Enterprise and Regulatory Reform Act 2013 Employment Measures

Implementation Stages

The employment related provisions of the Enterprise and Regulatory Reform Act 2013 coming onto force on 25 June 2013 are set out below.

Just a reminder that the following provisions came into force on 25 April 2013:

S.10 – Prohibits ACAS, or those appointed by ACAS, from releasing information relating to a worker, employer of a worker, or a trade union, that they hold in the course of performing their functions, except in specified circumstances, e.g. a criminal investigation.

S.98 – An enabling power to make regulations to require employment tribunals to order an employer that loses an equal pay case to carry out an equal pay audit

Also a reminder that in our News Update published on 14 June 2013, we set out set out the implementation dates for the majority of the Act’s other employment measures, following publication by the BIS of an indicative timetable.

Measures coming into force on 25 June 2013

S.12 – EAT proceedings to be heard by a judge sitting alone. However, a judge may direct that proceedings are to be heard by a judge and either two or four appointed members. In addition, a judge may, with the consent of the parties, direct that proceedings are to be heard by a judge and either one or three appointed members.

S.13 – The two years' employment qualification period will not apply where the reason (or principal reason) for dismissal is the employee’s political opinions or affiliation. However, such a dismissal will not be an automatically unfair dismissal and will be subject to the normal fair and reasonable tests.

S.15 – Providing a statutory power to vary the cap for the unfair dismissal compensatory award limit, which under the Unfair Dismissal (Variation of the Limit of Compensatory Award) Order 2013 will be the lower of 52 weeks' pay or the existing statutory cap (£74,200), and the calculation of 52 weeks' pay will be based on the statutory definition of “a week's pay” in the Employment Rights Act 1996 (note that the date when the Order will come into force is not yet clear).

S. 17 – Inserts a specific public interest test into S.43B of the Employment Rights Act 1996 (disclosures qualifying for protection) to ensure that, in order to benefit from protection, whistleblowing claims must in the future satisfy a public interest test and disclosures which can be characterised as being of a personal rather than public interest will not be protected, e.g. if a worker does not receive the correct amount of holiday pay (a contractual breach), this is a matter of personal rather than wider interest. The claimant must also show that the belief that the disclosure was in the public interest was reasonable in the circumstances.

S. 18 – Removes the requirement in Ss. 43C, 43E, 43F, 43G and 43H of the Employment Rights Act 1996 (whistleblowing provisions) that a public interest disclosure must be made in good faith in order to be protected. However, in addition, the section also provides employment tribunals with the power to reduce an award of compensation by up to 25%, where a protected disclosure has not been made in good faith.

S. 20 – Widens the definition of “worker” in section 43K of the ERA 1996 relating to public interest disclosures to include specified workers providing health services delivered by contractors in the NHS who are not currently afforded whistleblowing protection and provides a power for the Secretary of State to amend the definition of “worker” in section 43K so it can more readily be amended so as to keep it up to date.

S.21 – An enabling power to make regulations giving tribunals the power to make a deposit order in respect of a specific part of a claim or response (rather than the whole claim or response) and to make an order for payment of witness expenses where it has also made a preparation time order.

S.22 – Increasing the limit on a week's pay and other tribunal limits by rounding up or down to the nearest £1 instead of the nearest £10 or £100 and changing increase date from 1 February to 6 April.

S. 64 – Amends Part 1 of the Equality Act 2006, to clarify the EHRC’s remit by removing some of its powers, principally, the duty to promote good relations between members of different groups and the power to make arrangements for the provision of conciliation in certain non-employment-related disputes.

S.72 – Abolishing the Agricultural Wages Board for England and Wales and introducing Schedule 20 (from 1 October 3012), which amends the National Minimum Wage Act 1998 to bring agricultural workers within scope of that Act.

S.97 – Placing a duty on a Minister of the Crown to make an order to include caste as an aspect of the protected characteristic of race in the Equality Act 2010, thereby prohibiting caste discrimination and harassment related to caste, but which will be subject to a review after five years.