Blake Lapthorn's Employment law team host its Thames Valley HR forum in Oxford on 1 February 2011.

1. Review of the year and what to look
forward to in 2011
Thames Valley HR forum
February 2011

2. Review of 2010
Alexandra Robinson
senior solicitor
alexandra.robinson@bllaw.co.uk

3. Unfair dismissal - misconduct
The importance of a reasonable investigation
– Salford Royal NHS Foundation Trust v Roldan CA –
conflict of evidence
– City of Edinburgh Council v Dickson EAT – employee’s
explanation not taken seriously
Framing the allegation correctly
– Celebi v Scolarest Compass Group UK EAT – failure to
state that the employee was accused of theft
Holding the hearing in the absence of the employee
– Bashir v Sheffield Teaching Hospital NHS Foundation
Trust EAT – unreasonable and obstructive employees

4. Unfair dismissal - misconduct
Effective date of dismissal
– Gisda Cyf v Barratt, SC – dismissal takes effect on the
date the letter is read
Mitigation
– Kelly v University of Southampton EAT – applying for
posts with the same employer
Overlapping grievance and disciplinary procedures
– Samuel Smith Old Brewery v Marshall EAT –
disciplinary hearing can take place before grievance
procedure completed

5. Unfair dismissal - redundancy
Scoring on the basis of objective criteria
– Pinewood Repro Ltd v Page EAT – failure to explain
scoring
Bumping
– Fulcrum Pharma Ltd v Bonassera EAT – failure to
consider bumping into a more junior role
Employees on maternity leave
– Simpson v Endsleigh Insurance Services Ltd EAT – is
there a suitable alternative vacancy?

6. Constructive dismissal
The range of reasonable responses test is not
relevant to the issue of whether there has been a
fundamental breach of contract
A fundamental breach cannot be “cured”
– Buckland v Bournemouth University Higher Education
Corporation CA

7. Contractual terms
Bonuses
– Rutherford v Seymour Pierce Ltd – is eligibility for a bonus
dependant on still being employed?
– Humphreys v Norilsk Nickel International (UK) Ltd –
discretion to pay bonus must not be exercised irrationally or
perversely
Right to vary contracts
– Bateman and ors v Asda Stores Ltd EAT – wording in
handbook gave employer right to vary contractual terms
Holiday
– Lyons v Mitie Security Ltd EAT – use it or lose it?

8. Whistleblowing
Protection from detriment provisions are not limited to
disclosures made during employment with the
present employer
– BP Plc v Elstone EAT

9. Discrimination
Age
– Seldon v Clarks and Wright CA – objective justification
Religion or belief
– Ladele v London Borough of Islington CA – dismissal
was not discriminatory
– Amachree v Wandsworth Borough Council ET –
imposing religious beliefs on a third party
– Haye v London Borough of Lewisham ET
Pregnancy and Sex
– Nixon v Coates Solicitors EAT – office gossip
amounted to discrimination

10. Discrimination
Disability – reasonable adjustments
– Secretary of State for Work and Pensions v Wilson
EAT – working from home
– Hinsley v Chief Constable of West Mercia
Constabulary EAT – reinstatement
– Chief Constable of South Yorkshire v Jelic CA – job
swap
Compensation
– Chagger v Abbey National plc CA – stigma damages

11. Looking forward: issues on the
horizon
Jim Whiter
Head of Oxford Employment team
jim.whiter@bllaw.co.uk

12. Looking forward
Extension of right to request flexible working
Additional Paternity Leave Regulations 2010
Agency Worker Regulations 2010
Bribery Act 2010
Default Retirement Age : A reminder
New Compensation Limits

13. Extension of Right to Request Flexible Working
Currently available to parents of children under 17
and disabled children under 18 and carers of certain
adults
From April 2011 the right is extended to parents of
children under 18. Estimated that it will benefit a
further 288,000 employees
The Government is consulting on extending the right
to all employees

14. Additional Paternity Leave Regulations 2010
Births
father of the baby and/or the husband or partner of
woman due to give birth on or after 3 April 2011
responsibility for baby’s upbringing
26 weeks’ service by qualifying week (15th week
before EWC)
taking time off to care for the baby
up to 26 weeks’ leave but must be taken between 20
and 52 weeks after the child is born
mother must have returned to work

15. Additional Paternity Leave Regulations
Adoptions
spouse or partner of child’s co-adopter
matched with child for adoption on or after 3 April
responsibility for child’s upbringing
26 weeks’ service by qualifying week (the later of week official
notification received or week employee had 26 weeks’ service)
taking time off to care for a child
up to 26 weeks’ leave to be taken between 20 and 52 weeks
after child starts living with adopter
co-adopter must have returned to work

16. Additional Paternity Leave Regulations : Procedure
Employees required to give 8 weeks’ written notice before start of leave
HMRC forms available but employer can create it’s own
Must include declaration that the purpose of the leave is to care for the
child; date of birth or placement; employee is the father of the child or
husband/partner of child’s mother or co-adopter; they have or expect to
have responsibility for the upbringing of the child.
Child’s mother or co-adopter must also provide declaration (including
personal details; that they have notified their intention to return to work
to their employer and the date; date SMP or SAP period started; that
the employee is their spouse, or partner and was jointly matched for
adoption)
Employer can request additional information within 28 days of receiving
the notification (eg birth certificate or details of mother’s employer)

17. Additional Paternity Leave : Rights
Fathers and partners who take APL have similar
rights to those enjoyed by women on ML (eg benefit
of terms and conditions (but not remuneration); not to
be subjected to detriment or dismissal for taking APL;
KIT days)
Additional Statutory Paternity Pay
– Lower of £128.73 (from April) or 90% of average
weekly earnings
Enhanced pay?

18. “Flexible” Maternity and Paternity Leave?
Proposals for “shared parental leave” from 2015 –
Government consultation is due to be published
Parents to be able to take leave at the same time?
Time off to be taken in separate blocks rather than all
in one go?

19. Agency Workers Regulations 2010
Implement the EU Temporary Agency Workers
Directive
1 October 2011
Giving agency workers the right to equal treatment
After 12 weeks on an assignment

20. Who is an “Agency Worker”?
someone supplied by a temporary work agency;
to work temporarily for and under the supervision and
direction of a hirer; and
has a contract of employment with the agency or a
contract to perform work and services personally for
the agency.
Does not include the genuinely self-employed and
workers on “managed service contracts” (eg IT
support or catering)

21. Rights of Agency Workers
Right to the same “basic working and employment
conditions” as a comparable employee of the hirer
after twelve weeks on an assignment
The comparable employee must work for the hirer
doing the same or broadly similar work

22. Basic Working and Employment Conditions
Pay
– basic pay and entitlements linked to the work
undertaken while on assignment (e.g holiday pay;
overtime; shift allowances; unsocial hours premiums;
individual performance bonuses and vouchers)
– does not include share participation; profit sharing
schemes; contractual sick pay or redundancy pay;
occupational pension; car allowances; health
insurance; or bonus based on business performance.
Working Time
– duration; length of night work; rest periods and breaks;
holiday entitlement

23. Miscellaneous Rights of Agency Workers
Right to be given notice of hirer’s permanent
vacancies from day one
Access to hirer’s onsite facilities (e.g canteen,
childcare facilities and transport services) from day
one
Rights for pregnant workers and new mothers after
12 weeks (eg paid time off for antenatal
appointments)

24. Anti Avoidance
Right to equal treatment in pay and conditions
depends on twelve weeks continuous assignment
Eleven week assignment is possible but beware
successive assignments
Continuity will only be broken if break of six weeks or
more during or between assignments or if worker
given a new role with the same hirer comprising
“substantively different” duties or work

25. Failure to Comply
Agency worker can make claim to ET within three
months of infringement or detriment
ET can order payment of compensation, make
declarations and recommend action be taken
“Just and equitable” compensation taking account of
the nature of the breach; financial loss suffered and
expenses incurred. Minimum compensation of two
weeks’ pay
Additional compensation of up to £5,000 if avoidance
measures are proved

26. Issues for Hirers
“Temp to perm” fees can still be charged
New administrative burden to assess whether
Regulations apply; whether there is a comparator;
and if so, providing information to the agency
Result in higher cost of agency workers?
Risk of potential claims (but may also reduce the risk
of agency workers asserting that they are employees
of the hirer)

27. Issues for Agencies
Need to revise contractual terms dealing with
provision of comparator information and recognising
the need for co-operation with the hirer
More “turnover” of workers if increased use of
assignments for less than twelve weeks?
Hirers may require indemnities in relation to liabilities
under the Regulations and confidentiality and non-
poach undertakings

28. The Bribery Act 2010
April 2011
“Bribe” is a financial or other advantage used to induce improper
performance of a public or business function or activity
Criminal offence to offer, promise or give a bribe; to request,
agree to receive or accept a bribe; to bribe a foreign public
official
Criminal offence for a business to fail to prevent bribery on its
behalf unless it can show it had “adequate procedures” in place
to prevent such conduct
Imprisonment or unlimited fine
Employers should provide guidance on accepting gifts and
hospitality; review policies and procedures; and make clear that
it will be considered an act of gross misconduct

29. Removal of Default Retirement Age: A Reminder
Response to consultation now published
No new notices of intended retirement may be issued
after 6 April 2011
Compulsory retirements notified before 6 April to take
effect before 1 October 2011 are valid
Compulsory retirements notified before 6 April 2011
to take effect after 1 October 2011 will not be valid
Compulsory retirement ages will need to be
objectively justified (pursuit of legitimate aim in a
proportionate manner)
ACAS Guidance for employers

30. New Compensation Limits
From today (1 February 2011)
The limit on a week’s pay increased to £400 (from
£380). Relevant for SRP and basic award calculation
in unfair dismissal
Maximum compensatory award for unfair dismissal is
£68,400 (from £65,300)
Note that unlimited compensation continues to apply
to discrimination claims and certain dismissals (eg if
for whistle blowing or H&S reasons)

31. Review of the year and what to look
forward to in 2011
Thames Valley HR forum
February 2011