PPMA Annual Conference 2010: Employment Law Update Stuart Chamberlain
Nov 13, 2014
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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