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What does the future hold for employment law?

No sensible person would agree to be the Mystic Meg of employment law, predicting the future beyond the date of the general election, says Stephen Levinson. That I agreed to do this foolish thing might incline you to stop reading, but if not, with all the usual caveats, here goes.

Small Business Bill

The Small Business, Enterprise and Employment Bill has just been published. The Bill will change the law in relation to zero hours contracts and will tighten up the rules relating to the national minimum wage (NMW). There will be an increase in the level of fines for those who fail to pay the NMW and exclusivity clauses in zero hours contracts will become unenforceable . Other changes in the Bill include new rules allowing the "claw back" of redundancy pay from employees re-employed in the public sector. There are also further changes to the tribunal rules, including the introduction of financial penalties for employers that fail to pay tribunal awards.

Equal pay audits

We now also have eight pages of draft regulations on equal pay audits to absorb. The new regulations determine the exact nature of the audits, their specific requirements and the powers of the tribunal. Here the government are walking a tightrope as their aim to reduce red tape clearly conflicts with what will be an increased burden on some businesses. The wish to reduce the gender pay gap has prevailed. As part of the balancing act there is an exemption for micro-businesses (fewer than 10 employees). There will also be cash penalties for non-compliance. Tribunals are to sign-off audits and there will be an obligation to publish the results on websites for three years so that they are available to the whole workforce unless the tribunal gives leave not to do so for legal reasons.

Whistleblowing

The law surrounding whistleblowing is due for a refit and here changes are likely to be focused on extending the scope of workers who are protected, particularly in the health sector, and the role of regulators. The list of prescribed persons is likely to be expanded following the inclusion of all MPs to this status.

Consultations on trade unions, the City and discrimination

With regard to consultations in progress we have, of course, the Carr enquiry into trade union tactics. The TUC have decided this is simply a political stunt and have blackballed the enquiry ensuring that no one who is either a part of the trade union movement or any of their professional advisers will participate. Originally proposed in reaction to the problems at Grangemouth, its scope has been widened but it remains to be seen whether the head-in the-sand tactic of the TUC will succeed in making the consultation a pointless exercise.

Bankers are probably due for another bashing following the forthcoming Senior Persons Regime consultation which will impose revised rules for the regulation of City heavy-hitters. There is an ongoing discrimination review being carried out under the auspices of the EHRC which is investigating the scale of maternity and pregnancy related discrimination. The intention is to announce the initial results in spring 2015. In the meantime ACAS is working on non-statutory guidance on their Code of Practice on the right to request flexible working.

General election

Moving on to some political predictions, what will the outcome of a general election bode for the HR community? Formal policy announcements are not due until the summer so this is speculative even if based on actual pronouncements of party leaders. Let's begin with the Labour Party and assume that all of Chuka Umuna's criticisms of government action will translate into policy. If they do tribunal fees will be slashed or abolished, unfair dismissal compensation caps will rise and the qualification period for unfair dismissal will go back to one year or less. In addition the minimum wage will be related to increases to the cost of living and public sector contracts will not be issued to any company that blacklists union activists. Finally Labour were outraged by the abolition of the Agricultural Wages Board without debate so just possibly it may receive a kiss of life but that is only an outside possibility.

If there is a Conservative government be fearful for the future of 'tribunals' as there is a definite strand of thinking in favour of removing lay members entirely. This is part and parcel of the Ministry of Justice's long-term intention which (in my view) is to bring to an end to the separate jurisdiction of employment tribunals altogether. However, no admissions will ever be made to this effect for a long while. Tribunal fees will remain though they may not be increased in a hurry given the massive downturn in the number of applications. It is highly likely that a Conservative government would strive to change working time rules though this may involve intensive lobbying in Brussels. The Carr enquiry initiative reveals a wish to change the laws regulating strikes so expect a revival of the arguments over requiring higher levels of endorsement from members before a strike may be called.

Liberal Democrat policies on employment are opaque at present. Nick Clegg has announced that they will be new, bold and liberal but that is not exactly specific. As for UKIP most of their declared policies depend on withdrawal from Europe. They say they want to put an end to rules relating to weekly working hours, holiday overtime, redundancy and sick pay and replace it with a standard statutory employment contract template. Parental leave would be a matter for the sole judgement of employers. It sounds radical and not even half-baked to me but everyone will have their own views about this, as they will of my skill as a forecaster.

Now what did I do with that crystal ball?

This article was written for, and first featured in the CIPD newsletter

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This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.

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