Implementation dates announced
Labour & European Law Review Weekly Issue 322 06 June 2013
The Enterprise and Regulatory Reform Act 2013, which came into force on 25 April, sets out the implementation dates of a number of new employment law provisions over the next few months.
The first provisions to come into force on 25 June relate to whistleblowing. Section 17 of the Act will restrict qualifying disclosures to those which “in the reasonable belief of the worker making the disclosure” were made “in the public interest”.
A qualifying protected disclosure no longer has to be made “in good faith” but tribunals will have the power to reduce a compensatory award by up to 25 per cent if it was not. Currently, If a tribunal finds that a disclosure was not made in good faith, the claim fails completely.
Whistleblowing claims will also have to satisfy a public interest test, with the result that disclosures which can be characterised as being of a personal rather than public interest will not be protected. For example, if a worker does not receive the correct amount of holiday pay (which may be a breach of the terms of their employment contract), this will be deemed to be a matter of personal (not public) interest. The claimant must also show that the belief that the disclosure was in the public interest was reasonable in the circumstances.
A number of other provisions also come into force on 25 June. These include the provision to claim unfair dismissal where the dismissal relates to the employee’s political opinion or affiliation and the effective date of termination is after 25 June. No qualifying period will apply to a claim of unfair dismissal on this ground. The Secretary of State will also have the power from 25 June to introduce a cap on the compensatory award of 12 months’ pay or £74,200 (the current cap), whichever is the lower.
The date for the implementation of fees in employment tribunals and Employment Appeal Tribunals will be 29 July. This means that, from this date (subject to the necessary Parliamentary approvals being granted), all tribunal claimants and EAT appellants will have to pay a fee or submit an application for remission of the relevant fee.
The provisions relating to financial penalties on employers are likely to come into force in respect of any tribunal claim presented on or after 25 October 2013, although this is not entirely clear as yet.
Section 16 of the Act adds a new section 12A to the Employment Tribunals Act 1996, giving tribunals the discretion to impose a financial penalty of between £100 and £5,000 on an employer where there has been a breach of a worker’s employment rights and the tribunal considers that, in the circumstances, the employer’s behaviour had one or more aggravating features. It is not clear what amounts to an aggravating factor and tribunals have to have regard to the employer’s ability to pay when deciding whether to order them to pay a penalty under this section.
Implementation dates for a number of other amendments including changes to the Equality Act have yet to be announced.