TUPE: micro-businesses now able to inform and consult with employees directly
The last of the changes made by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, which came into force on 31 July 2014, relaxes the obligations to inform and consult under TUPE by allowing micro-businesses to inform and consult employees directly.
The new regulation 13A of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) now provides that employers with fewer than 10 employees may directly consult affected employees in cases where there are no existing appropriate representatives and the employer has not invited any affected employees to elect employee representatives.
Where there is a dispute as to whether regulation 13A applies, the burden of proof will rest with the employer to show that it qualifies for the exemption. Further, this amendment only applies to transfers which take place on or after 31 July 2014.
Micro-businesses will be pleased to hear this as the previous obligations to inform and consult under TUPE do not always work well for them, as it often makes more sense to talk to the individuals themselves rather than go through representatives.
OTS final report on employee benefits and expenses published
The Office of Tax Simplification (OTS) published its final report on employee benefits and expenses on 31 July 2014; its aim being to simplify the taxation of accommodation benefits and termination payments.
The OTS's main, and most startling, recommendation is to replace the current £30,000 exemption applicable to termination payments with an income tax relief that is available only in the case of statutory redundancy. The existing exemptions, reliefs and reductions will be subject of consultation.
As a result of this, taxpayers receiving termination payments such as unfair dismissal awards or payments for wrongful dismissal will be at a considerable disadvantage. This proposal begs the question as to how HMRC will determine whether a dismissal is genuinely on the grounds of statutory redundancy, and the extent to which their legal analysis will give rise to allegations that employers and employees are attempting to circumvent this restriction.
In addition, the OTS proposes to revise the existing exemptions that apply to exclude accommodation from being a taxable benefit (including setting out factors that should be considered when determining whether the accommodation is a "perk"), changing the way in which the taxable benefit is calculated (so that it is based on the market value of the property), and introducing a general rule that certain ancillary services are tax exempt if the provision of accommodation is exempt.
It is possible that this may result in clearer legislation that is more consistently applied, although accommodation that was not previously taxable will not now fall within the revised exemptions.
Tribunal claims decline and the challenge to fees hots up
The third quarter of statistics since the introduction of fees in employment tribunals have been released and show a continuing decline in claims issued compared to the same quarter for the previous year. The figures for April to June 2014 again show that the number of single claims issued was down 70% on the same period last year. Interestingly, it was also a third lower than the previous quarter (January to March 2014), although the introduction of compulsory early conciliation, which came into force from May, could explain that dip, either as claims settle or issue is delayed by four to six weeks.
The dramatic drop in claims has, not surprisingly, been seized upon by Unison whose claim in the High Court for a judicial review of the Government's decision to introduce fees was unsuccessful. Since publication of the further statistics, they have applied to admit new evidence in their appeal against that decision. It is also understood that Unison may issue a fresh application relying on the most recent statistics, so not yet the last word on tribunal fees.
The other perhaps more startling announcement came from Shadow Business Secretary Chuka Umunna who recently announced to the TUC Congress that a Labour government would scrap the current tribunal system and replace it with a ‘fairer system’ such that affordability would not be a bar to access to justice.
Just when we thought it was safe to come out of the water!