COMMENCEMENT DATES & FURTHER PARLIAMENTARY DEVELOPMENTS

It was been a busy time for Parliament this spring! The Enterprise and Regulatory Reform Bill received Royal Assent on 25th April 2013, there have been more developments in the saga of Employee Shareholders and BIS has published various implementation dates for forthcoming employment legislation. We report on these parliamentary developments.

The Enterprise and Regulatory Reform Act 2013 (ERRA)

Having received Royal Assent, various implementation dates for legislation contained in ERRA have been published by BIS. On 25 June 2013 the following will come into force:

• Changes to whistleblowing laws which introduces, amongst other things, a requirement that any disclosure must be in the “public interest”.
• Removal of the 2-year qualifying period of service in unfair dismissal cases where the main reason for dismissal is the employee's political opinions or affiliations. This followed the ECtHR’s decision in Redfearn v UK – although it does not make dismissal for political opinions an “automatic” unfair dismissal.

Some may be asking what about the new Employment Tribunal Rules? There was some confusion as to whether these were due to come into force in June. However, BIS have confirmed there is no date as yet for implementation of the new Employment Tribunal Rules (and no final version of the Rules has been published either!).

Other commencement dates are also still awaited for:

• Fees for bringing Employment Tribunal and Employment Appeal Tribunal claims (expected Summer 2013 – see commentary below)
• Confidential termination negotiations (expected Summer 2013)
• New caps on the compensatory award for unfair dismissal (expected Summer 2013)
• Employee shareholder status introduced (expected 1 September 2013 – see commentary below)
• Changes to TUPE – repeal of service provision change (expected October 2013)
• ACAS early conciliation scheme (expected 2014)
• Financial penalties for employers who lose tribunal claims (expected 2014)
• Changes to Equality Act (no indications known)

Employment Tribunal Fees – Draft Regulations before Parliament

The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 have been laid in draft before Parliament. According to a letter from the Tribunals Deputy Director at Her Majesty’s Courts and Tribunals Service the basis of the fees structure is:

• The person who seeks the order initially pays the fees;
• All types of Employment Tribunal claims and appeals and all parts of the process are covered by the fees charged;
• Fee levels are based upon the nature of the case, the stage in the proceedings, multiple claims and the number of claimants;
• Fees are to be paid at issue and before hearing, and for several specified applications;
• Sanction for non-payment of issue fees and hearing fees are that the claim will not be allowed to commence or continue in the Tribunal;
• Fees are payable in advance and before cost is incurred by HM Courts & Tribunals Service; and
• A provision allowing the tribunal to order that the unsuccessful party reimburse the fees paid by the successful party will be included in rules amendments.

So what are the levels of fees?The level of fees depends on the nature of the claim. For example, claimants will be required to pay an issue fee of £160 and a hearing fee of £230 in cases concerning unpaid wages, notice or redundancy pay (“A” claims). These fees increase to a £250 issue fee and a £950 hearing fee in cases of unfair dismissal and discrimination (“B” claims). There are a further five fees, ranging from £60 to £600, for certain applications once a claim has been accepted, such as an application to dismiss following settlement or to issue a counterclaim.

The Ministry of Justice is currently reviewing the remissions scheme which will exempt certain claimants from having to pay fees where they cannot afford to do so.

And finally… Employee Stakeholders – finally passed

This piece of legislation has been batted back from the Commons to the Lords and back again! However, on 24th April, following further government concessions, the House of Lords voted to accept the clause (having rejected it twice). This new, third, type of employment status is expected to be enacted in the Autumn.

The government’s further concession was that before an employee can become an employee shareholder they have to have taken independent advice – paid for by the employer. Other previous concessions included the first £2,000 of shares being free from income tax and a concession that existing workers will be protected from any detriment if they refuse to accept an employee-shareholder contract.