Thursday 16 June 2011
Employment Law
Update
1. Retirement
 DRA disappears after 1 Oct 2011
 Last notice to retire – 5 Apr 2011
 People in receipt of notice to retire – 3 months prior
to IRD to request working beyond IRD
 Max extension allowed under transitional
arrangement – 6 months
 Ahead – either EJRA or scrap retirement
 EJRA – proportionality the difficulty!
[cont…]
2. Retirement (cont)
 Capability and performance management – take
care not to treat older workers differently to other
workers – line managers key!
 Appraisals/voluntary retirement plans
Best Practice: Review/introduce robust capability
and performance policies and procedures ensuring
performance issues raised can be supported and is
consistently applied across all workers
3. Group Insurance Benefits
and Age Discrimination
 Carve out from age discrimination for insurance benefits
 New schedule 9, paragraph 14 Equality Act 2010
 Applies to all insurance benefits but
 Breach of contract?
 Top ups not allowed
 Not apply to self-insuring employers (public sector)
Best Practice: Review contractual position and amend
where necessary, adopt strict approach that insurance
benefits cease at 65 or review how you offer access to
benefits, ie. flex-scheme
4. Agency Workers
Regulations 2010 (in brief)
 1 October 2011
 37% unfamiliar AWR
 Employers guidance – www.bis.gov.uk/assets/.../11-905agency-workers-regulations-guidance.pdf
 Agency workers supplied by TWA
 TWA = employment agencies as well as intermediaries such
as umbrella companies, not to self-employed, bank staff
managed service contracts
 Swedish derogation – excluded from AWR – those who are
paid in between assignments by TWA, ie. permanently
employed by TWA – certain conditions must be satisfied
5. AWR – The Rights
 Day one rights – on-site facilities, internal vacancies
 Week 12 rights – pay, holidays, rest breaks, some
bonuses, commission
 Not – company sick pay, maternity pay, redundancy pay
 Pensions – not under AWR, but 2012+ pension reform
 Comparator – “as if test”
 12 week qualifying service – factors affect service
accruing
 Must be in same role with same hirer (not supplier) –
change in role breaks service
6. AWR – Enforcement
Best Practice: Needs to be close relationship
between TWA and hirer, with exchange of
information at outset and regular reviews to
ensure compliance with AWR.
7. Termination Issues
 Dismissal effective when employee reads letter –
Gisda Syf v. Barratt (S/C 2010)
 PILON alone is sufficient to terminate contract –
Societe Generale v. Geys (CA 2011)
Best Practice: Clarity is important to avoid disputes
– verbally notify decision to dismiss, ensure personal
delivery of dismissal letter (or both) and expressly
confirm exercising PILON.
8. Dismissal – Procedural
Points
 Specify exact allegations – Celebi v. Compass (EAT 2010)
 SOSR – not a disciplinary procedure as not conduct
(Ezsias v. North Glamorgan NHS Trust (EAT 2011)
 R (Shoesmith) v. Ofsted & Ors (CA 2011) – unlawful
directions procedurally unfair
Best Practice: Although SOSR not conduct, advisable to
follow principles of natural justice, key to ensure no
misunderstanding on facts. Clearly state allegations of
misconduct and cross-refer to policies, procedures and
disciplinary examples.
9. Dismissal – Reasonableness
 Reasonableness of previous warnings – Davies v.
Sandwell Metropolitan BC (EAT 2011)
 Lewd comment dismissal – context and surrounding
circumstances relevant - Bowater v. NW London Hospitals
NHS (CA 2011)
 Dismissal with notice can be fair – Weston Recovery
Services v. Fisher EAT 2010
Best Practice: Most common reason for dismissal to be
unfair is test of “reasonableness”, so take care to ensure
dismissal is within range of reasonable responses of
reasonable employer taking away subjective opinion.
10. Social Media &
Misconduct
 Fair dismissal – offensive email sent from home
computer to another personal computer – Gosden v.
Lifeline Project Ltd (ET 2011)
 Fair dismissal – inappropriate comments on Facebook –
Preece v. JD Wetherspoons Plc (ET 2010)
Best Practice: Employers should put in place policy
covering conduct outside workplace including use of social
media, which warns of risk of dismissal where company or
staff are brought into disrepute or where evidence of
bullying or discrimination.
11. Time off to Care for
Dependants
 Reason for dismissal held to be for refusal to sign a late
form, lateness being caused by childcare issues –
automatically unfair under s99 ERA 1996
 Pressure to sign late form and deduction of pay –
detriment under s47C ERA 1996
 Clarke v. Credit Resource Solutions 2010
Best Practice: Exercise caution when dealing with
disciplinary or capability issues which emanate from
exercising right to time off to care for dependants.
12. Negligent (NonReference) Statements
 Duty of care exists to former employee in the provision of
a reference (Spring v. Guardian Assurance 1995)
 Statement made by former employer 6 years later
resulted in dismissal of individual in current employment
 McKie v. Swindon College 2011
Best Practice: If you have nothing good to say, don’t say
anything at all! All communications in relation to former
employees should be approved by HR.
13. Surveillance Evidence
and Dismissal
 Common in capability issues –
malingering/exaggeration
 Pacey v. Caterpillar Logistics Services (UK) Ltd
Best Practice: Where surveillance evidence
obtained and relevant to absence issues, don’t
reach own conclusions but seek medical input and
follow fair procedure.
14. Apprenticeships




Worker on day release to college
Receiving on job training
Individual learning plan
Contract of apprenticeship, not standard
employment Contract – Chassis & Cab
Specialists Ltd v. Lee (EAT 2010)
 Distinction important
Best Practice: Identify clearly at outset nature of
contract to avoid later mistake/uncertainty.
15. Harassment
 Violates dignity or creates intimidating, offensive or
hostile environment for complainant
 Subjective test – feelings of complainant relevant and
whether reasonable to feel as such
 Complainant’s own past behaviour such that not
reasonable for him to feel way he did – Thomas
Sanderson Blinds v. English
Best Practice: Best line of defence is attack – where
complaint of conduct has substance, consider whether
reasonable for complainant to conclude environment
offensive.
16. Discriminatory Selection
Criteria
 Eversheds v. De Belin (EAT 2011)
 Notional score awarded to employee on maternity leave
indirect discrimination
 Obligation to protect employees on maternity leave
under s2(2) SDA 1975, limited to reasonably necessary
treatment, ie. proportionate
 Disproportionate maternity benefits are discriminatory
towards men
Best Practice: Review carefully redundancy
criteria and scoring to ensure non-discriminatory.
17. Disability – Reasonable
Adjustments
 Offering ill health retirement not within scope (Tameside
Hospital NHS Trust v. Mylott) (nb. consider issue of fairness of
dismissal?)
 Expensive adjustments not reasonable (Cordell v. Foreign &
Commonwealth Office (2011))
 Practical effect of RA to remedy disadvantage suffered – no
sick pay in line with policy not failure (RBS v. Ashton (2011))
Best Practice RAs key to disability discrimination
legislation – consider effectiveness in remedying
disadvantage, its practicality and cost against your
financial resources, size and external support.
18. Immigration Status and
Dismissal
 Kurumuth v. NHS Trust North Middlesex University Hospital
(EAT 2011)
 Uncertainty over right to work in UK was fair reason to
dismiss
 Reasonable – proper enquiries made
Best Practice: Financial penalties and possible
prosecutions for employing individuals who do not
have right to work in UK. Right to work should be
checked at outset when employment commences
and reviewed regularly.
19. Bribery Act 2010





Implementation 1 July 2011
Corporate offence – failing to prevent within organisation
Statutory defence
Defence will require anti-corruption procedures
Applies to conduct abroad as long as carries on business
in UK
 Guidance published on “adequate procedures”
Best Practice: Consider need for anti-corruption/bribery
policies and review your whistle-blowing, expenses,
corporate hospitality and disciplinary procedures.
20. Let Us Pray!
 Cherfi v. G4S Security Services Ltd (EAT 2010)
- refusal to leave site on Fridays to attend prayers justified
- PCP – proportionate means of achieving a legitimate aim
- indicated that Woodcock v. Cumbria Primary Care Trust
2011 “correct” – cost alone!
- “proportionality” – employer had tried to mitigate impact
of PCP – prayer room onsite, offered work on other days
Best Practice: Impossible to apply a standalone policy
on “attending prayers” as each matter is fact sensitive
regarding nature of job, hours of work and commercial
pressures
21. In Prison – Entitled to
Pay?




Burns v. Santander UK Plc
Job kept open but stopped wages
Claim for unlawful deduction of wages
Argued ready and willing to work but “unavoidably
prevented from doing so”
 Held – being remanded in custody was “avoidable” –
not entitled to wages
Best Practice: Make express provision for entitlement to
wages to automatically cease when remanded in custody
Taylors Solicitors
Employment Team
Oliver McCann – Elaine Hurn
Rawlings House
Exchange Street
BLACKBURN
BB1 7JN
Ninth Floor
80 Mosley Street
MANCHESTER
M2 3FX
Tel: 0844 8000 263
www.taylors.com