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The 2013
employment law
agenda
Stuart Chamberlain
Topics
 Government programme of reforms to employment
law 2012-2015
 Selected case law
GOVERNMENT REFORMS TO
EMPLOYMENT LAW 2012-2015
First, a Health Warning!
 Some of the dates of implementation keep changing!
 On 14 March 2013 BIS published “Employment Law 2013:
Progress on Reform
Coalition Government’s employment law policy – a
reminder
 Employment Law Review throughout the life of government
 Remove regulatory burdens – The Red Tape Challenge – A “light
touch”
 Employment Law is “costly, time-consuming and overly
bureaucratic”
 Remove barriers to “flexible, effective and fair” labour market
 Aim to support employers, individuals and their families
 Better information & guidance (e.g. the Employer’s Charter)
 Whole series of Consultations and “Calls for Evidence”
 Encourage parties to settle rather than go to ET - & save money!
In 2012
 Maximum award for unfair dismissal is £74,200 (Feb
2012)
 Change in qualifying period for claiming unfair
dismissal increased from one to two years on 6 April
2012
 Auto Enrolment for pensions (ongoing)
 CRB becomes Disclosure & Barring Service (DBS) (Dec
2012) – but problems with IT!
April 2013
 Consolidation of NMW Regulations
 Consultation period for collective redundancies involving 100
or more employees reduced from 90 days to 45 days – with ACAS
guide
 Employees whose fixed-term contracts due to expire excluded
from collective consultation requirements
 Consultation on the recruitment sector
Summer 2013
 Introduction of Settlement Agreements: details of pre-
termination negotiations will be inadmissible at ET – except
where “improper behaviour” – with Code of Practice & guidance
and letters & templates for employers – see next slide
 [Government has dropped “Protected conversations”?]
 12 months’ pay cap on compensation award for unfair
dismissal – what it means
 Revised ET rules/procedure – mostly accepted Underhill Report
recommendations
Settlement Agreements(SAs)
 Change of name – Why? - new s.111A of the ERA 1996 – replace
CAs
 SAs are legally binding contracts which can be used to end
employment relationship on agreed terms. Individual waives
rights to make claim to court/tribunal on matters specifically
covered in the agreement
 It’s all about “confidentiality” – specific focus of ACAS draft
Code of Practice
 The current situation – “without prejudice” discussions etc. –
must relate to existing dispute between parties – these can still
run alongside SA procedure
Settlement Agreements cont.
 Voluntary - If SA cannot be agreed dispute can go to ET
 7 (?) days to consider offer
 Void if “improper behaviour” – examples in draft ACAS Code
 Right of accompaniment?
 Non-binding model letters for employers and template
agreement
 Still consulting on “good practice”
 Implications?
Summer 2013 continued
 Changes to whistle blowing rules: breach of employment
contract no longer protected disclosure; “good faith”; and
employer’s liability & defence
 New tribunal fees regime – 2-stage fee structure: “issue” fee and
“hearing” fee – Implications?
 Review of Agency Workers paperwork
 Portable online DBS checks
Autumn 2013
 Proposed changes to TUPE 2006 (“gold plating of EU law”)
— Repeal of SPC – but likely to be 3-5 years’ lead-in time?
— ELI and other changes
— Implications & potential problems?
 Call for Evidence on PIDA 1998
 Interactive guide on discipline
Spring 2014
 Right of flexible working extended to all employees with 26
weeks’ service
 New Assessment Service for employees absent for 4 weeks due
to sickness & revision of “Fit-Note”
 Mandatory ACAS pre-claim conciliation: if no agreement ACAS
will issue certificate & if no certificate, no ET – and a POTENTIAL
NIGHTMARE!
 Financial penalties in ET for employers (£5000)
 Evaluation of Workplace Mediation Services
2015
 Flexible/ Shared Parental Leave – potential problems?
Which leaves?
• Amendments to Working Time Regs. re. annual leave & sickness
• Updating of ACAS Code of Practice on Disciplinary and Grievance
Procedures.
 No qualifying period for unfair dismissal when reason for
dismissal is or is related to employee’s political opinion or
affiliation (Redfearn v UK) – but to come into effect 12 months
after E&RR Bill receives Royal Assent
SELECTED CASE LAW
Case law 1- Religious discrimination
 Religious discrimination – Eweida & others v UK
(ECtHR)
o Any manifestation of religious belief in workplace should be
protected, provided close link between the manifestation and
the belief
o Interference with this right can be justified but the
employee’s rights must be balanced against those of the
employer
Eweida continued
o BA’s corporate aims breached Ms E’s desire to manifest her
religion (Article 9)– UK had breached its “positive obligation “
to protect this right. The other applicants lost – employers
able to justify their refusal to accommodate their
manifestations of belief
o The EHRC has produced guidance on religion & belief in the
workplace
o Implications?
Case law 2 – Annual Leave
 Long-term sickness & annual leave: LHS Leeds v Larner
o A reminder of the CJEU cases
o Claimant, unable to take leave because she was sick, entitled to
carry her untaken leave forward to next leave year without
making a prior request to do so
o On termination she was entitled to payment for paid annual
leave she had been prevented from taking
o And how long the carry over?
Case law 3 – Social Media
 Unlawful disciplining, demotion & dismissal: Smith v Trafford
Housing Trust
 In Facebook Mr S, a practising Christian, described proposals for
same–sex marriage as an “equality too far”
 Dismissed for gross misconduct – contravened equal opportunities
policy
 Too late to bring claim for unfair dismissal
 Awarded damages' (£100) for wages in notice period
Case 4: Disciplinary warnings
 Warnings – Wincanton Group plc v Stone
Q.s: To what extent can earlier warnings be relied upon in
disciplinary hearings? And must earlier warnings be about similar
misconduct?
 EAT says “Yes” to both and provides following guidance:
o In deciding sanction, employer should take into account factual
circumstances of any earlier warning
o Always take into account how other employees treated (consistency
is important)
o A final warning normally means that any further misconduct (of
whatever nature) may result in further disciplinary action (dismissal)
Case law 5: Volunteers
 Volunteers not covered by discrimination law – X v Mid Sussex
CAB
 No contract, no claim under the EqA (then the DDA) or Directive
 Volunteer will not be employee unless…!?
 And interns?
 Finally, ET rejected claims in Quick v Cornwall Council that
conversations about the employee’s potential retirement
constituted unfair dismissal and age discrimination
Questions?

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PPMA 2013 Annual Seminar - Croner’s Employment Law Update - Stuart Chamberlain

  • 2. Topics  Government programme of reforms to employment law 2012-2015  Selected case law
  • 4. First, a Health Warning!  Some of the dates of implementation keep changing!  On 14 March 2013 BIS published “Employment Law 2013: Progress on Reform
  • 5. Coalition Government’s employment law policy – a reminder  Employment Law Review throughout the life of government  Remove regulatory burdens – The Red Tape Challenge – A “light touch”  Employment Law is “costly, time-consuming and overly bureaucratic”  Remove barriers to “flexible, effective and fair” labour market  Aim to support employers, individuals and their families  Better information & guidance (e.g. the Employer’s Charter)  Whole series of Consultations and “Calls for Evidence”  Encourage parties to settle rather than go to ET - & save money!
  • 6. In 2012  Maximum award for unfair dismissal is £74,200 (Feb 2012)  Change in qualifying period for claiming unfair dismissal increased from one to two years on 6 April 2012  Auto Enrolment for pensions (ongoing)  CRB becomes Disclosure & Barring Service (DBS) (Dec 2012) – but problems with IT!
  • 7. April 2013  Consolidation of NMW Regulations  Consultation period for collective redundancies involving 100 or more employees reduced from 90 days to 45 days – with ACAS guide  Employees whose fixed-term contracts due to expire excluded from collective consultation requirements  Consultation on the recruitment sector
  • 8. Summer 2013  Introduction of Settlement Agreements: details of pre- termination negotiations will be inadmissible at ET – except where “improper behaviour” – with Code of Practice & guidance and letters & templates for employers – see next slide  [Government has dropped “Protected conversations”?]  12 months’ pay cap on compensation award for unfair dismissal – what it means  Revised ET rules/procedure – mostly accepted Underhill Report recommendations
  • 9. Settlement Agreements(SAs)  Change of name – Why? - new s.111A of the ERA 1996 – replace CAs  SAs are legally binding contracts which can be used to end employment relationship on agreed terms. Individual waives rights to make claim to court/tribunal on matters specifically covered in the agreement  It’s all about “confidentiality” – specific focus of ACAS draft Code of Practice  The current situation – “without prejudice” discussions etc. – must relate to existing dispute between parties – these can still run alongside SA procedure
  • 10. Settlement Agreements cont.  Voluntary - If SA cannot be agreed dispute can go to ET  7 (?) days to consider offer  Void if “improper behaviour” – examples in draft ACAS Code  Right of accompaniment?  Non-binding model letters for employers and template agreement  Still consulting on “good practice”  Implications?
  • 11. Summer 2013 continued  Changes to whistle blowing rules: breach of employment contract no longer protected disclosure; “good faith”; and employer’s liability & defence  New tribunal fees regime – 2-stage fee structure: “issue” fee and “hearing” fee – Implications?  Review of Agency Workers paperwork  Portable online DBS checks
  • 12. Autumn 2013  Proposed changes to TUPE 2006 (“gold plating of EU law”) — Repeal of SPC – but likely to be 3-5 years’ lead-in time? — ELI and other changes — Implications & potential problems?  Call for Evidence on PIDA 1998  Interactive guide on discipline
  • 13. Spring 2014  Right of flexible working extended to all employees with 26 weeks’ service  New Assessment Service for employees absent for 4 weeks due to sickness & revision of “Fit-Note”  Mandatory ACAS pre-claim conciliation: if no agreement ACAS will issue certificate & if no certificate, no ET – and a POTENTIAL NIGHTMARE!  Financial penalties in ET for employers (£5000)  Evaluation of Workplace Mediation Services
  • 14. 2015  Flexible/ Shared Parental Leave – potential problems?
  • 15. Which leaves? • Amendments to Working Time Regs. re. annual leave & sickness • Updating of ACAS Code of Practice on Disciplinary and Grievance Procedures.  No qualifying period for unfair dismissal when reason for dismissal is or is related to employee’s political opinion or affiliation (Redfearn v UK) – but to come into effect 12 months after E&RR Bill receives Royal Assent
  • 17. Case law 1- Religious discrimination  Religious discrimination – Eweida & others v UK (ECtHR) o Any manifestation of religious belief in workplace should be protected, provided close link between the manifestation and the belief o Interference with this right can be justified but the employee’s rights must be balanced against those of the employer
  • 18. Eweida continued o BA’s corporate aims breached Ms E’s desire to manifest her religion (Article 9)– UK had breached its “positive obligation “ to protect this right. The other applicants lost – employers able to justify their refusal to accommodate their manifestations of belief o The EHRC has produced guidance on religion & belief in the workplace o Implications?
  • 19. Case law 2 – Annual Leave  Long-term sickness & annual leave: LHS Leeds v Larner o A reminder of the CJEU cases o Claimant, unable to take leave because she was sick, entitled to carry her untaken leave forward to next leave year without making a prior request to do so o On termination she was entitled to payment for paid annual leave she had been prevented from taking o And how long the carry over?
  • 20. Case law 3 – Social Media  Unlawful disciplining, demotion & dismissal: Smith v Trafford Housing Trust  In Facebook Mr S, a practising Christian, described proposals for same–sex marriage as an “equality too far”  Dismissed for gross misconduct – contravened equal opportunities policy  Too late to bring claim for unfair dismissal  Awarded damages' (£100) for wages in notice period
  • 21. Case 4: Disciplinary warnings  Warnings – Wincanton Group plc v Stone Q.s: To what extent can earlier warnings be relied upon in disciplinary hearings? And must earlier warnings be about similar misconduct?  EAT says “Yes” to both and provides following guidance: o In deciding sanction, employer should take into account factual circumstances of any earlier warning o Always take into account how other employees treated (consistency is important) o A final warning normally means that any further misconduct (of whatever nature) may result in further disciplinary action (dismissal)
  • 22. Case law 5: Volunteers  Volunteers not covered by discrimination law – X v Mid Sussex CAB  No contract, no claim under the EqA (then the DDA) or Directive  Volunteer will not be employee unless…!?  And interns?  Finally, ET rejected claims in Quick v Cornwall Council that conversations about the employee’s potential retirement constituted unfair dismissal and age discrimination