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Employment Law Round Up: On-Going Government Consultations on Employment Law Reforms

Tribunal reform: government consults on system of early conciliation

On 17 January 2013, the government launched a consultation on how it proposes Acas will deal with requests for "early conciliation" (EC) from prospective claimants who, once the Enterprise and Regulatory Reform Bill comes into force, will have to make such a request before they can issue certain proceedings in the employment tribunal. The consultation closes on 15 February 2013.

Upon receipt of a completed EC form, an Early Conciliation Support Officer (ECSO) will make reasonable efforts to contact the claimant to obtain basic information and outline the conciliation process. If the claimant wishes to conciliate, the ECSO will pass the matter to a conciliator. If the respondent is agreeable, the conciliator will have up to one calendar month (which can be extended by a further two weeks with the parties' agreement) to facilitate a settlement.

Where the ECSO is unable to contact the claimant, or if either of the parties refuse to conciliate, or should the conciliation fail or the conciliation period expire without settlement having been reached, Acas will issue a certificate to confirm that the claimant has complied with their duty. The claimant will then be able to present a tribunal claim, including a unique EC reference number in their ET1 to confirm compliance.

Ending the employment relationship: government response to consultation

On 17 January 2013, the government published its response to the Ending the Employment Relationship consultation, which sought views on the implementation of two measures contained in the Enterprise and Regulatory Reform Bill 2012-13 (ERRB). With regard to the new legislative provision which will make pre-termination negotiations inadmissible in unfair dismissal cases, the government will proceed with a new statutory code of practice and accompanying guidance on how to resolve workplace disputes. An optional model settlement agreement and template letters will be issued to encourage employers to use the new provision. Acas will shortly publish a draft statutory code for public consultation, with the final code, guidance and the ERRB provision expected to come into force in summer 2013.

In addition, the unfair dismissal compensatory award will be capped at the lower of one year's pay and the existing limit, under a new power in ERRB to vary section 124 of the Employment Rights Act 1996. This change, which is also expected to take effect in summer 2013, is designed to manage employees' expectations, and thereby encourage settlement, rather than to decrease tribunal compensation. However, the way in which a year's pay will be calculated for the purposes of the new cap means that some claimants who can demonstrate 12 months' loss of earnings will be significantly worse off.

TUPE: consultation on proposed changes

On 17 January 2013, the government issued a consultation on a number of proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246). The most significant is the repeal of the regulations relating to "service provision changes", which the government accepts would require a lead-in period. It is therefore consulting about how long this period should be.

Other proposals include:

  • Removing the obligation to provide employee liability information, but making it clear that transferors should disclose information to the transferee to aid the information and consultation process.

  • Amending the provisions restricting changes to terms, giving protection against dismissal and giving the right to resign in response to a substantial change in working conditions, in each case to reflect the wording of the underlying Directive and/or ECJ case law more closely.

  • Providing that "entailing changes in the workforce" includes changes to the workforces location.

  • Enabling the transferee to consult with the transferring employees on collective redundancies prior to the transfer.

In addition the government is seeking views on whether transferors should be able to rely on the transferee's ETO reasons in respect of pre-transfer dismissals.

Responses to the consultation are due in by 11 April 2013 and the government proposes to make these changes (save probably those relating to service provision changes) in October 2013.

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