Employment law: An ever-changing beast

Employment law is one of those legal disciplines that just will not relent. Change is constantly on the horizon and as such, it can be hard for organisations to keep abreast of what’s new. The issue is that employment law policy changes make headlines as they directly affect the tens of millions of people currently in work in the UK. With an election around the corner next spring, policies relating to employment law are likely to come thick and fast.

In January’s HR Forum, Cozens-Hardy LLP will cover the areas of employment law that have been and are making headline news. Some of the topics we will be exploring are set out below. Don’t forget that this time we have kept a slot open for delegates to suggest their own burning topic they would like us to expand upon.

Zero-hour contracts

There is currently no statutory definition of a ‘zero-hour contract’ in employment law. It is generally understood to be an employment contract between an employer and a worker, which means the employer is not obliged to provide the worker with any minimum working hours, and the worker is not obliged to accept any of the hours offered. It is accepted that someone on a zero-hour contract will have ‘worker’ status, which does not bring as many rights under English & Welsh employment law as the gold-star ’employee’ status. However, the way in which the employment relationship develops may result in the worker gaining ’employee’ status, regardless of what is written on paper and may persuade an Employment Tribunal that the worker in fact has many more rights available to them. The zero-hour contract is typically seen in industries such as retail and catering, and is typically used to fill gaps in rapidly fluctuating workforces. Zero-hour contracts are a hot issue politically and we can expect the major parties to use this as a powerful tool in the run-up to spring’s election campaign.

Sharing parental leave and pay

From December 2014, new regulations will come into force whereby parents can choose a more flexible approach to parental leave following the birth of their child or the placement of an adoptive child. A mother will be able to opt to end statutory maternity leave earlier, in order for her partner or the child’s father to start Shared Parental Leave, this scheme bringing an end to Additional Paternity Leave. There are certain eligibility requirements for the Shared Parental Leave scheme, namely a continuity of employment test and an employment and earnings test. This scheme will also only be applicable to babies born or adoptive children placed on or after 05 April 2015, meaning that many HR departments will likely receive notifications of intention to partake in the scheme from employees in as early as December 2014. There will also be a new pay scheme for those on Shared Parental Leave.

Holiday pay to include overtime

The recent decision by the Employment Appeal Tribunal (EAT) in the conjoined cases of Bear Scotland Ltd v Fulton & another; Hertel (UK) Ltd v Wood & others; and Amec Group Ltd v Law & others was widely publicised in the press in November 2014. The effect of the EAT’s decision in this case is that commission and overtime should now be taken into account when an employer calculates holiday pay for its workers. There are certain issues surrounding the decision, including whether or not it applies only to holiday pay provided for by the EU Working Time Regulations 1998 or whether it also applies to bank holidays provided for by UK legislation, meaning that the case is likely to be appealed for clarity’s sake. There is also uncertainty about the evidence that employees may have to provide to employers to show that overtime is essential to their job. Business Secretary Vince Cable is establishing a taskforce to assess the effect of this decision upon businesses and policy may be implemented as a result of this.

Social media and employment law

Increased social media presence inevitably comes with increased personal technology presence in the workplace such as smart phones, laptops and tablets. There are challenges in dealing with social media in the workplace and these will vary in different kinds of organisation. It can affect communications among managers, employees and job applicants, how organisations promote and control their reputation, and how colleagues treat one another. It can also distort what boundaries there are between home and work. There have been increasing reports of disciplinary action and sometimes even dismissals as a result of employee behaviours on social media even when away from the workplace. How is it best to approach these issues and how should misuse of social media or workplace internet be dealt with?

ACAS early conciliation

Since May 2014, it has been mandatory for individuals wishing to bring a claim to the Employment Tribunal to first inform ACAS and start the process called ‘early conciliation’. This process replaces the previous ‘Pre-Claim Conciliation’ procedure and is a free service that stops the clock on employment claims that are time-limited, such as claims for unfair dismissal, workplace discrimination and unpaid holiday pay. An ACAS conciliator is assigned to the case with the purpose of looking to settle the matter between the parties and away from the Tribunal in a timely and non-costly manner. If settlement cannot be achieved in the early conciliation period, an early conciliation certificate is issued and the case can move forward to Tribunal.

Extended right to request flexible working

From June 2014, every employee who fulfills a minimum period of service has the right to request flexible working. Employers must consider and decide upon requests within three months of receiving the request and must have a sound business reason for rejecting the request. For some organisations, the duties to meet with the employee, consider their request and the impact that changes may make to existing employees and their organisation may seem unduly onerous. However, it is vital to be aware that if an employer fails to deal with a flexible working request in a reasonable manner, the employee is legally entitled to make a claim to the Employment Tribunal.

We will also have an open-floor session where delegates will be invited to ask about topics of employment law that are pertinent to their own organisations.

To keep you and your organisation up-to-date with the latest employment law developments so as to stay informed and prepared, come along to the next HR Forum presented by Cozens-Hardy LLP on Wednesday 28th January 2015 at Dunston Hall.