CIPD Annual Employment Law Update
22 January 2008

Annual Employment Law Update
• General Developments
• Case Law Round Up
• Horizon Issues

General Developments

To
132,577 Unfair dismissal/equal pay most common claims
Claims rose by 15%
Average awards
• Unfair dismissal
• Race discrimination
£7,974
£14,049
• Sex discrimination £10,052
• Disability discrimination £15,059
• Costs award £2,078

General developments
4.8 weeks 5.6 weeks
1.10.07
1.04.09
• Equivalent to 24, then 28, days for FT worker
• No new right to take public holidays
• What if worker’s contract gives statutory plus bank holidays? Increase to 32 and then 36 days?
• Transitional arrangements until 2009
• DBERR’s holiday entitlement ready reckoner helpful

General developments
• Commission for Equality & Human Rights
(CEHR)
– Slowly raising profile (eg T Phillips speeches)
– CRE/EOC/DRC handover Oct 2007
– A view that it will focus on public bodies in the short term (driving equality duty compliance)

General developments
• Equality Act 2006 – Amendment of definition of religion and belief
• Revoked requirement that philosophical belief needs to be “similar” to religious belief
• Does it widen the definition to include political belief?
• Government denies any such intention
• Also, added protection based on a lack of religion and belief

General developments
• ACAS sexual orientation & religion claims research:
• Bullying & harassment were the dominant claims
• Often in the form of verbal abuse
• Pattern of “slow motion” discrimination; ongoing banter and then last straw

General developments
Companies Act – Oct 2007
• Codification of director’s duties introduced
• Shareholder approval for contracts 2+ years
(some exclusions apply)
• Severance payments
• Shareholder may request copy of director’s contract

Case Law Round Up 2007

Case Law Round Up 2007
Dismissal where Employer has caused incapacity
RBS v McAdie (CA)
• Employer’s fault a relevant factor
• Dismissal may still be fair
• Additional considerations

Case Law Round Up 2007
“Without Prejudice” discussions
Framlington Group Ltd v Barneston (CA)
Brunel University v Webster (CA)
• Is there a dispute?

Case Law Round Up 2007
Whistleblowing – Vicarious Liability
Cumbria County Council v Carlisle-Morgan (EAT)
• Employer liable for acts of colleagues
• Provided act done in course of employment

Case Law Round Up 2007
Whistleblowing – Reasonable belief
Babula v Waltham Forest College (CA)
• Previous decision overruled
• Protection extended
• Reasonable belief/good faith

Case Law Round Up 2007
Whistleblowing – Improper Means of
Disclosure
Bolton School v Evans (CA)
• Employee has concerns over data security
• Employee hacks into system
• Employer issues warning for misconduct

Case Law Round Up 2007
Whistleblowing – Burden of Proof
Kuzel v Roche Products Ltd (EAT)
• EAT rejects discrimination approach
• Employment Tribunal entitled to determine reason for detrimental treatment

Case Law Round Up 2007
Agency Workers – Employees of End-User?
Heatherwood and Wrexham Park Hospitals NHS
Trust v Kulubowila (EAT)
• Dacas/Muscat decisions
• Is it necessary to imply a contract?
• Fact sensitive
• James v Greenwich Counsel (CA)

Case Law Round Up 2007
Collective redundancy consultation
UK Coal Mining Ltd v NUM (EAT)
• Consultation extends to business reasons
• Employers must consult ‘with a view to reaching agreement’
• 90 days’ actual pay

Case Law Round Up 2007
Annual Leave
HMRC v Stringer and others
• Statutory holiday & sick leave
• 2006 referral
• Claims stayed pending outcome

Case Law Round Up 2007
Foreseeability of Stress
Deadman v Bristol County Council (CA)
• Grievance panel not properly constituted
• Grievance Procedure letter “insensitive”
• Psychiatric damage not foreseeable
D v Intel Corporation, 2007 Court of Appeal
• Counselling services are no panacea

Case Law Round Up 2007
Grievances - Refusal to return to work
Luke v Stoke on Trent City Council (CA)
• Ability to withhold pay
• Ability to redeploy temporarily

Case Law Round Up 2007
Grievances – Constructive Dismissal
Abbey National v Fairbrother (EAT)
• Grievance handled within reasonable range of responses
• Mutual trust and confidence

Case Law Round Up 2007
TUPE – Service Provision Change
Hunt v Storm Communications (ET)
• SPC may apply to professional services provider
• SPC may apply to a single person
• 70% dedicated to single client

Case Law Round Up 2007
TUPE – No Additional Rights
Jackson v Computershare Investor Services Plc
(CA)
• Transferee enhanced redundancy scheme
• Date of commencement of employment
• Effect of Regulation 5(1) TUPE 1981

Case Law Round Up 2007
Sex Discrimination - Breakdown of personal relationships
B v A (EAT)
• Dismissal by reason of “jealousy”
• Correct comparator
• “Reason why” is vital

Case Law Round Up 2007
Equal Pay
• Bainbridge v Redcar & Cleveland BC
– Pay protection
– Retrospective effect of job evaluation
• Joss v Cumbria
– End of employment for time limit
• Allen v GMB
– Sex discrimination against Trade Union

Case Law Round Up 2007
Victimisation
St Helens Borough Council v Derbyshire (HL)
• Equal Pay claims
• Warning to Claimants about redundancies
• Under pressure

Case Law Round Up 2007
Harassment – Liability for Third Parties
Pearce v Governing Body of Mayfield Schools (HL)
Gravell v London Borough of Bexley (EAT)
• New definition of harassment: “intimidating, hostile, degrading, humiliating or offensive environment”

Case Law Round Up 2007
Time limits – when does time start to run?
Lyfar v Brighton and Sussex University Hospitals
NHS Trust (CA)
• One-off acts of discrimination
• Acts extending over a period
• 3 months’ time limit
• Substance of complaints

Case Law Round Up 2007
Discrimination – Reversal of Burden of Proof
Madarassy v Nomura International plc (CA)
• Difference in sex and treatment
• What evidence can be adduced at Stage 1
• Comparators in pregnancy cases

Case Law Round Up 2007
DDA – Reasonable Adjustments
Spence v Intype Libra Ltd
• No duty to obtain medical report
• No duty to consult
• Good practice

Case Law Round Up 2007
DDA – Reasonable Adjustments
O’Hanlon v HMRC, 2007 Court of Appeal
• Sick pay entitlement
• Reasonable adjustment to extend sick pay
• Nottinghamshire County Council v Meikle

Case Law Round Up 2007
Discrimination by Association
• Attridge Law & Another v Coleman (EAT)
• Disability discrimination by association
• ECJ referral
• Implications for UK discrimination law

Case Law Round Up 2007
Age discrimination
Heyday
• Unlikely to be decided by ECJ until 2009
• Challenging the retirement provisions and the use of the same justification for direct and indirect age discrimination
• Public sector exposure
• Johns v Solent SD Ltd – claims should be stayed pending outcome of Heyday
• Palacios de la Villa v Cortefiel Servicios SA (ECJ)

Any challenges on the horizon?

Statutory dispute resolution
Gibbons review
Government consultation
Employment
Simplification
Bill
Secondary legislation
April
2009?
2007/2008 2008/2009
Completed

Statutory dispute resolution
• Headlines:
• Statutory dismissal and grievance procedures repealed
• Polkey restored re procedurally unfair dismissals
• Tribunals given discretion to increase awards of compensation by <25% if an employer fails to comply with a code of practice
• Fixed ACAS conciliation periods removed
• Changes to NMW enforcement regime

The discrimination law review
Some of the more technical proposals
• Harmonise indirect discrimination objective justification across the strands including disability
• A single definition for disability discrimination
• Whether GOR tests should apply to all strands except disability
• And more …
Some of the broader proposals
• Introduce a new public sector single equality duty
• Streamline equal pay within the Single
Equality Act
• Whether parents and carer protection should be included in the Act and more

The discrimination law review
• Some employer bodies have welcomed it
– CBI looking for simplification not an overhaul
• Others more critical
– “Proposals fail to measure up” – DRC
– “A missed opportunity” – EOC
– “Met with widespread disappointment” – EOR*
(*Equal opportunities review – M Rubenstein)
• Conclusion – more simplification, less root and branch

Additional Future developments
Consultation on the practicalities closed August 2007:
• APL of up to 26 weeks paid at SPP rates
• 26 weeks' service at 15th week before the EWC
• Mother must return to work, passes leave to father
• Parents self-certify entitlement
• To avoid red-tape
• Due after April 2009
• Alongside extension of SMP
– From 39 to 52 weeks

Additional Future developments
• New criminal offence as of 6 April 2008
• Organisational, not individual, offence
• The way in which activities are managed and organised:
– causes death; and
– amounts to gross breach of duty of care
• Penalty – unlimited fines and publicity/remedial orders
Danger – keep out

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