Would reforming the Working Time regulations be a good idea?

Brexit. Brexit. Brexit. Whilst Christmas and New Year provided a welcome rest from Brexit-dominated headlines, there is no doubt that the media train will start in earnest sooner rather than later.

Just before Christmas, various newspapers reported that the Working Time Regulations could be a target for the Government following the UK’s departure from the EU. Certain newspapers went further and stated that repealing or substantially amending the Working Time Regulations would be a positive example of removing so-called ‘red tape’ and freeing businesses from the burden of overbearing regulations; some newspapers even trotted out the over-used line of ‘taking back control’.

So, to use that awful phrase, should the UK ‘take back control’ and amend the Working Time Regulations?

another TUPE update

Not only is TUPE one of the most difficult areas of employment law, it is also one of the most volatile in terms of frequently changing rules and conflicting decisions. Last month I reported a watering down of TUPE reforms and the result of the Government’s review of TUPE has now been published, setting out its plans for those reforms which are going ahead. The headline omissions are:

– The provisions expressly applying TUPE to service provision changes (SPCs) are not to be repealed (although they will be tweaked – see below). This will no doubt be a relief to service providers who will not be lumbered with staff they have taken on from predecessors under TUPE if they now lose a contract, and a disappointment to TUPE lawyers who fancied a bit of extra litigation work!
– The obligation to provide employee information prior to a transfer will stay, but transferors will have 28 days to do this rather than the current 14.

The following changes will be made, and it is difficult to take issue with them as measures to help businesses:

– The definition of a SPC will be restricted to situations where the activities before and after transfer are “fundamentally or essentially the same” (in line with Metropolitan Resources Ltd v Churchill)
– Specifying that a change in location of the business falls within the scope of the defence to automatic unfair dismissal allowed for economic, technical or organisational reasons.

“dynamic” contractual rights and TUPE

As aficionados of the European Court of Justice (CJEU) will tell you, it’s rare that the full judgement of the court does not follow the opinion of the Advocate General, but Mark Alemo-Herron and Others v Parkwood Leisure Ltd is just such a case. The icing on the cake is that the court held that a narrow interpretation should be taken of the Acquired Rights Directive and that it should not be taken to permit the transfer of “dynamic” contractual rights, that is, contractual rights which vary according to collective negotiations. The facts which gave rise to the decision are pretty typical: the London Borough of Lewisham outsourced its leisure services to Parkwooda and Mr Alemo-Heron and his colleagues, whose contracts incorporated the National Joint Council collectively negotiated terms and conditions, were transferred to Parkwood, who as a private sector undertaking could not participate in the NJC.
In holding that a member state would not be allowed to insist on a the transfer of dynamic terms, the CJEU commented that protection of employee rights was not the sole purpose of the Acquired Rights Directive. The ARD, it said,
seeks to ensure a fair balance between the interests of those employees, on the one hand, and those of the transferee, on the other. More particularly, it makes clear that the transferee must be in a position to make the adjustments and changes necessary to carry on its operations
Permitting a dynamic interpretation would saddle such a private sector employer with terms and conditions it could not influence and seriously reduce its contractual freedom “to the point that such a limitation is liable to adversely affect the very essence of its freedom to conduct a business”
Meanwhile the Government has announced a significant watering down of its proposed TUPE reforms.

if employment regulation is a problem why are we getting more?

The government has published “Employment Law 2013: progress on reform” which notes both that in the UK, “burdens from employment law are low by international standards”, and that there is a perception that employment regulation is a problem (perhaps fuelled by exercises such as the “Red Tape challenge“?), leading to a situation where “fear of getting it wrong still undermines business confidence”. To help to counter this fear (perhaps greater than it needs to be since many employers appear to be under the impression that the ill-fated compulsory dismissal procedures are still in force) ACAS is to develop an online interactive tool for use to help with disciplinary issues.
The first change came into force from 6 April, when the period for collective redundancy consultation was cut from 90 days to 45 days. This is only relevant when 100 or more employees are subject to te same redundancy exercise. For 20 to 99 employees the consultation period remains unchanged (30 days). For fewer than 20 employees the consultation period must be reasonable but no minimum period is specified.
Looking further ahead this year:

– New settlement agreement arrangements including a new statutory code of practice will come into force at some as yet unspecified point during summer 2013
– Tribunal reforms have put been back to "summer" from spring 2013. These include new powers to strike out weak cases sooner rather than later, simplifying the procedure needed to withdraw claims and combining prehearing reviews and case management discussions. Fees will be introduced in employment tribunals at the same time, along with the reduced cap on unfair dismissal awards;
– In the autumn (note the trend for nothing more specific than a season!) there are plans to reform TUPE, as I outlined last month. The introduction of the new “employee owner” status has been put back to autumn 2013 from spring (about which read more in my introduction to this month’s newsletter). The proposal has also been tweaked in the recent budget, in which it was announced that the first £2000 worth of shares will be exempt from income tax and national insurance. There is also a requirement for independent advice.