EMPLOYMENT LAW UPDATE
CIPD LEICESTERSHIRE BRANCH
6 OCTOBER 2009
Chris Finlay
Partner
Mark Haworth
Associate
Repeal of the Statutory Disciplinary and
Grievance Procedures
ACAS Code of Practice
ACAS Code of Practice
• Disciplinary matters
• Grievance matters
• Penalties for non-compliance (adjustment by
up to 25%)
ACAS Code of Practice
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Fairness and transparency promoted
Rules should be set down in writing, be specific and clear
Disciplinary or grievance process must be dealt with fairly
Issues should be dealt with promptly
Employers and employees should act consistently
Conduct “necessary investigations”
Inform employee of problem and provide opportunity to put their
case
• Right to be accompanied
• Right to Appeal against any formal decision
• Keep written records
ACAS Code of Practice
Disciplinary matters
• Establish the facts of each case
• Investigatory meetings
• Inform the employee of the problem
• Disciplinary meeting
• Right to be accompanied
• Decision
• Appeal
ACAS Code of Practice
Grievance matters
• Employee should “let the employer know the
nature of the grievance….This is best done in
writing.”
• Meeting
• Right to be accompanied
• Decision
• Employee “should be allowed to take the
matter further on appeal”
London Borough of Lewisham v Malcolm
Malcolm
• The Disability Discrimination Act 1995 is “an
ambitious and complex Act, seeking to
prevent disabled people being treated
disadvantageously because of their disability”
(Lord Bingham)
Malcolm
Disability Related Discrimination
A person discriminates against a disabled person if:
(a) For a reason which relates to the disabled person’s
disability, he treats him less favourably than he
treats or would treat others to whom that reason
does not or would not apply, and;
(b) He cannot show that the treatment is justified.
Malcolm
Summary
• Applies to Employment cases.
• Overrules Clark v Novacold in relation to
comparators.
• Knowledge required.
Malcolm
Ways round it:
• Reasonable Adjustments
• Harassment
• Disability Equality Duty
• The Equality Bill
The Heyday Challenge to Compulsory
Retirement ages
Heyday Challenge
• Allegation that the Employment Equality
(Age) Regulations 2006 did not correctly
implement the European Framework
Directive on discrimination
• Retirement age of 65 held to be lawful
• Would there have been the same result if the
Regulations were more recent?
Heyday Challenge
• The government is to bring forward its review
of the default retirement age to 2010.
• Consultation closes on 12 October 2009.
• Rolls-Royce Plc v Unite the Union
Transition from “sick notes” to “fit
notes”
Fit notes
• Recommendations from Dame Carol Black in
March 2008.
• Government developing new “fit note”.
• Trial of electronic certificate.
Trade Union Blacklists in the construction
industry.
Blacklists
• Not currently outlawed as such.
• February 2009: offices of the Consulting
Association raided by Office of the
Information Commissioner.
Blacklists
• More than 40 construction companies were
current or previous members.
• Is it actionable?
• Government proposals: Employment
Relations Act 1999 (Blacklists) Regulations
2009
Recent Legislative Changes
Recent Legislative Changes
• Increase in maximum level of a week’s pay to
£380.00
• Increase in national minimum wage (£5.73 to
£5.80 per hour)
• Increases with effect from 1 October 2009
The Equality Bill
The Equality Bill
Aims
• To harmonise Discrimination Law; and
• To strengthen the law to support progress on equality
Size
• 205 sections and 28 schedules.
Scope
• Applies to England, Wales and Scotland
• Will not apply to Northern Ireland
The Equality Bill
Key concepts
“Protected Characteristics”
• Clause 4:
The following characteristics are protected
characteristics – age; disability; gender reassignment; marriage and civil partnership;
pregnancy and maternity; race; religion or
belief; sex; sexual orientation.
The Equality Bill
Direct Discrimination
• Clause 13 (1)
A person (A) discriminates against another
(B) if, because of a protected characteristic A
treats B less favourably than A treats or would
treat others.
The Equality Bill
Indirect Discrimination
• Clause 19 (1)
A person (A) discriminates against another (B) if
A applies to B a provision, criterion or practice
which is discriminatory in relation to a relevant
protected characteristic of B’s.
The Equality Bill
Discrimination arising from a disability
Clause 15 (1)
A person (A) discriminates against a disabled person
(B) if –
• A treats B in a particular way,
• because of B’s disability, the treatment amounts to a
detriment, and
• A cannot show that a treatment is a proportionate
means of achieving a legitimate aim
Equality Bill
Other concepts:
• Harassment
• Victimisation
• Secrecy clauses
• Multiple discrimination
• Positive action
Stringer & Others v HM Revenue
& Customs
Pereda v Madrid Movilidad SA
Stringer
• Employees absent from work on long term
sick leave
• Had not taken any paid holiday
• Employment terminated whilst on sick leave
• Employees’ requests for payment in lieu of
untaken holiday refused
Stringer
European Court of Justice:
• The employees were entitled to compensation in relation to
untaken holiday.
• A worker on sick leave who was unable to take entire annual
leave entitlement must be allowed to carry it over to the next
year.
In the House of Lords:
• Only issue related to whether claim for holiday pay can be made
under Employment Rights Act 1996;
• A payment in lieu of accrued holiday constitutes a sum payable
to a worker in connection with his employment. As a result, it
falls within the definition of “wages”.
• Failure to pay such a sum was therefore an unlawful deduction
from wages.
Pereda
• Mr Pereda suffered an accident at work 14
days before starting his allocated period of 4
weeks’ annual leave.
• The injury put him out of action for six weeks.
• Would Mr Pereda “lose” his holiday?
Implementation of EU Temporary
Agency Workers Directive
Agency Workers
Consultation paper
“The government supports the principle of
ensuring fairer treatment for agency workers
but we also consider it crucial to maintain the
flexibility the agency sector provides for both
workers and employers, which is a key
strength of our labour market”.
Agency Workers
Consultation paper
“Basic Working and Employment Conditions”
• Working time
• Holidays
• Pay
Agency Workers
Consultation paper
• Qualifying period of 12 weeks;
• Improved access to permanent employment
or training;
• Temporary to permanent status;
• Liability for breach
Very Recent Developments
Very Recent Developments
• Increase in Vento damages
• Extension of Paternity Leave rights
• The meaning of “contemplating” collective
redundancies;
• Loss of pension rights in unfair dismissal
compensation
• Service provision changes and TUPE
Any Questions?