1. Whistle blowing, collective consultation
and other changes
Richard Miskella and Rebecca Peedell

2. What we will cover
• Changes to the collective redundancy
consultation rules
• Changes to whistle-blowing law
• Pensions auto-enrolment
• Sickness absence related changes
• Other changes currently on the horizon

3. Collective redundancy consultation
• Changes apply to redundancies “proposed” on or after 6
April 2013

4. Collective redundancy consultation
On 23 April 2013, ABC Ltd proposes 120
redundancies at one establishment within a 90 day
period.
What will it need to do differently under the new
rules?

5. Collective redundancy consultation
• Consultation period
What has changed? What hasn’t changed?
Where 100 or more dismissals are
proposed, employer must consult for a
minimum of 45 days before the first
dismissal takes effect
(Pre-6 April 2013 the minimum
consultation period where 100 or more
dismissals were proposed was 90 days)
No change to minimum consultation
period where between 20 and 99
dismissals are proposed – still 30 days
No change to protective award –
remains capped at 90 days’ pay
TUPE regime remains separate and
unchanged by this

6. Collective redundancy consultation
• HR1 form
What has changed? What hasn’t changed?
Where 100 or more dismissals are
proposed, notification to the Secretary
of State must be made at least 45 days
before the first dismissal takes effect
(Pre-6 April 2013 where 100 or more
dismissals were proposed notification
was required at least 90 days before the
first dismissal takes effect)
No change to notification period where
between 20 and 99 dismissals are
proposed – still at least 30 days before
first dismissal takes effect
Same penalty for failing to comply
(£5,000 fine)

7. Collective redundancy consultation
• Fixed term contracts
What has changed? What hasn’t changed?
Fixed term contracts which have
reached their agreed termination points
are not covered by the collective
consultation obligations
If fixed term contracts are being
terminated early they are covered by
the collective consultation obligations

8. Collective redundancy consultation
• ACAS guidance on “How to manage
collective redundancies”
Sets expectations of best practice
But it is guidance only – which means
that employers to do not have to follow
it

9. Collective redundancy consultation
• ACAS guidance on “How to manage
collective redundancies”
Contains:
> 10 point checklist for handling collective
redundancies
> Sample selection matrix and redundancy
procedure
> Overriding themes are:
» Good quality consultation
» Protecting employee wellbeing (particularly
those employees who “break the bad news”)
for the benefit of employers and employees

10. Collective redundancy consultation
• ACAS guidance on “How to manage
collective redundancies”
Meaning of “establishment”
The legal test for an establishment:
> Question of fact for Tribunal – and Tribunal has
considerable latitude
> The unit to which the employees are assigned
> Geographical and organisational factors are
relevant
> Does the unit perform specific tasks?
> Does it have facilities, such as a workforce and an
organisational structure, to enable it to perform
those tasks?

11. Collective redundancy consultation
• Practical implications of changes for employers
 Form and content of consultation process remains the same
 Although the minimum consultation period for 100+ redundancies is shorter
this does not mean that consultation can start later – consultation must still
begin when the proposals are at a formative stage
 Unlikely to mean employers change their commercial approaches to
consultation – e.g. if approach is to breach consultation obligations and pay
90 days’ pay, that is unlikely to change
 Less of an imperative to keep number of proposed dismissals under 100
 Implementing contractual changes via dismissal and re-engagement more
attractive?
 Will employees want a slice of the 45 day “saving” on pay?
 Will the ACAS guidance raise employee expectations about having a
positive consultation experience?

12. Collective redundancy consultation
FOOTNOTE
*Remember recent case of Unison v London Borough of
Barnet and another where protective awards were made for
failure to provide employee representatives with information
about agency workers

13. Collective redundancy – ACTION POINTS
Review redundancy policies to reflect 45 day
minimum consultation period where 100+
redundancies are proposed and changed position
on fixed term contracts
Build into processes an acknowledgement of the
importance of employee wellbeing
Make sure fixed term contracts have fixed expiry
points

14. Whistle-blowing

15. Whistle-blowing
• Requirement for disclosures to be made “in good faith” has
been removed
• However, Tribunals will have the power to reduce
compensation by up to 25% if the disclosure was not made
in good faith

16. Whistle-blowing
ABC Ltd employs Bob. Bob complains to ABC Ltd that they
have breached his contract by not paying him a bonus and
have understated their profits in the accounts they have filed
with Companies House. Jim, one of his co-workers, finds out
about this and tells other co-workers, and they all give Bob
the cold shoulder.
• Does Bob have a whistle-blowing claim against ABC Ltd
now?
• What about after summer 2013?

17. Whistle-blowing
• Breach of contract by not paying a bonus
Under current law this could be a qualifying disclosure
From summer 2013 unlikely to be a qualifying disclosure due
to new “public interest” test
• Understated profits in accounts
Under current law this could be a qualifying disclosure
From summer 2013 – position unclear ... but not too much of a
stretch to argue there is a public interest?

18. Whistle-blowing
• Is ABC Ltd liable for Jim’s actions?
Under current law probably no
> NHS Manchester v Fecitt and others [2012]
> Court of Appeal held that an employer cannot be liable
under whistle-blowing legislation where an employee
victimises a whistle-blower colleague – this may even be
the case where the employer has done nothing to stop it
From summer 2013 probably yes
> a worker will have the right not to be subjected to any
detriment by any act, or any deliberate failure to act, done
by another worker in the course of that other worker’s
employment – subject to a reasonable steps defence

19. Whistle-blowing
• Are further changes expected?
• The Whistle-blowing Commission
has launched a public consultation
asking for views and experiences of
whistle-blowing in the UK (closes
June 2013)

20. Whistle-blowing – ACTION POINTS
Review whistle-blowing policies to reflect
introduction of “in public interest” test and removal
of “good faith” requirement
Amend bullying and harassment/whistle-blowing
policies to expressly prohibit subjecting co-
workers to bullying and harassment for making
protected disclosures
Train staff on policy so that you can take
advantage of the reasonable steps defence

21. Pension auto-enrolment
• What is it?
• See “In-Brief” in packs

22. Pension auto-enrolment
• Top 5 questions from clients
1. What is the current auto-enrolment consultation about?
2. Which workers are in the scope of auto-enrolment?
3. Which elements of pay come within the concept of “qualifying
earnings” and are qualifying earnings different to
pensionable pay?
4. Are salary sacrifice mechanisms and flexible benefits
schemes inducements to opt out?
5. Do I need to change employees’ contracts of employment
and how do I go about doing that?

23. Sickness absence related changes
• Changes take effect in Spring 2014
• New Independent Assessment Service to provide expert
advice for sickness absences lasting for more than four
weeks
• Revisions to fit notes

24. Changes on the horizon
• Include:
Review of impact of Agency Worker Regulations
New ACAS Code on disciplinary and grievance procedures
New rapid resolution scheme for simple low value claims

25. Thank you