Where are we on changes for 6 April?
There's been a busy start to 2014 already with changes to TUPE 2006 in January, increased penalties for the National Minimum Wage which came into force on 7 March, and changes to spent convictions which took place on 10 March. But where are we on the changes planned for 6 April 2014?
More details on Early Conciliation
Early Conciliation (EC) means workers will have to contact ACAS before they can submit a claim to an Employment Tribunal. A number of regulations have now been published setting out the detail. EC will be available from 6 April 2014, but will only be mandatory for claims presented on or after 6 May 2014. Prospective claimants will initially have to complete an EC form online, or post it to ACAS, only with their name and address and the name and address of the person/organisation they would bring the claim against.
Alternatively they can telephone ACAS with those details and ACAS will fill out the form for them. Once received, an ACAS conciliation officer must try to promote a settlement for up to one month (which could be extended by up to 14 days). If settlement is not reached, or if either party chooses not to engage, the officer will issue an EC certificate, and the claimant may proceed with their ET claim.
How this affects the usual 3-month time limit for workers to bring claims is complex. Firstly, the time limit for bringing an ET claim will be put on hold while EC is attempted – effectively "stopping the clock". Secondly, if EC starts within a month of the expiry of the time limit, a further month is added after the end of EC for the worker to bring a claim. This means, for example, that if EC is initiated on the day before the time limit expires, an employee could potentially have up to 5 or 5½ months within which to bring a claim. Regulations about EC are still emerging and it may be a while until we have a complete picture of how it is going to work.
Abolition of discrimination questionnaires
This is still set to take place on 6 April, although discrimination questionnaires may still be used for acts of discrimination which occurred before 6 April but continued after that date. Despite being apparently a positive step, employers should not imagine that too much has changed.
Financial penalties for employers
Financial penalties are also set to come in as planned on 6 April. Employment Tribunals will have the power impose a financial penalty of up to £5,000 on an employer found to have breached a worker's rights, if there were "aggravating features". If imposed, the penalty must be 50% of any award to the worker (subject to the cap), but can be imposed even if no award is made. Prompt payment within 21 days will reduce the penalty by 50%. "Aggravating features" are not defined and are likely to be determined by case law.
Flexible working for all postponed
The right to request flexible working will be extended to all employees with at least 26 weeks' service under the recently passed Children and Families Act 2014, but the Government has recently confirmed that this will not go ahead on 6 April. It is now due to be implemented by 30 June 2014. When introduced, the rigid statutory procedure to consider flexible working requests will be replaced by a duty to consider requests "in a reasonable manner", accompanied by a Code of Practice from ACAS. A refusal will still need to be based on one of the permitted business reasons.