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Business Secretary Vince Cable has today announced the Government’s proposals for some of the most radical changes to UK employment law seen for many years. The main proposed changes are:

• an increase in the unfair dismissal qualifying period from one to two years
• compulsory lodging of all claims with Acas so that mediation can be attempted before they are lodged with the tribunal
• consultation on the introduction of protected conversations

It seems that the Government are also considering:

• reducing the minimum period for redundancy consultation to 60, 45 or 30 days
• a ‘rapid resolution scheme’ to enable simple claims to be settled within three months
• removing complaints about breach of employment contracts from whistleblowing protection
• financial penalties for employers who breach employment rights
• a fundamental review of employment tribunal rules of procedure
• Employment Judges sitting alone in unfair dismissal cases
• further changes to maternity and paternity leave, with a greater emphasis on involvement for fathers

The Government has finalised and published its guidance on the Agency Workers Regulations 2010, which come into force on 1 October 2011.

The Regulations temporary agency workers with the same rights to pay, benefits and holidays as permanent workers once the agency worker has been engaged on an assignment for 12 consecutive weeks.

In the recent case of McKie v Swindon College, a court has made clear that statements made by a past employer to a future employer about an employee can give rise to liability for damages for negligent mistatement, even if the statement is not an employment reference.

Since the case of Spring v Guardian Assurance 1995, it has been well established that an employer may be liable damages for negligently provided employment references. McKie extends this principles to statements made by former employers which do not amount to references.

The message here is that employers must tread very carefully when making any statement concerning a former employee, particularly when it has the potential to cause adverse consequences for the former employee.

From 6 April 2010, a new right to Additional Paternity Leave (‘APL’) will apply to parents of a baby due on or after 3 April 2011 and to adoptive parents who are notified that they have been matched with a child on or after that date.

The Additional Paternity Leave Regulations 2010 (the ‘Regulations’) confer the right to take APL on an employee who:

• in relation to the birth of a child, is the child’s biological father or the spouse or partner (of either sex) of the child’s mother; or
• in relation to the adoption of a child, is the spouse or partner (of either sex) of the person who, having been matched for adoption, has elected to take adoption leave (referred to as “the adopter” for the purposes of the Regulations).

An eligible employee’s statutory minimum entitlement is to one period of APL which must:

• be taken to care for the child;
• be taken in multiples of complete weeks; and
• last between two weeks and 26 weeks.

The period of APL must be taken within a “window” that starts 20 weeks after, and ends 12 months after, the child’s date of birth or placement for adoption and is dependent on the employee’s spouse, civil partner or partner having returned to work from their statutory maternity or adoption leave.

To be eligible to take APL, the employee must have sufficient continuous employment with their employer, the required relationship with the child and its mother or adopter and they must also satisfy the applicable notice and evidential requirements, including the provision of declarations from both themselves and the mother or adopter.

Once an employee has given eight weeks’ notice of their intention to take APL, their employer is obliged to confirm the start and finish dates within 28 days of receipt of the employee’s notice.

The government has published some helpful guidance for employers on APL on the business link website.

The Government has now published draft guidance on the Agency Worker Regulations which, among other things, provides further clarity on:

• what arrangements fall outside the scope of the Regulations;
• when the 12-week qualifying period for equal treatment is met;
• what constitutes pay for the purposes of the Regulations; and
• when agency workers will be entitled to bonus payments.

Important changes are being made to the tax treatment of post-termination payments made to employees after their P45 has been issued.

At present, where an employer makes a payment to an employee after their P45 has been issued, income tax can be deducted by the employer at the basic rate only, leaving the employee to account for any additional higher rate tax payable.

As from 6 April 2011, employers will have to deduct tax from such payments at source at the full 20%, 40% or 50% rate.

The High Court  has decided that equal pay claims can  be heard in the civil courts, even where they would be out of time in the Employment Tribunal. This means that an employee is not necessarily bound by the 6 month time limit in the Tribunal and may be able to start an equal pay claim many years after leaving their employment.

To read the full judgement, follow this link: Ashby & ors v Birmingham CC

The Government has now issued the Employment Equality (Repeal of Retirement Age) Regulations 2011 to correct the errors in the original version.

We now know that an employee can be lawfully retired if they are given notice of an intention to retire them by 5 April 2011 and the employee is, or will be, 65 years old by 30th September 2011.

The last date on which an employee can exercise their right to request to work beyond retirement is 5th January 2012, which means that an employee who is given 12 months’ notice of retirement on 5th April 2011 can exercise their right to request on the last day available.

The Regulations abolishing the default retirement age have now been laid before Parliament and have thrown up an unexpected problem for employers.

The Regulations, which come into force on 6 April 2011, mean that after that time:

• there will be no statutory default retirement age;
• there will be no exemption for retirement in the Equality Act; and
• it will no longer be possible to dismiss an employee by reason of retirement, meaning that the statutory retirement procedure will also go.

The Regulations contain transitional provisions which will allow for the retirement of some employees up to 30 September 2011. However, the transitional provisions have been drafted in such a way as to mean that an employer can retire an employee who reaches the age of 65 between 6 April and 30 September 2011, but not an employee who has already reached the age of 65 by 6 April. So, as currently drafted, the Regulations mean that the transitional provisions won’t apply to employees who reached the age of 65 before 6 April. That seems to be a strange, and probably unintended, anomaly.

Many employers have already given notice of retirement to employees aged 65 or over who they intend to retire between 6 April and 30 September. Unless the Regulations are amended, those employers will be at risk of unfair dismissal and age discrimination claims.

We suspect that this is a drafting error and the good news is that there is still time (around 5 weeks!) to correct it. If no amendment is made, employers who have already issued notices of retirement to employees over the age of 65 to expire between 6 April and 30 September 2011 should think carefully about the risks of proceeding.

The right to request time off for training to improve skills has been available to employees of organisations with 250 or more employees since April 2010. BIS has now issued a press release confirming that the right to request time off for training won’t be extended to employees of organisations with less than 250 employees, as previously planned.