Employment Law in 2012: where are we? Stuart Chamberlain Croner
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Employment Law in 2012: where are we?
Stuart ChamberlainCroner
Employment Law policy of Coalition Government
Act on bankers’ bonuses Cut red tape & reduce
regulatory burden– “The Red Tape Challenge”
Review workplace law End “gold- plating” of EU law Cap on immigration
Immediate action
Provisions of Equality Act 2010
Vetting & Barring Scheme
Default Retirement Age
Additional Paternity Leave introduced as “interim measure”
Immediate action
Delayed extension of right to flexible working
Agency Workers Regs. into force (Oct.2011 – to be reviewed in 2012)
Moratorium on new legislation affecting “micro” (ie fewer than 10 employees) from April 2011
Launched Employers Charter
Government Consultations etc 2011 -12
Consultations
The Employment Law Review – throughout life of Parliament – with annual updates
Resolving Workplace Disputes (Jan. – April 2011)– reform of unfair dismissal regime and tribunal reform; financial penalties for employers
Modern Workplaces ( May – August 2011)- flexible parental leave; flexible working; equal pay & WTR
Consultations cont.
BIS – dismissal with no risk of tribunal for micro businesses
“Call for evidence” on TUPE and collective redundancies and on dismissal procedures (2012)
Simplifying compromise agreements
Removal of third-party harassment provisions – an “unworkable requirement”
Changes in April 2012
Reform of unfair dismissal regime
Increase in awards (Feb. 2012)
Increase in qualifying period (1 to 2 years) Implications?
Tribunal Reform
Increase in deposit (£500 to £1,000) Costs against unreasonable and
vexatious parties ( up to £20,000) Witness statements taken as read Employment judge to sit alone in
unfair dismissal cases
What’s further in store in 2012?
What’s further in store in 2012?
Changes to compromise agreements: name and wording
“Protected conversations”: poor performance & retirement without risk of tribunal
• ACAS conciliation
What’s further in store in 2012?
Introduction of “rapid resolution scheme” eg holiday pay
Review of paperwork obligations of Agency Workers Regulations.
Reduction of minimum 90-day collective redundancy consultation period?
Review of TUPE- possibility of change?
What’s further in store in 2012?
Changes to Working Time Regs. – result of European Court decisions
Introduction of fees for tribunal claims – problems?
Fundamental Review of tribunal procedures under Mr Justice Underhill – effect?
Change to Public Interest Disclosure Act
What’s further in store in 2012?
Financial penalties on employers who breach employment rights – penalty payable directly to Treasury
Result of “Call for Evidence” on dismissal processes - “compensated no-fault dismissals” for micro-businesses and Acas Code of Practice on Discipline and Grievance
RECENT RELEVANT CASE LAW
1. Unfair Dismissal
Misconduct & suspension – not to be a “knee-jerk response” (Crawford v Suffolk Mental Health NHS T )
And police involvement?
EDT of summary constructive dismissal?(Horwood v Lincolnshire CC)
2. Redundancy
Suitable alternative employment – the “correct test” (subjective!)(Readman v Devon Primary Care T)
Expiry of fixed-term contracts – redundancies? Collective consultation? (University of Stirling v UCU)
When is obligation to consult triggered? A-G’s Opinion in USA v Nolan
3. TUPE: Service Provision Change- the test
“Activities” before and after the transfer
Was employee assigned to transferred group of workers?
Employees should be organised re. particular client
Post – transfer “fragmentation” – TUPE 2006 will not apply
3. TUPE: Regulation 4(9) - take care!
Substantial changes in working conditions to material detriment – a subjective test
Tapere [2009] & Abellio London v Musse- both cases involved change of location and mobility clause
The lessons?
Finally, some words about social media and the law
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