1. Employment Law in 2012:
where are we?
Stuart Chamberlain
Croner

2. 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

3. Immediate action
 Provisions of Equality Act 2010
 Vetting & Barring Scheme
 Default Retirement Age
 Additional Paternity Leave introduced as
“interim measure”

4. 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

5. Government Consultations etc
2011 -12

6. 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

7. 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”

8. Changes in April 2012

9. Reform of unfair dismissal regime
 Increase in awards (Feb. 2012)
 Increase in qualifying period (1 to 2 years)
Implications?

10. 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

11. What’s further in store in 2012?

12. 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

13. 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?

14. 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

15. 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

16. RECENT RELEVANT CASE LAW

17. 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)

18. 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

19. 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

20. 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?

21. Finally, some words about social
media and the law