The Government has kicked off 2013 with five major announcements about their ongoing proposals to reform employment law. The three Government consultations and two responses cover the following:
1. Settlement agreements and cap on unfair dismissal compensatory award
Under the Enterprise and Regulatory Reform Bill (ERR Bill), pre-termination negotiations will be inadmissible as evidence in an Employment Tribunal in any subsequent unfair dismissal claim.
To underpin the above, the Government has now published its response to the consultation on "Ending the Employment Relationship". This confirms that there will be a new ACAS Statutory Code of Practice on settlement agreements, which will include a template letter to provide certainty for employers. ACAS will publish the draft Statutory Code for public consultation shortly. There will also be guidance accompanying the Code, which will include good practice guidance for employers on offering settlement and a model settlement agreement.
The Government also intends to introduce a 12 months' pay cap on the compensatory award for unfair dismissal. It will retain the overall cap on the compensatory award for unfair dismissal (currently £72,300).
Both the above issues are being taken forward in the ERR Bill, which is expected to receive Royal Assent in spring 2013. The Government is aiming to have the Statutory Code of Practice and accompanying guidance in place by summer 2013. Changes to the unfair dismissal compensation award are also expected to come into effect in summer 2013.
2. TUPE
Following a call for evidence about TUPE, which concluded in 2012, the Government has now issued a consultation on potentially far-reaching changes to TUPE, which it believes will improve and simplify TUPE. The proposed changes include the following:
• Repealing the provisions dealing with "service provision changes";
• Repealing the specific requirements regarding the notification of Employee Liability Information;
• Changing the wording of certain TUPE provisions so that they more closely reflect the wording of the Acquired Rights Directive and EU case law (e.g. relating to changes to contracts; protection against dismissal and substantial changes in working conditions to the material detriment of employees);
• Amending the meaning of "entailing changes in the workforce" so it can cover changes in the location of the workforce;
• Providing that a transferee can consult on collective redundancies with the transferring employees prior to the transfer; and
• Allowing micro businesses to inform and consult employees directly regarding transfers, rather than through representatives.
The consultation closes on 11 April 2013.
3. Early conciliation
The Government has issued a consultation on its proposals for early conciliation (EC) i.e. a requirement for most potential tribunal claims to be referred to ACAS to allow parties to be offered the option of resolving their dispute through conciliation before a claim is made.
The consultation sets out the Government's proposals on how the EC process will operate; the form that prospective claimants will need to complete; the jurisdictions appropriate for EC and how the EC request will be handled.
The consultation closes on 15 February 2013.
4. Recruitment sector
The Government has also issued a consultation on reforming the regulatory framework for employment agencies and employment businesses. The Government wants to reform how the sector is regulated, removing costly and complex regulations where possible and simplifying the relevant regulations.
This consultation closes on 11 April 2013.
5. Tackling sickness absence
Last but not least, the Government has also published its response to the 2011 review of sickness absence, jointly chaired by David Frost and Dame Carol Black.
The Government has accepted many of the recommendations made and announced a range of measures. These include launching a new independent assessment and advisory service aimed at getting people back to work and away from long-term sickness benefits. The new service will be delivered in 2014.
The Government will also publish revised fit note guidance for GPs, employers and individuals during the first quarter of 2013 and abolish the SSP record keeping requirements, enabling employers to keep records in a more flexible manner which best suits their organisation.