Questions remain over flexible working

Another spate of updates in employment law are now around the corner and readers ot FE News will be unsurprised to learn that one of the hot topics at the moment, flexible working, is still waiting to be determined.

Flexible Working

Colleges and practitioners alike were awaiting the introduction of the right to flexible working for all as contained in the Children and Families Bill. The Bill will allow the right to flexible working to all employees with 26 weeks’ continuous employment rather than the current statutory right that required employees to have childcare and/or caring responsibilities. The old statutory duty to consider procedure will also be scrapped.

This was a highly prescriptive process that an employer and employee needed to follow when dealing with a flexible working request. The Children and Families Bill is expected to receive Royal Assent in the next few weeks although a date for implementation of the new rules has yet to come into effect.

Many colleges already allow flexible working for all members of staff and do not limit it to the statutory regime. However, some colleges do not and therefore they will need to consider amending their flexible working policy once a final date has been given for implementation of the new law.

TUPE

Amendments to the TUPE Regulations came into force at the end of January 2014, with transitional provisions put in place.

The amendments to the regulations introduced a number of changes. There was much debate during the consultation process about how the test for a service provision change (commonly but not exclusively in outsourcing arrangements) should be defined and what changes should be made to the definition. The regulations now clarify that the activities carried out after a change in provider must be fundamentally the same as those carried out by the person who ceased to carry them out before.

Under the old TUPE Regulations the deadline by which the old employer must supply employee liability information was not less than 14 days before the transfer. This has now changed to not less than 28 days before the transfer. In practice, the employee liability information is provided much sooner than that. Colleges will often enter into contractual arrangements with outsourced organisations in relation to cleaning, security and catering, for example, and so this change is likely to have limited impact.

One of the key amendments to TUPE is in relation to protection against dismissal and restrictions to contractual variations. Ordinarily, the protection will apply where the sole or principal reason for the dismissal or variation of an employment contract is the transfer. However, the new regulations make it clear that that protection will not apply in certain circumstances where the sole or principal reason for the dismissal or variation is an economic, technical or organisational reason entailing a change in the workforce.

In conjunction with that, the new employer may elect to consult or start to consult representatives of transferring staff about proposed collective redundancies prior to the transfer itself on condition that the old employer agrees to the consultation. The intention appears to be to enable the TUPE Regulations to be more user-friendly and to encompass the situation where the practical realities of a situation need to be addressed.

Pensions Lifetime allowance

Colleges should be aware of the proposed changes to pensions in relation to the lifetime allowance. The lifetime allowance is the value of the pension savings an employee can build up. On 6 April it will reduce from £1.5 million to £1.25 million.

This change could have an impact on employees on high salaries within colleges and those particularly with long periods of pensionable service. If the value of the pension exceeds the lifetime allowance, any excess over £1.25 million will be subject to tax, which would generally kick in on retirement and could be as much as 55%.

Those individuals employed in colleges, whose pension savings may reach the reduced lifetimes earning allowance, should consider whether to apply for two forms of protection that the Government has introduced, called fixed protection and individual protection. Fixed protection must be in place by 5 April this year whereas individual protection will become available later on in the year.

Matt Kelly is a partner at Thomas Eggar, the law firm