Changes to TUPE
BIS has recently confirmed that significant changes to the current TUPE regime will come into force on 31 January 2014, including the following:
- The current rules relating to service provision changes will remain. However, the legislation will clarify that for TUPE to apply to a service provision change, the activities carried on after the change must be ‘fundamentally or essentially the same’ as those carried on before it;
- The obligation to provide employee liability information will remain, but the required information will need to be given 28 days rather than 14 days before the transfer as is currently the case;
- Change of work place location will be an Economic, Technical or Organisational (ETO) reason, thereby meaning genuine place of work redundancies will no longer run the risk of being automatically unfair;
- The provisions restricting changes to terms and giving protection against dismissal will no longer apply to changes made for “transfer-related reasons”; and
- Micro-businesses will be allowed to inform and consult with their employees directly where there is no recognised independent union or existing appropriate representatives.
Introduction of mandatory pre claim Acas conciliation
On 6 April 2014, compulsory pre-claim Acas conciliation will be brought in requiring potential claimants in employment tribunal proceedings to lodge details of their proposed employment tribunal claim with ACAS in the first instance before bringing a claim.
At this point, Acas will contact the parties, offering them the opportunity to engage in pre-claim early conciliation (EC) with a nominated conciliation officer for a prescribed period of a month. If either party refuses EC, or it is unsuccessful (for example if a settlement has not been reached within the prescribed period), the claimant will be issued with a certificate by Acas enabling them to proceed with issuing proceedings in the tribunal. If, however, the parties do agree to enter into EC at this pre-litigation stage, this will effectively “stop the clock” on the limitation period for presenting the claim to the tribunal whilst this takes place.
The introduction of mandatory pre claim Acas conciliation represents another radical reform of the employment tribunal system, following on from the various changes introduced in 2013, in an apparent further attempt by the government to reduce the number of claims coming before the employment tribunal easing the current burden on the employment tribunal service which has stretched its resources in recent years given the prevailing economic climate.
Abolition of Discrimination questionnaires
Also on 6 April 2014, section 138 of the Equality Act is to be repealed, abolishing discrimination questionnaires, which enabled an individual to obtain information from their employer regarding discrimination and to use the information obtained as evidence in tribunal proceedings.
Extension of right to request flexible working
The right to request flexible working will be extended to all employees with 26 weeks’ service, with effect from 6th April 2014. Currently, under existing legislation, this right is only afforded to employees who qualify as parents or carers. Employers will also no longer be required to follow the existing statutory procedure in dealing with flexible working requests. Instead they must consider all such requests in a ‘reasonable manner’. A statutory code of practice is introduced to give guidance to employers as to the meaning of ‘reasonable’. Employers will have the right to refuse requests on business grounds.
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