Employment law review

Bettina Rigg from Veale Wasbrough Vizards looks at recent employment law developments and scans the horizon for 2015

According to the HESA data for 2012/13 published in 2014, 55.2% of UK higher education institutions’ expenditure (£15.4bn) is on staff costs, so for this, and many other reasons, staff issues are always high on the list of topics of interest to managers in the higher education sector.

In this article we review some of the employment law developments in England and Wales in 2014 and their impact on staff in the sector, and scan the horizon for some of the issues we can expect in 2015.

Fewer claims in employment tribunals

In 2014 we saw the first full year since the introduction of fees in the employment tribunal and the introduction of ACAS mandatory early conciliation.

Since 29 July 2013 claimants have been required to pay a fee in order to present a claim in the employment tribunal, and following notification that a claim has been listed for hearing, unless due to their financial circumstances they are able to claim remission of fees. The amount payable varies depending on the type of claim with claims for discrimination, whistleblowing, unfair dismissal and equal pay attracting a fee of £250 for presentation of a claim and £950 following notification of hearing.

Then since 6 April 2014 claimants must contact ACAS before submitting a claim to the employment tribunal.

These two developments are generally considered to be responsible for a large reduction in the number of claims being made to employment tribunals. The tribunal statistics published by the Ministry of Justice for the quarter April to June 2014 indicate that the number of single claims received by employment tribunals in this period was 70% fewer than in the same period of 2013 although it’s unclear how much of this reduction is due to mandatory early conciliation rather than the effect of the introduction of fees. Anecdotally, we are aware that this trend is also being experienced in the higher education sector albeit that the claims that are still being brought are generally complex and frequently include allegations of discrimination.

On the face of it, fewer claims is good news for employers. However, there are concerns that disaffected employees who cannot afford to bring claims and who remain in the workplace may be disillusioned and de-motivated and that this will have an impact on the ‘health’ of organisations.

Flexible working

Since 1 July 2014, employees with 26 weeks’ continuous employment have had the right to request to work flexibly in relation to the hours they work, the times they are required to work and their place of work (as between their home and any of the employer’s workplaces). This is an extension of the right which was previously available to employees who were carers of children and certain adults. There is a prescribed procedure that employees have to follow when making an application and that employers have to follow when responding.

The obligation on employers is to deal with such requests in a reasonable manner and employers can only refuse a request on one or more of the eight grounds listed in the amended sections of the Employment Rights Act 1996.

It is too early to assess the take up of this extended right in the higher education sector. Certainly, the way universities respond to, and encourage, flexible working is an important part of the total reward package and will increasingly be an important element in recruitment and retention of academic and professional services staff.

Shared parental leave

On 1 December 2014 a new right of Shared Parental Leave came into force although the options to use the new Shared Parental Leave rights will only apply to parents who meet the eligibility criteria where the baby is due to be born on or after 5 April 2015, or for children who are placed for adoption on or after that date.

This will enable mothers, fathers, partners and adopters to choose how to share time off work after their child is born or placed. So for example, this could mean that the mother or adopter shares some of the leave with her partner, perhaps returning to work for part of the time and then resuming leave at a later date. The idea is that there will be a pot of leave and it is up to the parents how to use it. Parents will need to decide if Shared Parental Leave is the best option for them.

Employers can expect to start receiving notices of eligibility and the intention to take Shared Parental Leave from qualifying employees from January 2015.

The greatest challenge for employers will be the need to be more flexible than ever in workforce planning but there may be real benefits for staff and universities. The ability for a mother to be able to share parental leave with her partner to give her flexibility around say completion of a research project is just one example of how this can be of mutual benefit.

Fitness for work

The Fitness for Work Service is being introduced on a phased basis from late 2014. It includes a state-funded assessment by occupational health professionals for employees who are off sick for four weeks or more, and expert advice and assistance to facilitate return to work.

It’s too early to assess the impact of the scheme but it will be welcomed by employers, if it makes a significant contribution to helping employees back to the workplace.

Gender equality

Gender equality, and particularly the advancement of women, continues to be a challenge for the higher education sector.

Higher education institutions are subject to the public sector equality duty which, in the context of gender, includes the requirement for higher education institutions not only to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Equality Act 2010 but also to advance equality of opportunity between women and men.

One of the ways in which the higher education sector has responded has been through the take up of the Equality Challenge Unit Athena Swan Charter in relation to women in the science-related (STEM) subjects. However, it is clear that there are gender inequalities and imbalance in the arts, humanities and social sciences, in particular the under-representation of women in senior roles. From a legal perspective, this exposes institutions to the risk of discrimination and equal pay claims as well as action for failure to comply with the Public Sector Equality Duty with all the damage to brand and reputation that results whether or not claims are successful.

The introduction in 2014 of the trial rounds of a gender equality charter mark is intended to help institutions address the problem. The Equality Challenge Unit has recently
announced the award results for the trial rounds with the first award submissions welcomed in 2015.

Horizon scanning

Given the forthcoming general election, we are in a period of uncertainty about what employment law changes may come our way in 2015. There is talk of ending the use of exclusive zero hours contracts, introducing a British Bill of Rights to replace the Human Rights Act and wholesale reform of the employment tribunal system. All would have implications for the higher education sector.

We also expect to see an even greater focus on employee wellbeing both during the day-to-day employment relationship and where there are disciplinary proceedings, especially given the recent confirmation by the Court of Appeal that an employer could be found to have breached its duty of care towards an employee if it unreasonably commences disciplinary proceedings.

However, probably the most significant issue for 2015 will be the ongoing discussions and consultations about proposed changes to the Universities Superannuation Scheme. Without doubt, the higher education sector is entering choppy waters as it grapples with how to address the substantial deficit in the USS, and how to mitigate the risk that contribution rates will become unaffordable for both employees and employers.

Bettina Rigg is an employment lawyer and Head of Higher Education at leading education law firm Veale Wasbrough Vizards. Bettina can be contacted on 020 7665 0960 or at brigg@vwv.co.uk.



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