On 25 April 2013, the Enterprise & Regulatory Reform Act became law, on receiving Royal Assent.
It is an enormous Act and, quite frankly, a thorough hotch-potch. There are Parts covering the UK Green Investment Bank, abolition of the Competition Commission, laws concerning cartels, the appointment of bankruptcy adjudicators, copyright law and rules concerning estate agents. Part 2 (covering sections 7 to 24) is entitled Employment and it brings into law a number of provisions which have been covered by blog posts over the last few months. Where known I have included the relevant commencement dates. Key among them are:
ACAS and conciliation
There is a requirement for the reference of claims to ACAS before implementation, to attempt conciliation, along with extended limitation periods to enable this to happen (sections 7-10 & Sched 2): to those who remember the 2004 dispute resolution procedures, does this idea sound worryingly familiar? In a climate of cutting red tape this looks very much like adding some.
There are changes to the potential make up of both Employment Tribunals and the Employment Appeal Tribunal – the latter to allow more appeals to be heard by a judge sitting alone (sections 11 and 12). As far as Employment Tribunals are concerned “legal officers” will be able to make legal decisions, including those determining proceedings, in place of an employment judge. There can be no doubt that this is nothing more than a cost cutting measure and has little if anything to do with the proper administration of justice.
Qualifying periods (effective 25 June 2013)
Section 13 deals with the removal of any qualifying period for a complaint of unfair dismissal based on political opinion (thus implementing European Court of Human Rights requirements identified in Redfearn v UK).
Section 14 enacts the Government’s desire to allow employers to attempt to negotiate severance terms without risk of having such negotiations used against them in a tribunal if they are unsuccessful. The protection applies only to unfair dismissal claims and there are several qualifications.
- (1) Evidence of pre-termination negotiations is inadmissible in any proceedings on a complaint under section 111. This is subject to subsections (3) to (5).
- (2) In subsection (1) “pre-termination negotiations” means any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.
- (3) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.
- (4) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.
- (5) Subsection (1) does not affect the admissibility, on any question as to costs or expenses, of evidence relating to an offer made on the basis that the right to refer to it on any such question is reserved.
Section 15 confers on the Secretary of State new powers to raise, lower and fix the level of any compensatory award. This is intended to cover the proposal that the compensatory award for unfair dismissal will be limited to the lower of one year’s salary or £26,000.
Fines for employers (effective for claims presented on or after 25 October 2013)
Section 16 permits Employment Tribunals to fine employers if they breach an employee’s rights and there are, in the opinion of the Tribunal, “aggravating features” (not defined). Fines must be at least £100 and not more than £5,000 and are payable to the Secretary of State (another measure calculated to swell Government coffers).
Whistleblowing (effective 25 June 2013)
Section 17 has only one sentence and simply provides that disclosures will not be protected unless made in the public interest.
The remaining sections deal with changes to Employment Tribunal procedures, increasing the deposit which may be required as a condition of proceeding with a claim to a maximum of £1,000 (effective 25 June 2013) and renaming compromise agreements as “settlement agreements” (why bother?!).