How does the Enterprise and Regulatory Reform Act affect employment law? (Part 3 of 3)

Year Published: 2013

Many of the changes in the Enterprise and Regulatory Reform Act affect employment legislation and employers need to be aware of these changes.

Following the first article, which reviewed the objective of encouraging the earliest resolution of disputes and the second article in the series on a more efficient tribunal system for all, please find the third and final article in the series below, which focuses on giving employers the confidence to hire new employees.

To give employers the confidence to hire new employees

Amendments to current legislation

  •  Whistleblowing

S. 43B of the Employment Rights Act 1996 will be amended by the Enterprise and Regulatory Reform Act 2013. The definition of worker will be extended as a result of NHS workers, who were previously excluded from protection.

A worker who makes a disclosure will only be protected if their disclosure was made in ‘the public interest’ removing the requirement for the disclosure to be made in good faith.

If the disclosure is not made in good faith, the tribunal have the discretion to reduce the award made to the claimant by up to 25% to attempt to address situations where the disclosure may be in the public interest but where ulterior motives by the claimant encouraged them to speak up.

Employers will be vicariously liable for any detriment that a worker received as a result of making a protected disclosure subject to the statutory defence, which will protect employers who have taken all reasonable steps to prevent such a detriment.

Employers need to ensure that their whistleblowing policies reflect the changes to the legislation and that all line managers have received the appropriate training.

  • Dismissal for political reasons

As a result of a recent decision in the European Court of Human Rights the act adds into the Employment Rights Act s.108 (4) which provides that there is no qualifying period in order to bring a claim of unfair dismissal if the dismissal was for political belief or affiliations. The dismissal will not be automatically unfair.

This will apply to all dismissals on or after 25 June 2013 therefore all policies must be amended to reflect this and line managers must ensure that they have received the appropriate training.

  • Third party harassment

Third party harassment was introduced into the Equality Act 2010 at s.40 and has now been repealed by The Enterprise and Regulatory Reform Act 2013.

Employers now need to amend their harassment policy however also need to clarify with employees that as this section has been repealed it does not permit the harassment of third parties and they should remind staff that harassment of any kind will not be tolerated.

  • Caste discrimination

Discrimination on the grounds of caste will be added to the Equality Act 2010. The Equality and Human Rights Commission has been asked to examine the nature of caste prejudice and will report back at the end of 2013 where hopefully further direction will be available.

Dates for implementation and supplementary guidance documents are expected shortly. Only time will tell whether these reforms have met the three objectives originally set by the government. By the implementation of fees and the early conciliation process the government are likely to achieve their objective of reducing claims within the tribunal system which is welcomed by employers, however the new legislation seems to have minimal impact on the employment relationship and employment practices as a whole.

For further information on this or any other employment matter, contact our employment team.

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