Employment Law Review and
Update
Stratford Personnel and
Training Group
April 2013
Tribunal Statistics
How many claims to tribunal 2010 – 2012?
Payment/Compensation limits
2013
• The limit on a 'week's pay' (used to calculate
redundancy pay and basic/additional awards)
increases from £430 to £450.
• The maximum compensation award increases from
£72,300 to £74,200.
• The daily rate of guarantee pay increases from £23.50
to £24.20.
• The minimum award for certain types of unfair
dismissal (e.g. dismissal of union/employee
representatives) increases from £5,300 to £5,500.
• Statutory Sick Pay to £86.70 from £85.85
Change on the way?
Change on the way?
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Latest Government Proposals
Tribunal reforms – statements taken as read; one day
hearing the norm – reasons required for longer.
Sickness Absence – Independent Assessment Service after 4 weeks off. SSP records could be abolished?
TUPE; bureaucratic! Easier to harmonise? (Autumn 2013)
Consultation – time scales; 90 days down to 45. (April
2013)
Unfair dismissal – 2 years qualification (April 2012)
Review of Compensation limits
Change on the way?
• Tribunal fees for claimants; £250 for unfair
dismissal claim
• Tribunal Judge sitting alone in UD cases
• Protected conversations (not discrimination)
• All potential Tribunal claims to be lodged with
ACAS for mediation (2014)
• Financial penalties on Employers, max £5K
(2014)
• Fast Track system for some claims – eg
holiday pay, no hearings?
Change on the way?
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EAT; Judges to sit alone in many more cases
PID Act – amended protection rules June 2013
Deposit orders up from £500 to £1000
Costs awarded by Tribunal from £10K to £20k
Standard texts for Compromise Agreements to be
called “Settlement Agreements”. Summer 2013?
• WT Regs – holiday pay carry over clarification
• State paid expenses no longer available – one
party to pay?
• Employee owner status – loss of employment
rights in return for shares. Summer 2013?
Change on the way?
2013
• Repeal of Third Party Harassment rules
• Repeal of Discrimination Questionnaires procedure
• Early ACAS conciliation process.
• Changes to Tribunal procedures; case management; strike
outs; consistency; merge PHR and CMD hearings;
• Reduction of cap on unfair dismissal compensation
limited to one years pay (or £74,200), whichever is
lower.
2014?
• Fines on Employers for breach of rights; max £5000
Tribunal Fees- proposals
Planned for Summer 2013
• Level 1(straightforward) claims £160 issue fee;
£230 hearing fee
• Level 2 claims (the rest!) £250 issue fee; £950
hearing fee
• Employment Appeals £400 appeal fee; £1,200
hearing fee
Vetting and Barring
Changes implemented 10 September 2012
•Change of definition – regulated activity
•‘Adults’ not ‘vulnerable adults’
•Removal of controlled activity
•No registration and ongoing monitoring
Vetting and Barring
• Minimum age of 16 years for CRB check
• CRB and ISA merged on 1 December 2012 –
now the Disclosure and Barring Service (DBS)
• Portable checks – 2013?
• R (T and others) v Chief Constable of Greater
Manchester and others [2013] – should all
criminal convictions be disclosed?
Employment Status
Cases continue to surface however.
Autoclenz v Belcher CA 2009
Car valeters argue for employment status – Supreme
Court 2011
Quashie v Stringfellows Restaurants Can a
Lapdancer claim unfair dismissal (ie are they an
“employee”)? Yes, says EAT; no said Court of
Appeal 2012!
Weight Watchers UK v HMRC (tax case) – dispute
involving status of “WW Leaders”
Holiday Rights
Airline pilots’ holiday pay cannot be restricted to basic pay and
should include certain flying allowances.
• British Airways v Williams – ECJ/Supreme Court 2012
Referred back to Tribunal for consideration of what should be
included, with guidance that workers on holiday are entitled
to receive “normal remuneration”
Carry over only applies to 4 week WTD entitlement
• Neidel v Stadt Frankfurt am Main ECJ 2012
Family Friendly Update
Family Friendly Issues
• Statutory maternity, paternity and adoption pay
up to £135.45 from April 12 (£136.78 from April 13)
• Proposals for SMP to be paid for 52 weeks have been
shelved.
• Flexible working reforms have recently been announced
that will allow parents to share up to a year's leave after the
birth of their child. The changes in flexible working are
planned to be implemented in 2014 and to give flexible
parental leave in 2015. Unpaid time off for partner to attend
two ante natal appointments.
• Flexible working available to all employees 2014
Additional Paternity Leave
Additional Paternity Leave
• Applies to adoption leave too
• Applies where the EWC is on or after 3 April
2011
• Mother must return to work (not holiday or
sickness absence)
• Continues up to child’s first birthday
• Declaration forms on HMRC website
Parental Leave
Increase from 13 weeks to 18 weeks leave.
Due to come in during March 2012.
Government has taken advantage of a
delaying clause, so came into effect in
March 2013.
Rights for Working
Grandparents!
Equality Act
Applies to nine “protected characteristics – all
of which were protected under previous
discrimination legislation
Equality Act
Protected characteristics:
• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation
Equality Act
Associative Discrimination
(NB excludes marriage and civil partnership)
Equality Act
Associative Discrimination
Fixed term contract welder loses job
• Bainbridge v Atlas Structures Ltd. ET 2012
Equality Act
Disability discrimination: pre-employment health
questions – six permissible areas:
What are they??
Equality Act
Disability discrimination: pre-employment health
questions – six permissible areas:
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Reasonable adjustments in recruitment/testing
Monitoring purposes
Guaranteed Interview Scheme
Occupational Requirement
Intrinsic to the job
National Security
Equality Act – Case Law.
• Are volunteers covered? No said Supreme Court in
X v Mid Sussex Citizens Advice Bureau, a
disability claim
• Is obesity a Disability under the Act? No said the
EAT recently. Obesity is not covered in its own right
but may lead to someone meeting the legal
definition to be found in the Equality Act.
Walker v Sita Ltd. EAT 2013.
Religion and Belief
Religion and Belief update
Grainger plc and ors v Nicholson. EAT, 3.11.09 .
Environmental views capable of protection.
The EAT had had regard to case law of the European
Court of Human Rights to the effect that, for a belief to
qualify for protection, it must have:
sufficient cogency, seriousness, cohesion and
importance, in addition to being worthy of respect in a
civilised society.
Religion and Belief update
• Eweida v BA Court of Appeal 2010
Refusal to remove cross not
discrimination; CA agrees with EAT
(2009), appeal to Supreme Court denied,
now off to ECHR! January 2013 ECJ.
• Cherfi v G4S Security EAT 2011 –
refusal of request to attend Friday prayers
“reasonable”.
Religion and Belief update
• Ladele v London Borough of Islington [EAT 09; CA
confirms EAT decision]
Balancing rights on grounds of Religion and Sexual Orientation
(Registrar refuses civil partner duties)
• McFarlane v Relate Avon Ltd [ET Case 09]
Refusal, on religious grounds, to counsel same sex
• Hashman v Orchard Park Garden Centre [ET 2011] animal rights campaigner – fact specific, not every anti hunter
protected
Religion and Belief update
• Chondol v Liverpool City Council (EAT 09)
Dismissal of care worker who asked vulnerable person about
their religious beliefs
• Mba v London Borough of Merton EAT 2013
Refusal to work Sundays leads to disciplinary action.
• Redfearn v United Kingdom (ECJ 2012) Political belief?
Bus driver dismissed over BNP membership.
NB. Change in the law on dismissal and Political Belief from
June 2013 – not discrimination, but automatically unfair, so
no service requirement.
Age Discrimination
• Keane V Investigo And Others [ EAT 2010] – serial
litigant
• O’Reilly v British Broadcasting Corporation [2011] –
ageism
• Newey v Sainsbury’s Supermarkets ET 2011 Managers
comments amount to Age discrimination
• James v Gina Shoes EAT 2012 – comments about training
and “old dog, new tricks” remark
• Berry v Recruitment Revolution EAT 2011 – job advert
for “junior administrator” and “suitable for School leaver”
Redundancy
Significant reduction in hours still gave rise to a
redundancy situation.
• Packman Lucas Associates v Fauchon EAT 2012
Case law update
Facebook, Twitter and tweets!
• Facebook comment = gross misconduct.
Crisp v Apple Retail ET 2011
• Facebook thoughts/comments on gay marriage
not gross misconduct
Smith v Trafford Housing High Court 2012
• Comments on “LinkedIn”; constructive dismissal
claim upheld.
Flexman v BG International EAT 2012
Miscellaneous update
Employer could be vicariously liable for a workplace murder!
• Vaickuviene – J. Sainsbury Ltd. Court of Session 2012
The EAT describes covert recordings as “distasteful”; but not
for the first time, agrees that they can be used as evidence
in Tribunals, after a woman produced hours of recorded
disciplinary conversations obtained on an iPod.
 Vaughan v London Borough of Lewisham. EAT 2013.
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