Ready, set, go! What to expect in 2014

2014 is set to be another busy year. Here is a brief look at some of the things to expect and their potential impact.

1.  Discrimination questionnaires

2.  ACAS mandatory early conciliation

3.  Financial penalties

4.  Equal pay audits

5.  Employment tribunal fees

6.  The cap on unfair dismissal compensation

7.  Flexible working

8.  TUPE

9.  Support to tackle long term sickness

10.  The scope of collective redundancy consultation

11.  Overtime, commission and annual leave


1.    Discrimination questionnaires

will be abolished from 6 April 2014. Whilst this is largely good news for employers, as they are often used tactically by claimants to put pressure on a respondent to settle, you should still be prepared to answer reasonable questions from employees as a matter of good practice and in order not to appear unreasonable to a tribunal.

2.    ACAS mandatory early conciliation 

 is being introduced from 6 April 2014. Claimants may need to inform ACAS of their dispute before submitting a claim. This early conciliation stops the clock on the time in which the claimant can bring a claim and enables a last chance for the dispute to be resolved. This means the timetable for employment claims is likely to be pushed back even further from the original dismissal. It’s worth considering at an early stage who your witnesses will be and asking them to make a note of what happened and when, to avoid problems caused by fading memories.

3.    Financial penalties

may be imposed where an employer loses a claim when the employer’s breach has one or more “aggravating features” such as behaving unreasonably or negligently. Employers may be required to pay, to the Secretary of State, 50% of any financial award (minimum of £100 and a maximum of £5,000) with a reduction for early payment. There is no date for implementation, but this is expected to be some time in 2014. Whilst your HR team will already be aware of how to conduct a fair and reasonable dismissal, this is a good incentive to remind those responsible for dismissals how to conduct this process fairly.

4.    Equal pay audits

may be ordered by employment tribunals where employers have been found to have breached equal pay legislation. This is not yet in force but is expected to become law some time in 2014. As this will be fairly onerous, it is likely to lead to a greater pressure to settle equal pay claims, possibly at higher settlement figures.

5.    Employment tribunal fees

are subject to two judicial reviews brought by UNISON and a Scottish law firm. We have noticed a reduction in claims since the introduction of fees. Any removal of this is therefore likely to lead to an increase.

6.    The cap on unfair dismissal compensation

being the lower of £74,200 and a year’s pay, may be subject to judicial review after an application from a legal company. They are arguing that the cap is indirectly discriminatory towards older people who are likely to have longer service. Although it is rare for such high awards to be granted, and does not apply in certain cases such as discrimination, the cap provides welcome certainty for employers facing legal action. If the judicial review proceeds and is successful we can expect a return to over inflated schedules of loss.

7.    Flexible working

rights will be given to all employees (not just parents or carers) with 26 weeks’ service. This is subject to the usual grounds for refusal. This reform is expected to come into force in spring 2014. Employers will need to think about how they balance requests, particularly between those with and without caring responsibilities. Internal guidance should be produced to assist managers tasked with handling these requests.

8.    TUPE

is changing:

  • For a service provision change, activities carried on after the change must be activities which are “fundamentally the same” as the activities carried out previously. This provides employers with more opportunity to argue that a TUPE transfer has not occurred due to a change in the services.
  • Transferors will need to provide employee liability information 28 days before transfer rather than the current 14. This will prove useful for the new employer who currently only has 2 weeks notice of the contractual terms of the incoming employees.
  • A change in location will count as a fair reason for changing terms and conditions or dismissal following a TUPE transfer. At the moment only economic, technical or organisational reasons are permitted and changes in location often do not fall within this.

9.    Support to tackle long term sickness

will be provided by the Government from spring 2014. The service, which will be state funded, will provide:

  • an occupational health assessment for employees after four weeks of sickness absence; and
  • advice for employers, employees and GPs throughout the sickness absence process.

10.    The scope of collective redundancy consultation

is being considered by the Court of Appeal in the case of USDAW v Ethel Austin Ltd (in administration) and another (the "Woolworths case). The EAT decided that the words "at one establishment" should be disregarded during collective consultation for redundancy. The impact of this is where an employer is proposing make 20 or more redundancies in a 90 day period (regardless of location) collective consultation duties are triggered.

11.    Overtime, commission and annual leave

is under scrutiny. The case of Mr M Neal v Freightliner Limited held that overtime payments should be taken into account when the four week minimum statutory holiday pay is calculated. The employer in this case has applied for permission to appeal. In the recent case of Z.J.R. Lock v British Gas Trading Ltd and Others the Advocate-General stated that commission should also be taken into account when calculating holiday pay. The case will now proceed to the ECJ.


This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.