Stuart Chamberlain Employment Law - PPMA Conference 2010

PPMA Annual Conference 2010: Employment Law Update

Stuart Chamberlain

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Agenda

Working Time

Implied duty of trust and confidence

Religion and belief

Right to legal representation at internal hearings

TUPE 2006

Legislation for 2010 and 2011

Working Time

Holiday entitlement and sickness absence

Summary of principles from ECJ in Stringer and Pereda:

Employees (workers) accrue holiday pay while on sickness absence

Entitlement to full annual leave on return from sickness absence and pay in lieu on termination

Holiday can be carried over to next holiday year if employee unable to take it in the current leave year because of sickness

Holiday entitlement and sickness absence

ECJ decisions create potential problems:

UK’s Working Time Regulations (WTR) 1998 do not allow such carry over

Only public sector employees/workers can potentially enforce the ECJ’s rulings – by the doctrine of direct effect

What can the employer do?

Allow him/her to take the holiday accrued during sickness absence

Pay them in lieu – but this can only be done on termination of employment. A temptation for employer to dismiss those on long-term sickness absence?

What can the employer do?

Ask (during the absence) if employee willing to take holiday- Advantages? – but employee cannot be forced to take leave

Hope that there will be necessary amendments to WTR in the near future?

Religion and belief

Religion and belief

The key to the 2003 Regulations:

What beliefs are protected?

What actions are prohibited?

Religion and belief

What beliefs are protected?

Wide definition of “belief: “any religious or…philosophical belief”

ETs have to have regard to EU case law (i.e. ECHR case law) Grainger v Nicholson – EAT guidelines for

determining philosophical belief Power v Greater Manchester Police (ET)

Religion and belief

What actions are prohibited? Issue explored in following:

L B of Islington v Ladele (CA)

Chandol v Liverpool City Council (EAT)

Eweida v British Airways plc (CA)

Implications for employers?

Right to legal representation at internal hearings

Right to legal representation at internal hearings

Statutory and contractual position

Kulkarni and R(G) v Governors of X School:

Article 6 of the ECHR requires that a claimant is entitled to be afforded the opportunity to be legally represented at a disciplinary or hearing where this was determinative of the right to practise a profession.

Implications for the public sector?

Redundancy

Redundancy

The statutory obligation to consult about ways to avoid dismissals includes an obligation to consult about reasons for the closure ( UK Coal Mining Ltd v NUM )

And not confined to commercial decisions; it applies also to public policy (i.e. to the public sector) (USA v Nolan)

TUPE

TUPE: Information and Consultation

The link between the duty to inform and the duty to consult in reg.13?

Not necessarily any distinction A “responsible” employer will not limit

consultation to “measures” envisaged

(Cable Realisations Ltd v GMB Northern)

Who are the “affected employees”?

Those who will be or may be transferred

Those whose jobs are in jeopardy by reason of the proposed transfer

Those who have internal job applications pending at the time of the transfer

BUT not the whole of the workforce or those who may apply to transferred part sometime in the future

Unison v Somerset County Council

TUPE: Transfer of collective agreement

Previous EAT decisions (eg Whent v Cartledge in 1997) held that private sector employer/contractor bound by future NJC pay rises

ECJ in Werhof [2006] distinguished between “dynamic” and “static” interpretation of the Directive

CA in Parkwood Leisure Ltd v Alemo-Herron: transferee only bound by a collective agreement in force at the time of the transfer but NOT where agreement reached after the transfer

Implications?

Post-transfer changes to terms and conditions

Regulation 4(9) – “material detriment”

Tapere v South London & Maudsley NHS Trust Employer sought to rely on mobility

clause, but could not use device of “substantial equivalence”

Impact of detriment must be considered from employee’s viewpoint – not objective “balancing act”

LEGISLATIVE DEVELOPMENTS 2010 and 2011

2010 Legislation

Employment compensation limits from 1 February 2010

“Fit” not “sick” notes (from 6 April)

•Object of the scheme

•Summary of main features

•Potential problems?

2010 Legislation (continued)

New statutory right to request time to train – 6 April 2010 for employers with 250 or more employees. Similar procedure to that for requesting flexible working

Review of default retirement age – change from 65?

New arrangements for Vetting and Barring Scheme

Legislation 2010: The Equality BillKey features:

Simplification of the law - single piece of legislation

Harmonisation of definitions – “protected characteristics”

Changes to DDA in light of Malcolm and Attridge

Greater transparency

Legislation 2010: The Equality BillKey features:

Extend positive action

Further duties on public sector

Stronger enforcement by ET

Further duties on the public sector

New “socio-economic duty” to reduce inequality

To consider equality when deciding for purchasing or outsourcing

The Equality Bill – the next steps

Royal Assent in spring 2010

Bill to become law in October 2010

EHRC Codes of Practice (Sept2010; March 2011)

So, is this legislation a “mere tidying up exercise” or “new social order”?

Legislation 2011 – to think about now

Additional Paternity Leave and Pay – from 3 April 2011. Up to 6 months’ Paternity Leave (3 months to be paid) may be transferred to partner

Agency Workers Regulations 2010– certain employment rights after 12 weeks’ continuous service

Questions

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