employment law round up 2011
clear practical advice
Michael Ord & Jackie Turner
22 November 2011
Topics to be covered
• Legislative changes in 2011
• Case round-up
• Changes coming in 2012
Statutory changes 2011
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Agency Workers Regulations
Abolition of Default Retirement Age
Positive action in recruitment
Public Sector Equality Duty
Bribery Act
Additional Paternity Leave
Compensation Limits
Agency workers regulations
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In Force 1.10.2011
“agency worker”
“temporary work agency”
“hirer”
“supply”
day 1 rights
“12 weeks” rights
Agency workers
• Day 1 Rights
– Collective facilities and amenities
– Information on job vacancies
• Rights after 12 Weeks
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Basic working and employment conditions
Information re breach of that right
Deemed compliance
Anti-avoidance
End of DRA
• 1.10.11 – no enforced retirement through DRA
• 4.1.12 – last possible day to request working beyond
DRA
• 4.4.12 – last day on which notice of retirement can take
effect (unextended)
• 4.10.12 – last day if extended by 6 months
End of DRA (Cont …)
• What now?
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Contractual Retirement Age?
Objective Justification
Seldon v Clarkson, Wright & Jacks
Workforce Planning?
Cost? Cost alone?
Proportionality
SOSR?
No CRA
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Workforce Planning
Discussions on career intentions
Acceptance of flexible arrangements
More rigorous line management
Positive action
• 1.10.10
• People with protected characteristic
• [a] overcome disadvantage; [b] meet needs or [c]
participate in activity
• Can use as a tie breaker in employment
• NOT OBLIGED TO DO SO
Public sector equality duty
• s149-157 EA
“have due regard to the need to…..eliminate ……..conduct
…prohibited by or under the Act [and]…advance equality
of opportunity [and]…foster good relations…”
Equality duty
which means to….
“have regard to the need to…remove or minimise
disadvantages …take steps to meet the needs of…and
persuade participation by [people with a protected
characteristic]”
Equality duty (Cont…)
• Which means
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Placing contracts
Outsourcing
TUPE issues
Tendering
Your compliance with equality issues will be pre
qualification.
Bribery Act
• Risk Assessment
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The geographical scope of your activities
The nature of the work your business does
Transactional risk
Business partnership risk
Bribery Act (cont …)
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Ensure you have an appropriate policy
Check your disciplinary policies
Review contracts / service agreements
Whistleblowing policy? Special provision?
Communication of policy and “values”
Additional paternity leave
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6 April 2011
26 weeks’ service
Child due, born or placed after 3.4.11
Father of C; married to M; having care responsibilities
M has returned to work
Up to 26 weeks
20 to 52 weeks from birth or placement
Compensation limits
• 1.2.11
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Weeks’ pay £400
Compensatory Award £68,400
Additional award £10,400 – 20,800
Statutory redundancy pay £12,000
Notable cases
Working time
• Compensatory rest
– Hughes v Corps of Commissionaires
• Lay-over is not “work”
– Baxter v Titan Aviation
Status
• Am I an employee?
– Autoclenz v Belcher
• Have I been dismissed yet?
– Societe General, London v Geys
Unfair dismissal
• Email usage (private)
– Gosden v Lifeline Project Ltd.
• Failure to appeal previous final warning
– Davies v Sandwell MBC
• Need to ensure policies clear and consistent
– Liberty Living plc v Reid
Unfair dismissal (cont …)
• Range of Reasonable Responses and Substitution of
view by ET/EAT
– Bowater v N W London hospitals NHS Trust
• Breakdown of Relations
– Ezsias v North Glamorgan NHS Trust
• Justifying different treatment
– Glowacki v General Mills
Equality and discrimination
• Avoiding enhanced benefits not unfair?
– Woodcock v Cumbria PCT
• Dual discrimination
– O’Reilly v BBC
• Volunteers
– X v Mid Sussex CAB
• Treating woman on Mat. leave “too favourably”
– Eversheds v De Belin
Sickness and holiday pay
• Does the employee absent through sickness have to
request holiday pay?
– YES
• Fraser v St George’s NHS Trust
– NO
• NHS Leeds v Lerner
“others”
• Intention important in Constructive dismissal claim
– Tullett Pebron plc v BGC Brokers
• Employer liable for theft by employee?
– Brinks Global Services v Igrox Ltd.
“Others”
• Withdrawing notice
– C F Capital v Willoughby
• Discrimination victim turning down alternative post with
employer
– Debique v Ministry of Defence
• Is misleading reference still (potentially) lawful?
– Jackson v Liverpool City Council
What’s ahead?
• 6 April 2012 – qualifying period for Unfair Dismissal claims
• Fees in the Employment Tribunal
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£250 issue
£1000 on listing
More if over £30,000
Refunding and Waiver
• Cases heard by Employment Judge alone
• “Protected discussions”
CONTACT DETAILS
• Michael Ord
– 0845 901 2036 (desk)
– 07850 199 846 (mobile)
– Michael.Ord@watsonburton.com
• Jackie Turner
– 0845 901 2032 (desk)
– 07870 680 289 (mobile)
– Jacqueline.Turner@watsonburton.com
employment law round up 2011
clear practical advice
Michael Ord & Jackie Turner
22 November 2011