Employment: saying goodbye to statutes

The question of the afterlife has long exercised mankind. No doubt many of us secretly harbour our own view of those first few moments of ‘eternity’. I like to imagine myself as being on a train journey, at the commencement of which a simple announcement will be made: ‘Ladies and gentlemen. During this journey a trolley will be passing through the carriages serving drinks and other refreshments.’ It is of course my fear that they will regret that they don’t serve spirits (sorry).

We are all here but for a few thousand days and employment law statutes are no different. So at next year’s employment BAFTA awards, to whom will we have said ‘goodbye’ during the year? Here are some of the potential obituaries (part of the government’s aim to reduce burdens on employers through its ‘red tape challenge’).

Employment tribunal fees

Well before many of us have even decided whether we really think they are a good idea or not (tempting as they are), good old Unison announced that it regards tribunal fees as unlawful and challenged the government’s decision to introduce fees for bringing employment tribunal claims.

Unison argues that the introduction of fees makes it virtually impossible for claimants to exercise their rights under European law, as the fees will often exceed the maximum amount that can be recovered (if not the maximum amount shown in some schedules of loss) even if the claim is successful. European law, of course, requires that effective remedies are given for breaches of rights derived from European law, such as discrimination. Unison also argues that the introduction of fees is detrimental to those with protected characteristics, and that the government has breached the public sector equality duty in failing to consider the impact of fees on such people. It also argues that fees indirectly discriminate against women. The judicial review application was part-heard on 22-23 October and resumed on 4 November. We wait with bated breath.

Discrimination questionnaires

Much beloved of those looking for higher fees, the discrimination questionnaire has, it is argued, done little more than irritate respondents’ representatives since its introduction. While trainee solicitors may mourn their passing, it is suspected that many others will not lose sleep knowing that the provisions for obtaining information through asking questions are due to be repealed with effect from 6 April 2014. Instead, the government intends to introduce a new informal approach to asking questions which will be set out in ACAS guidance. This will explain how individuals can ask questions and why employers should respond. The government believes that this will enable businesses to better challenge any unreasonable requests for information. What could possibly go wrong? Ahem. We shall see.

Third-party harassment

For several years this rule has been the subject of one of my least well-received jokes. Based on the concept of there having been some form of known harassment on two prior occasions, it seemed that the ‘speaking clock rule’ (that is, at the third ‘stroke’) made total sense. The rule did not make it as a joke, or as a concept, and Bernard Manning being no longer with us the provisions of the Equality Act making employers liable for harassment of their staff by third parties were repealed with effect from 1 October.

Although this does not rule out entirely the possibility of an employer being found liable for harassment by third parties, it does mean that the claim will have to be brought on other grounds and may make a successful claim more difficult.

TUPE changes – response

The government has issued a response to its consultation on proposed changes to TUPE from which many have been hiding. The results have been surprising (to the government at least, which has had to confirm that it will not be abolishing the service provision change rules, nor the employee liability provisions, after all).

Not being implemented

Perhaps oddly, 67% of respondents to the consultation were against the repeal of the service provision change rules, with only 28% in favour. The government has therefore decided to retain the provisions because they provide greater certainty as to whether TUPE applies. It will, however, amend the provisions to include an express requirement that the activities carried on before and after the service provision change must be ‘fundamentally or essentially the same’ to reflect the approach set out in case law.

Other changes which will not be made include:

• Abolition of the rules about providing employee liability information. However, the time when employee liability information must be provided to the transferee will be extended to not less than 28 days before the transfer;
• Allowing the transferor to rely on the transferee’s economic, technical or organisational (ETO) reason to dismiss employees before the transfer; and
• Changes to regulation 4(9) and (10) – which enable employees to resign and claim automatic unfair dismissal (but not notice pay) where there is a substantial change in working conditions to their material detriment.

Being implemented

The government has confirmed that it will make changes to the provisions prohibiting dismissal and changes to terms and conditions, so that they more closely reflect the terms of the Acquired Rights Directive. These will apply where the ‘transfer’ is the reason for the dismissal or the change. The previous reference to the reason being ‘connected to’ the transfer will be removed. The government emphasises that the ‘transfer’ test will be an entirely new test so that changes and dismissals which may currently be considered as ‘connected to’ the transfer might still be prohibited (but will provide further guidance on this, we are told). The government will also retain the exception which allows changes to terms and conditions where there is an ETO reason for the change, which entails changes in the workforce, while recognising that it may be of limited use in practice and does not permit harmonisation.

TUPE will also be amended so that:

• changes in the location of the workforce after a transfer can amount to an ETO reason entailing changes in the workforce, meaning that genuine place of work redundancies will not be automatically unfair and changes to workplace location can be agreed;
• it is clear that unilateral changes to contracts are permissible where made pursuant to a contractual provision (such as a mobility clause);
• to allow for renegotiation of contractual terms derived from collective agreements one year after the transfer (even though the transfer is the reason for the change), provided that overall the change is no less favourable to the employee;
• to provide expressly for a static approach to the transfer of terms derived from collective agreements – meaning that transferee employers will not be bound by any post-transfer changes to collective agreements to which they were not a party; and
• to allow micro-businesses to inform and consult affected employees directly where there is no recognised union, nor any existing appropriate representatives.

Hurrah, you cry? Or are the black armbands out? If so, there is some less dramatic news, as it is intended that the government will also make changes to collective redundancy laws to make it clear that consultation by the transferee which begins pre-transfer can count for collective redundancy consultation purposes (provided that the transferor and transferee agree and the transferee has carried out meaningful consultation).

The regulations have been published in draft and will be laid before parliament in December. The government has previously indicated that they are planned for implementation in January 2014 – well in time for those awards.

So, as always, we find that employment law is and remains as life itself. From those earliest simple drawings on the wall of the employment tribunal at Woburn Place to today, all things still come to pass and life springs eternal. The only immediate question is whether that train leaves from a real platform number. I don’t entirely fancy aiming, ‘Harry Potter-style’, at a platform in the middle of a brick wall.

Darren Clayton, Doyle Clayton