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Key employment law reforms proposed at annual party conferences
Friday 13th February 2015

In September / October 2014, the Conservative, Labour, and Liberal Democrat parties proposed and debated various reforms, at their respective annual conferences. With the general election in May 2015 fast approaching, we summarise the key proposed reforms of each party, which will have a significant impact on the employment law landscape, if successful.


  • Ending the use of exclusive zero hours’ contracts. David Cameron stated that the Conservatives would “scrap” exclusive zero hours’ contracts. It remains to be seen how this will be achieved, although the Confederation of British Industry has welcomed this proposal.
  • Potentially adding maternity pay for self-employed mothers to their election manifesto. Details are awaited.
  • Preventing the trafficking of workers. The Conservatives intend to achieve this through the Modern Slavery Bill.
  • Introducing a British Bill of Rights. If elected in 2015, the Conservatives will pass a new British Bill of Rights, which David Cameron suggested would replace the Human Rights Act 1998. This would effectively provide the UK parliament and courts with the final say on such matters as opposed to the European Court of Human Rights. The Law Society has responded, commenting that the Human Rights Act 1998 should be “retained, not replaced”.
  • Changing the rules on strike action. Proposals include:
    • A 50% minimum voting threshold for a strike to be lawful.
    • A new three month limit after a ballot for the strike action to take place
    • A requirement for 14 days’ notice before unions take industrial action.
    • The criminalisation of certain types of picketing.
    • The current code of practice on picketing to become legally binding.


  • Proper rights at work and restricting the use of zero hours’ contracts. This includes introducing new laws so that employees on zero hours’ contracts who are working regular hours will be entitled to regular contracts. Employees on zero hours’ contracts will also have the right to refuse requests to be available outside their contracted hours and will receive compensation when shifts are cancelled on short notice.
  • Ensuring equal rights for self-employed individuals. Further details are awaited on what this might mean specifically and how this would be achieved.
  • Requiring companies to publish details of average pay to promote equal pay. Promoting equal pay between men and women. According to a senior member of the party, equal pay is viewed as ‘unfinished business’, which should have been addressed in Labour’s previous government.
  • “Cracking down” on rogue employers who avoid the minimum wage, and increasing the national minimum wage to £8 an hour by the end of the next parliament in 2020. This is stated to be a ‘target’. Labour has also proposed to provide tax breaks to businesses that pay the living wage.
  • Removing barriers for parents returning to work. The Labour Party have pledged that they would:
    • Provide 25 hours of free childcare for three and four year olds for all working parents.
    • Require breakfast clubs and after school clubs to be provided.
    • Increase opportunities for flexible working across the public sector
  • Tackling ‘rogue’ employment agencies. The Labour Party believes that the number of ‘rogue’ employment agencies has increased in recent years. The Labour Party proposed to tackle this by removing the Swedish Derogation from Agency Workers Regulations 2010, banning overseas only recruitment and introducing further measures on which the party will consult.
  • Migrant workers. It has been reported that the Labour Party plans to make it a criminal offence to exploit migrant workers by paying them lower wage rates and offering worse conditions than local employees receive. In order to prove that a criminal offence had been committed, evidence would need to be provided, which demonstrates that some abuse of power had occurred and that overseas nationals were employed on significantly different terms to local employees.
  • Abolishing employment tribunal fees? On 8 September 2014 the Shadow Secretary of State for Business, Innovation and Skills, Chuku Umunna MP indicated that Labour will undertake major reforms of the employment tribunal system if elected in 2015. Mr Umunna suggested that the introduction of fees in the employment tribunals has curtailed individuals’ access to justice and is both “unfair” and “unsustainable”. He stated that Labour would “abolish the current system, reform the employment tribunals and put in place a new system”, although no further details were provided. It has been reported that Labour will not abolish tribunal fees altogether but will introduce better means testing.
  • Double paid paternity leave to four weeks. Ed Miliband has announced that a Labour government would double the amount of paid paternity leave available to new fathers from two to four weeks and increase statutory paternity pay by more than £120 a week to £260, paid for by savings in tax credits.

Liberal Democrat

  • Requiring equal pay information disclosure. Invoking the power under the Equality Act 2010 to require companies which employ more than 250 people to publish the average pay of their male and female workers.
  • Increasing the national minimum wage. Instructing the Low Pay Commission to consider ways of increasing the national minimum wage and improving enforcement action.
  • Increasing the national minimum wage for apprentices. Business Secretary Vince Cable MP announced in his key notice speech that he would present a proposal to the Low Pay Commission to increase the minimum wage for apprentices in the first year of their apprenticeship by over £1.
  • Setting a Living Wage. Establishing an independent review to consult on setting a Living Wage, which would be paid by all central government departments and executive agencies from April 2016 onwards.
  • Creating a new Workers’ Rights Agency. Vince Cable also announced plans for a ‘one stop shop’ for workers’ rights enforcement, which will become part of the Liberal Democrat manifesto in 2015. The new Workers’ Rights Agency would streamline the work of four existing bodies: the national minimum wage enforcement section at HMRC, the Working Time Directive section at the Health and Safety Executive, the Employment Agency Standards Inspectorate, and the Gangmasters Licencing Authority.
  • Granting fathers an additional four weeks’ paternity leave.
  • Anonymising public sector recruitment. Party members have backed a ‘name-blank’ application form in the public sector, in an attempt to cut discrimination.
  • Increasing inspections of employers to check for compliance with employer legislation. Doubling the number of employer inspections, to “ensure all statutory employment legislation is being respected”.


Employers beware - 10 things you may not know about shared parental leave
Tuesday 27th January 2015

New rights for working parents to take time off work to care for children have come into force. Shared Parental Leave (SPL) is available for parents of children born or placed for adoption on or after 5 April 2015. The main features of these new rights have been widely publicised. However we have pored over the detail and uncovered potential skeletons in the closet. In no particular order…

1. Shared parental leave – just parents? - The right to take SPL arises in respect of birth mothers, biological fathers or the mother’s spouse, partner or civil partner. Partner is defined as someone who lives with the mother in an “enduring family relationship” but is not the mother’s child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew. This raises the prospect of applications for leave being made by persons other than biological fathers on the basis that they are in a relationship with the mother and intend to assist in caring for the child. It will be a difficult road for an employer to challenge eligibility.

2. Absent Fathers – What about the absent biological father? Are they entitled to leave in addition to the mother and mother’s spouse/partner? Assuming they satisfy the other eligibility criteria there appears to be no reason why the right to leave could not be asserted, even if the mother and partner have already made arrangements between them to take SPL. This could raise sensitive and difficult issues for employers.

3. What evidence can I ask for? – ACAS take the view that the employer should grant SPL and pay based upon the information provided by their employee. Employers can request a copy of the birth or adoption certificate and the name and address of the employee’s partner’s employer. Time will tell how many employers will take these steps and how many employers will feel comfortable in responding to external enquiries.

4. Going round the block – The total amount of SPL which can be shared is 50 weeks with both the mother and partner being allowed to take the leave at the same time or separately and either in one block or a discontinuous block. Discontinuous blocks could be for example: 4 weeks leave, 3 weeks back at work and another 4 weeks leave on a rolling basis. Employers don’t have to automatically grant requests for discontinuous blocks but how far can an employer go in discouraging such applications? We have already seen suggestions of bans in policies and financial incentives to take continuous blocks only.

5. Are we covered? – With the prospect of applications for discontinuous leave, and a minimum of only 8 weeks notification period to take the leave, together with the right to cancel or vary, expect difficulties in arranging suitable job cover especially in critical or customer facing posts.

6. Enhancing it - Shared parental leave is paid at the statutory rate – ca £138 per week. Where employers already enhance their maternity pay, will there be a discrimination risk if employers don’t enhance shared parental pay? Further, would mothers be able to take advantage of enhanced maternity pay and then go on to take enhanced shared parental leave pay, or should there be an offset? Suffice to say this is a fiendishly complex area of law and one that has not been fully tested.

7. Keep it in the family – Couples working together at the same employer may choose to take the leave concurrently. Provided that each applies for a period of continuous leave the employer cannot refuse the leave. This could create particular problems for small businesses.

8. Budget for the SPLIT – Both parents are eligible to use up to 20 keeping in touch days (known as SPLIT days) which could be used alongside shared parental leave to enable a return to work on a more flexible basis.  Where these are granted these should be paid at the normal rate of pay. Employers granting these should consider their budgets carefully.

9. Return dates – Depending on the length of SPL taken, the employee has a right to return either to the same job or if that is not reasonably practicable, a job that is both suitable and appropriate for the employee to do. This mirrors the protection already in place for maternity leave returners but with these rights will now apply across the board to both male and female job returners.

10. A damp squib? – Despite widespread predications that take up of SPL will be low, a recent survey has shown that almost two-thirds of men and women would be interested in taking up SPL– a huge contrast to government estimates. According to the research, based on responses from 250 employees working for FTSE100 employers, 62% showed an interest in taking a period of SPL after the rights come into force. [Linklaters 20 November 2014]


Rory wins at Hoylake: British summer of sporting despair ended!
Monday 21st July 2014

And so the week (and months and years of preparation) ended: Rory McIlroy wins the oldest and most revered major championship in golf.

At the still tender age of 24 he has now completed three-quarters of the Grand Slam and the talk has already started of the Masters – the one he needs to complete the Slam - next April. Rory collapsed there in 2011 holding a lead in the final round. Now older, better and wiser all will consider him the favourite.

Whilst Sunday’s final round at Hoylake wasn’t the procession many expected (and many players particularly Sergio Garcia and Rickie Fowler gave him a run for his money), it is the manner of Rory’s three majors to date that makes us realise we have a phenomenon in front of our eyes. He destroys the field and the accelerator stays on the floor as he flies over the line. No safe shot played short of the last green - he went for it but caught the bunker short and right. Giving us palpitations his bunker shot was in truth slightly thin but nearly crashed into the flag giving us relief. Two more putts and the silver claret jug, golf’s holy grail, was his.

At the winners reception I talked to his coach. Rory is barely five foot nine inches tall and not a lot of weight but he hits the ball prodigious distances. His coach told me he is unusually flexible and the speed he can generate is through the extraordinary coil and spring from his flowing athletic action. Others have to bulk up to achieve power – Rory does gym work of course – but the power comes from his natural flexibility. As we talked of the Grand Slam I asked how he would approach the mental side? “He can handle it: he’s getting wiser and learning from all that happens to him.

I talked to his Mum and Dad: “What was it like last night before his final round?” I asked Mum. “Oh we always try to be normal, normal things to eat and normal talk – but we don’t talk about the elephant in the room – normal’s never quite normal is it?

I say a word to Rory: “You’re on the same plane as Tiger when he won here eight years ago. Wonderful playing. Best of luck for the future.” and Rory gives me, like so many other well wishers, grateful thanks truly felt and intended.

Now the reflections start. Hoylake add McIlroy to their honours board: the last two Opens here have yielded arguably the greatest ever player, Tiger, and now his young heir apparent – Rory. The Royal and Ancient Golf Club of St Andrews, the Royal Liverpool Golf Club and the Metropolitan Borough of Wirral can sleep soundly after another exceptionally staged Open.

And so the clearing up begins!!

Rory McIlroy with Andrew Cross


The Open Championship Hoylake - What changes can we expect in 2014?
Monday 14th July 2014

So what changes can the spectator expect to see at Hoylake in 2014 compared to 2006? To show just how much things have changed readers may recall that mobile phones were banned following Tiger Woods 2006 complaint of too many photographs being taken whilst he was playing.

We have come full circle. This year the R&A will actively encourage people to bring their smart phones and this will be the first major sporting event with Wifi accessible by all spectators – you will be able to log on via an R&A app and watch live BBC coverage on your mobile phone at the same time as watching the players in real time!!  Almost every Green will have electronic score boards showing pictures of the players approaching the Green, a leader board and the player’s scores.

To enhance the drama of the gladiatorial entry and exit of the players to the first tee and from the 18th Green there will be a large overhead walkway with zip wires so the arriving or departing gladiator can be followed in his pomp (or his misery) all adding to the excitement! There will be unreserved seating for 22,000 in stands and all under 16 get in free!

The huge logistical exercise of planning and preparation is well advanced –consider just a few random statistics: 1,200 Marshalls from a dozen local clubs; near enough 10,000 people working at or near the golf course; 3 park and rides and streams of buses provided by the Local Authority; the closure of West Kirkby railway station so that the terminal becomes Hoylake and fans can enjoy unparallelled access via the rail networks. Over 1,000 journalists and media folk from all over the planet. Three global broadcasters.  Not least an estimated 400,000 pints of beer drunk during the week on the course alone – it’s just as well we have a good drainage system installed!

For the golfing purist the course is only a little bit longer than in 2006, we’ve changed the first green, added some rough ground and run off areas, but have taken some of the bunkers out – only to add more devilish bunkers with greater collection areas!

Finally the weather… and Tiger

So as the practice days now proceed (come and see the world’s giants even before the gun goes off!) and the event is only three days away, the weather apps tell us the temperature will be high with sunshine and some showers. The course is looking immaculate – a very different golf course to the one in 2006 - longer, lusher rough and more receptive greens. Of the early practice I’ve seen Adam Scott looks terrific. Undoubtedly the best home chance (with no disrespect to Rory MacIlroy) is Justin Rose fresh off two consecutive wins at two difficult and different golf courses.

And of course we were delighted to welcome back arguably the greatest golfer of all time and the best known sports face on the planet (with no disrespect to David Beckham!). Tiger is back - the reigning Hoylake Open Champion got in on Saturday and on Sunday practised in front of several thousand - some fascinated, some adoring (cries of “we love you Tiger”), all willing him to do well. He seemed untroubled by his back (an operation at the end of March keeping him from competitive golf until two weeks ago) and as focussed as ever.

So let the Games begin….. come and enjoy the circus and the world’s greatest golfers at one of the world’s most revered venues!

Come back next week to read Andy’s review of the Open.



The Open Championship - Hoylake
Monday 7th July 2014

Andy Cross, Employment Partner at Brabners, is one of Royal Liverpool Golf Club’s Championship Committee for the 2014 Open and he is looking after PR & Media for the Club.

Andy was Club Captain and presented the Claret Jug to Tiger Woods in 2006 the last time the Open was played at RLGC.

He reports below on the Open Championship, a true global sporting spectacular, which returns to Royal Liverpool Golf Club (known to golfers as Hoylake) from 17 - 20 July 2014.

I can hardly believe it’s 8 years ago that the Open was last held at Hoylake (after a 39 year absence) and the best player in the world, Tiger Woods, probably then the best known sporting face on the planet, won the greatest and oldest golf major in the world watched by record crowds (230,000) basking in sunshine with record worldwide TV audiences (450 million) who must have imagined that this was the Mediterranean not Merseyside!  Tiger described the course as “a fantastic test” and the R&A described the event as “the greatest ever staging of an Open Championship”. So we have something to live up to – no pressure then!

More than a sporting event

Quite apart from the intense sporting interest the impact of the Open on the local economy is said to be worth £75 million (something like £25 million in immediate value and the balance in long term gains)

A fantastic spotlight is poured on our region. Wirral Local Authority have enthusiastically supported the tournament knowing the high profile it brings all over the world improving the prospect of inward investment to our region. Note for example the increasingly economically dominant nations of China and India are both also enjoying golf booms. It is a wonderful coincidence that the International Festival for Business has its last week as the week at the same time as the Open.

In any year a lot of business is done at the Open. If you fancy doing some corporate entertaining you will find yourself in high company from the powerful global Blue Chip Companies who are “patrons” of the event (Rolex, HSBC, Nikon, Mercedes amongst others) to a host of national and regional businesses all anxious to be at the party. 

High rollers drop in for the Open – if I can be forgiven some name dropping from my 2006 experience I recall a deal being fostered between Boeing and Rolls Royce – the occasion a quite unassuming four ball on the Friday before the Open started. I partnered HRH The Duke of York and we took on the Chief Executive Officer of Boeing and the Secretary of the R&A - tea afterwards with the Chief Executive of Rolls Royce and the deal was virtually sealed!

To see an interview with Andy about this year’s championship please click here.

You can find out what changes there will be in 2014 in Andy’s next blog on Monday 14 July.


E-cigarettes – What practical steps can employers take?
Friday 6th June 2014

Employers have the final say and the impression we have received is that employers are generally reluctant to allow e-cigarettes into the workplace.

As with all employment rules and policies, clarity is key.

If you want to prohibit the use of e-cigarettes but do not have a no-smoking policy, then consider introducing one straight away. The policy should explain that e-cigarettes are treated no differently than more traditional forms of smoking.

If you already have a no-smoking policy, then amend it to deal with e-cigarettes. This could include, adding a provision expressly banning the use of e-cigarettes in the workplace, in company vehicles and where employees are supplied out to client sites. Alternatively, if you are going to tolerate e-cigarettes say at break times and in certain designated areas then make sure that the rules are clear.

Also, explain the consequences of failing to adhere to the policy; for example, that it may result in disciplinary action.
Whatever stance you take on e-cigarettes, inform yourself as best you can and consider how you might provide support and guidance to employees struggling with addictions, including addiction to nicotine.

Click the links to read Joseph's previous blogs "E-cigarettes – What do employers need to know?" and "What are the issues in the workplace?"


E-cigarettes – What are the issues in the workplace?
Wednesday 4th June 2014

Employers have a statutory and common law duty to protect the health and safety of their employees and have to approach the issue of e-cigarettes with caution.

If e-cigarettes are allowed into the workplace, employers run the risk that colleagues may become upset especially those who are pregnant or have respiratory conditions or those who may be trying to give up all forms of smoking themselves.

At the same time, employees who use e-cigarettes are starting to raise issues. If they are not going to be allowed to use them inside then surely (they say) they should not be made to use the smoking shelter exposing them to “real” cigarette smoke – particularly if they are using e-cigarettes as a means of giving up.

Added to this is the question of how e-cigarettes are perceived. E-cigarettes are designed to “renormalise” the concept of smoking, at a time when smoking in the workplace is not allowed. They are new and innovative in design but are they acceptable in a professional working context or at a client meeting?

So, what practical steps can employers take? You can find out in Joseph’s next blog on Friday 6 June.


E-cigarettes – What do employers need to know?
Monday 2nd June 2014

E-cigarettes have become a very common sight on the streets, in and outside pubs and now, increasingly, in and outside the workplaces of the UK.

These battery-powered devices simulate tobacco smoking by turning nicotine and other chemicals into a vapour that is inhaled by the user and resembles smoke. It is estimated that more than 2 million people currently use e-cigarettes in the UK; two-thirds of users being smokers and the other third, ex-smokers.

The latest generation of e-cigarettes bear little resemblance visually to normal cigarettes and are marketed as a safer alternative to smoking. Concerns have been raised in some quarters about the properties of e-cigarettes but there remains a lack of awareness as to whether or not being exposed to the vapours comes with a genuine health risk.

An employee who pulls out their e-cigarette at an internal meeting may say, so what – it’s not illegal? Some employers have been left flummoxed and there is little common ground out there as to how businesses should respond.

Whilst smoking in enclosed or substantially enclosed public places, including workplaces, has been prohibited since July 2007, e-cigarettes are not covered by the smoking ban, nor are they regulated as a tobacco product or as a medicine in the UK.

With this in mind, The British Medical Association (BMA) has campaigned for stronger control on where e-cigarettes can be used and have suggested that current smoke free legislation be extended to include e-cigarettes.

As a result of concerns about the lack of regulation, the Medicines and Healthcare Products Regulatory Agency (MHRA) are to regulate e-cigarettes as medicines from 2016. It is hoped that regulation will bring greater clarity about the products and their safety.

Want to know more? Joseph will be covering the issues e-cigarettes can cause in the workplace in his next blog on Wednesday 4 June.


Stop Press: Government to review level of employment tribunal fees
Friday 4th April 2014

Jenny Willott MP (minister for employment relations and consumer affairs) reported on Wednesday that the government will consider lowering employment tribunal fees as part of a review of the regime and a number of aspects of the system will be under review.

Payment of fees in the employment tribunals was introduced on 29th July 2013. Under the current system Type A claims such as unpaid wages and redundancy payments and payments in lieu of notice attract an issue fee of £160 and a hearing fee of £230, while for Type B claims such as unfair dismissal, discrimination and whistleblowing claims the issue fee is £250 and the hearing fee £950.

On 7 February 2014, the High Court dismissed Unison's challenge to the introduction of fees by way of judicial review. The union had argued that the introduction of fees breached the EU principle of effectiveness because it made it "virtually impossible or excessively difficult" to exercise individual rights conferred by EU law. It also argued that the introduction of fees breached the public sector equality duty and the EU principle of equivalence (by making domestic rules of procedure for the exercise of EU-derived rights less favourable than those governing similar domestic actions), and that it was indirectly discriminatory (since the higher fees in Type B claims disproportionately affected women on "average incomes" who are not entitled to fee remissions, as well as other individuals with protected characteristics).

Unison has until 14th April to apply directly to the Court of Appeal for an appeal and will rely on government statistics showing that the number of claims fell 79% in the final quarter of 2013 compared with the final quarter of 2012.

Employers should be aware that a reduction in the level of employment tribunal fees is likely to lead to a corresponding increase in the number of claims. If you receive a claim or a threat of one, it is important that you seek professional advice in good time before responding.  Please contact us for assistance at your earliest opportunity.


Employers cannot “rubber stamp” opinion of Occupational Health
Wednesday 5th February 2014

Under the Equality Act 2010 employers are under a duty to make reasonable adjustments for employees who are "disabled" within the meaning of the Act.  However, an employer will not be obliged to make reasonable adjustments unless it knows or ought reasonably to know that the individual in question is disabled and likely to be placed at a substantial disadvantage because of their disability.  How are employers to judge this?

Often an employer will use occupational health advisors to provide a report. That is what happened in the recent case of Gallup v Newport City Council.  Mr Gallop worked for Newport City Council. He told Newport that he was suffering from stress, with symptoms including lack of sleep and appetite, headaches and nausea. Newport referred Mr Gallop to be assessed by occupational health advisers. They wrote to Newport, saying that Mr Gallop had "stress-related symptoms" but there were no signs of clinical depression. On further occasions, they told Newport that they did not believe that Mr Gallop was "covered" as disabled under the Act. No explanation was given for this opinion.

Mr Gallop brought claims to an Employment Tribunal including a claim of a failure to make reasonable adjustments.

Newport argued that, although they had been advised that Mr Gallop suffered from work-related stress, he had not been diagnosed with a mental impairment sufficient to satisfy the definition of disability. It therefore denied that it had failed in its duty to make reasonable adjustments as it was not aware of any disability.  They argued that they were entitled to rely on the clear advice of Occupational health as to whether Mr Gallop was or was not "disabled”.

The Court disagreed holding that an employer could not deny knowledge of any disability by simply unquestioningly adopting the statement in the occupational health report that their employee was not disabled.  Responsible employers have to make their own judgements as to whether an employee is disabled.  An employer will usually want assistance from occupational health or other medical advisers. If such medical guidance advises that the employee is disabled, the employer will ordinarily respect that judgement, unless there is a good reason to disagree. However, where the guidance advises that the employee is not disabled, the employer must remember that it, and not the medical advisers, is responsible for making the final factual judgement. An employer cannot simply "rubber stamp" a medical adviser's opinion that an employee is not disabled. Further, Occupational health reports should focus on the elements of the test for establishing a disability, namely:

• Whether Mr Gallop had a physical or mental impairment.
• Whether that impairment has a substantial and long-term adverse effect.
• Whether the impairment affects his ability to carry out normal day-to-day duties.

Reports should not simply state whether an employee is disabled.