Clear practical advice employment law round up 2011 Michael Ord & Jackie Turner 22 November 2011.

clear practical advice

employment law round up 2011

Michael Ord & Jackie Turner22 November 2011

Topics to be covered

• Legislative changes in 2011• Case round-up• Changes coming in 2012

Statutory changes 2011

• Agency Workers Regulations• Abolition of Default Retirement Age• Positive action in recruitment• Public Sector Equality Duty• Bribery Act• Additional Paternity Leave• Compensation Limits

Agency workers regulations

• In Force 1.10.2011• “agency worker”• “temporary work agency”• “hirer”• “supply”• day 1 rights• “12 weeks” rights

Agency workers

• Day 1 Rights– Collective facilities and amenities– Information on job vacancies

• Rights after 12 Weeks– Basic working and employment conditions– Information re breach of that right– Deemed compliance– Anti-avoidance

End of DRA

• 1.10.11 – no enforced retirement through DRA• 4.1.12 – last possible day to request working beyond

DRA• 4.4.12 – last day on which notice of retirement can take

effect (unextended)• 4.10.12 – last day if extended by 6 months

End of DRA (Cont …)

• What now? – Contractual Retirement Age?– Objective Justification– Seldon v Clarkson, Wright & Jacks– Workforce Planning?– Cost? Cost alone?– Proportionality– SOSR?

No CRA

• Workforce Planning• Discussions on career intentions• Acceptance of flexible arrangements• More rigorous line management

Positive action

• 1.10.10• People with protected characteristic• [a] overcome disadvantage; [b] meet needs or [c]

participate in activity• Can use as a tie breaker in employment• NOT OBLIGED TO DO SO

Public sector equality duty

• s149-157 EA

“have due regard to the need to…..eliminate ……..conduct …prohibited by or under the Act [and]…advance equality of opportunity [and]…foster good relations…”

Equality duty

which means to….

“have regard to the need to…remove or minimise

disadvantages …take steps to meet the needs of…and

persuade participation by [people with a protected

characteristic]”

Equality duty (Cont…)

• Which means– Placing contracts– Outsourcing– TUPE issues– Tendering

Your compliance with equality issues will be pre

qualification.

Bribery Act

• Risk Assessment– The geographical scope of your activities– The nature of the work your business does– Transactional risk– Business partnership risk

Bribery Act (cont …)

• Ensure you have an appropriate policy• Check your disciplinary policies• Review contracts / service agreements• Whistleblowing policy? Special provision?• Communication of policy and “values”

Additional paternity leave

• 6 April 2011• 26 weeks’ service• Child due, born or placed after 3.4.11• Father of C; married to M; having care responsibilities• M has returned to work• Up to 26 weeks• 20 to 52 weeks from birth or placement

Compensation limits

• 1.2.11– Weeks’ pay £400– Compensatory Award £68,400– Additional award £10,400 – 20,800– Statutory redundancy pay £12,000

Notable cases

Working time

• Compensatory rest– Hughes v Corps of Commissionaires

• Lay-over is not “work”– Baxter v Titan Aviation

Status

• Am I an employee?– Autoclenz v Belcher

• Have I been dismissed yet?– Societe General, London v Geys

Unfair dismissal

• Email usage (private)– Gosden v Lifeline Project Ltd.

• Failure to appeal previous final warning– Davies v Sandwell MBC

• Need to ensure policies clear and consistent– Liberty Living plc v Reid

Unfair dismissal (cont …)

• Range of Reasonable Responses and Substitution of view by ET/EAT– Bowater v N W London hospitals NHS Trust

• Breakdown of Relations– Ezsias v North Glamorgan NHS Trust

• Justifying different treatment– Glowacki v General Mills

Equality and discrimination

• Avoiding enhanced benefits not unfair?– Woodcock v Cumbria PCT

• Dual discrimination– O’Reilly v BBC

• Volunteers– X v Mid Sussex CAB

• Treating woman on Mat. leave “too favourably”– Eversheds v De Belin

Sickness and holiday pay

• Does the employee absent through sickness have to request holiday pay?

– YES• Fraser v St George’s NHS Trust

– NO• NHS Leeds v Lerner

“others”

• Intention important in Constructive dismissal claim– Tullett Pebron plc v BGC Brokers

• Employer liable for theft by employee?– Brinks Global Services v Igrox Ltd.

“Others”

• Withdrawing notice– C F Capital v Willoughby

• Discrimination victim turning down alternative post with employer– Debique v Ministry of Defence

• Is misleading reference still (potentially) lawful?– Jackson v Liverpool City Council

What’s ahead?

• 6 April 2012 – qualifying period for Unfair Dismissal claims• Fees in the Employment Tribunal

– £250 issue

– £1000 on listing

– More if over £30,000

– Refunding and Waiver

• Cases heard by Employment Judge alone• “Protected discussions”

CONTACT DETAILS

• Michael Ord– 0845 901 2036 (desk)– 07850 199 846 (mobile)– [email protected]

• Jackie Turner– 0845 901 2032 (desk)– 07870 680 289 (mobile)– [email protected]

clear practical advice

employment law round up 2011

Michael Ord & Jackie Turner22 November 2011