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More change. Less law?

18 February 13

What is foreshadowed in the Government's latest statement of new regulations affecting employment law

by Jane Green

This Government has taken to publishing a twice yearly “Statement of New Regulations”. The latest – the “Fifth” – contains a number of developments of interest to employment practitioners.

Michael Fallon, Minister of State for Business and Enterprise, proudly states in the foreword: “this is the first Statement to be published a full 12 weeks ahead of the Common Commencement Date [of 6 April]”. But the “significant advance notice of regulatory changes” it is said to contain is tempered somewhat by the fact that much of the legislation is yet to complete its parliamentary passage.

This is compounded by the fact that much of the proposed change is not in fact set to be implemented on the CCD, but in February, March and July.

For the most part, the February development should come as no surprise: the annual adjustment of compensation limits taking effect on 1 February, via the Employment Rights (Increase of Limits) Order (SI 2012/3007).

But also flagged for February commencement is a change to the common rounding mechanism for calculating these annual adjustments. A provision contained in the Enterprise and Regulatory Reform Bill (“ERRB”) will see these rounded up or down to the nearest £1, rather than £10, in future years.

There are a couple of significant developments scheduled to occur in March.

On 8 March, the revised Parental Leave Directive will be transposed into UK law, resulting in parental leave increasing from 13 to 18 weeks per parent, per child. A statutory limit of four weeks’ leave in any one year will remain (though this can be departed from by employers in their own schemes). Employed agency workers returning from parental leave will also be given the right to request flexible working. These changes will be effected by the Parental Leave (EU Directive) Regulations 2013 (still in draft form at the time of writing).

Repeal of certain provisions of the Equality Act 2010 will also take place in March. Statutory protection from third party harassment (currently contained in s 40(2)-(4)) will be removed, and practitioners can be expected to dust off old case law on the subject. The statutory discrimination questionnaire procedure (s 138) is also set to be scrapped. These changes will be effected by the ERRB; as that was at House of Lords committee stage on the day of writing, a specific commencement date is not yet available.

A raft of changes will then occur in April.

The annual change to the weekly rate of statutory maternity, paternity, adoption and statutory sick pay should again come as no surprise.

Requiring rather more forward planning will be the ability of employers to offer employee shareholder status to new hires or existing staff members. The expected implementation date of 6 April is yet to be confirmed. The same is true in respect of amendments to the Employment Rights Act 1996 which will narrow whistleblowing protections to those disclosures which are in the public interest.

The minimum period of consultation when 100 or more employees are at risk of redundancy is set to be reduced from 90 to 45 days. The Government announcement flagged 6 April as the date this is expected to take effect; draft regulations are awaited.

Revised Employment Tribunal Rules are also expected to come into force on this date, and these are in the process of being finalised.

It seems that a little time will then be allowed for the new rules to bed down, before employment tribunal fees become operative. These are not included in the Government’s Statement of New Regulations, but a heads-up on possible timescale is given in the Ministry of Justice’s Digital Strategy which states: “Fee payment (starting with employment tribunal fees): this will be introduced in July 2013, and we will digitise this service and the processes that support it.”

And we have got this far without having mentioned the developments in respect of confidential settlement discussions and settlement agreements, but these also look set for a “summer 2013” implementation (despite again being absent from the Statement).

Much to prepare for in the first half of 2013 then, with much more to come in the latter half, if recent announcements on the Transfer of Undertakings (Protection of Employment) Regulations 2006 and the Conduct of Employment Agencies and Employment Businesses Regulations 2003 are anything to go by.

The New Year has seen the Government shift from a “one in, one out” process of regulatory reform, to a “one in, two out” process, and the likely result is employment law shaken all about.

Jane Green, partner, Employment, Maclay Murray & Spens

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