 Conservative party conference:
“This idea is particularly suited to new businesses starting up; and small and medium sized firms. It’s a voluntary three way deal. You the company: give your employees shares in the business. You the employee: replace your old rights of unfair dismissal and redundancy with new rights of ownership.
And what will the Government do? We’ll charge no capital gains tax at all on the profit you make on your shares. Zero percent capital gains tax for these new employee-owners.
Get shares and become owners of the company you work for. Owners, workers, and the taxman, all in it together. Workers of the world unite.”
The idea seemed to be a marriage of Conservative and Liberal Democrat policies – on the one hand, Conservative de-regulation, and on the other, Liberal Democrat employee ownership.
Apart from the broader policy considerations involved, employment lawyers were immediately concerned about what “voluntary” meant in this context, and the detail of how the scheme would operate.
The speech was made on 8 October 2012, and was followed up the same day by a BIS press release. The press release said that employee ownership contracts could not be forced on existing employees, but could be the only type of contract offered to new employees.
A couple of weeks later, the formal consultation document was published. At the same time, the Growth and Infrastructure Bill was introduced to pave the way for employee owners. Clause 23 added a new section 205A to the Employment Rights Act 1996:
“(1) An individual who is or becomes an employee of a company is an “employee owner” if—
(a) the company and the individual agree that the individual is to be an employee owner, and
(b) in consideration of that agreement, the company issues or allots to the individual shares in the company which have a value, on the day of issue or allotment, of no less than £2,000 and no more than £50,000.
(2) An employee who is an employee owner does not have—
(a) the right to make an application under section 63D (request to undertake study or training),
(b) the right to make an application under section 80F (request for flexible working),
(c) the right under section 94 not to be unfairly dismissed, or
(d) the right under section 135 to a redundancy payment.
(3) The following provisions are to be read in the case of an employee who is an employee owner as if for “8 weeks’ notice”, in each place it appears, there were substituted “16 weeks’ notice”—
(a) regulation 11 of the Maternity and Parental Leave etc. Regulations (S.I. 1999/3312) (requirement for employee to notify employer of intention to return to work during additional maternity leave period), and
(b) regulation 25 of the Paternity and Adoption Leave Regulations 2002 (S.I. 2002/2788) (corresponding provision for additional adoption leave).
(4) The reference in subsection (2)(c) to unfair dismissal does not include a reference to a dismissal—
(a) which is required to be regarded as unfair for the purposes of Part 10 by a provision (whenever made) contained in or made under this or any other Act, or
(b) which amounts to a contravention of the Equality Act 2010.
(5) The reference in subsection (2)(c) to the right not to be unfairly dismissed does not include a reference to that right in a case where section 108(2) (health and safety cases) applies.”
Responses to the consultation were submitted from, amongst others, the Law Society, CIPD, and TUC. I could not find responses from an employer’s organisation online, but here are the initial reactions from the CBI and BCC.
On 3 December 2012 the government published their response to the consultation. This brought with it some minor changes of detail, a promise of guidance for businesses and a change in the name of the new status from employee owner to employee shareholder.
By the middle of December, the employee shareholder clause of the Growth and Infrastructure Bill had become clause 27. Employee owners were renamed employee shareholders, and for the first time there was provision preventing existing employees from being forced into employee shareholder arrangements.
On 14 March 2013 BIS’s employment law “progress on reform” document said that employee shareholder status would be introduced in Autumn 2013.
On 20 March 2013 the Chancellor’s budget made provision for the first £2,000 of shares to be issued free of income tax and national insurance contributions, and said that the proposals would be implemented from 1 September 2013.
In April the Bill went through the “ping pong” procedure, shuttling between the Commons and Lords, and each time the Lords rejected the employee shareholder provisions. The government initially conceded that turning down an employee shareholder contract would not affect an individual’s entitlement to benefits. Then, faced with the imminent end of the Parliamentary year, on Tuesday the government made two amendments in the Commons, providing for detailed information to be given to employees, and also that no acceptance of an employee shareholder agreement would be valid unless it was made more than seven days after the offer was made.
On Wednesday a further amendment was made in the Lords requiring the employer to pay for the employee to take independent advice on an employee shareholder agreement. With this amendment in place, the Bill was approved by the Lords, and is expected to receive formal royal consent today.
by Laurie Anstis on April 24, 2013
When work is outsourced, an employee will often be accountable both to their employer and to the client they are working for.
For instance, a chef might work at a canteen which his or her employer runs for one of its clients. The contract that the employer has with its clients is likely to give the client a right of veto over who carries out the work. Even if it doesn’t, the employer will be under commercial pressure to do what its client wants.
If the chef offends the client, the client might tell the employer to remove him or her from their work.
That’s what happened in Bancroft v Interserve. After a “misunderstanding over margarine“, the chef’s employer gave him a formal warning, but the client told the employer to remove him from their work. Read the rest of this entry »