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Blake Lapthorn's Employment law team host its Thames Valley HR forum in Oxford on 1 February 2011.
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Review of the year and what to look forward to in 2011
Thames Valley HR forumFebruary 2011
Unfair dismissal - misconduct
The importance of a reasonable investigation– Salford Royal NHS Foundation Trust v Roldan CA –
conflict of evidence– City of Edinburgh Council v Dickson EAT – employee’s
explanation not taken seriouslyFraming the allegation correctly– Celebi v Scolarest Compass Group UK EAT – failure to
state that the employee was accused of theftHolding the hearing in the absence of the employee– Bashir v Sheffield Teaching Hospital NHS Foundation
Trust EAT – unreasonable and obstructive employees
Unfair dismissal - misconduct
Effective date of dismissal– Gisda Cyf v Barratt, SC – dismissal takes effect on the
date the letter is readMitigation– Kelly v University of Southampton EAT – applying for
posts with the same employerOverlapping grievance and disciplinary procedures– Samuel Smith Old Brewery v Marshall EAT –
disciplinary hearing can take place before grievance procedure completed
Unfair dismissal - redundancy
Scoring on the basis of objective criteria– Pinewood Repro Ltd v Page EAT – failure to explain
scoringBumping– Fulcrum Pharma Ltd v Bonassera EAT – failure to
consider bumping into a more junior roleEmployees on maternity leave– Simpson v Endsleigh Insurance Services Ltd EAT – is
there a suitable alternative vacancy?
Constructive dismissal
The range of reasonable responses test is not relevant to the issue of whether there has been a fundamental breach of contractA fundamental breach cannot be “cured”– Buckland v Bournemouth University Higher Education
Corporation CA
Contractual terms
Bonuses– Rutherford v Seymour Pierce Ltd – is eligibility for a bonus
dependant on still being employed?– Humphreys v Norilsk Nickel International (UK) Ltd –
discretion to pay bonus must not be exercised irrationally or perversely
Right to vary contracts– Bateman and ors v Asda Stores Ltd EAT – wording in
handbook gave employer right to vary contractual termsHoliday– Lyons v Mitie Security Ltd EAT – use it or lose it?
Whistleblowing
Protection from detriment provisions are not limited to disclosures made during employment with the present employer – BP Plc v Elstone EAT
Discrimination
Age– Seldon v Clarks and Wright CA – objective justification
Religion or belief– Ladele v London Borough of Islington CA – dismissal
was not discriminatory– Amachree v Wandsworth Borough Council ET –
imposing religious beliefs on a third party– Haye v London Borough of Lewisham ET
Pregnancy and Sex – Nixon v Coates Solicitors EAT – office gossip
amounted to discrimination
Discrimination
Disability – reasonable adjustments– Secretary of State for Work and Pensions v Wilson
EAT – working from home– Hinsley v Chief Constable of West Mercia
Constabulary EAT – reinstatement – Chief Constable of South Yorkshire v Jelic CA – job
swapCompensation– Chagger v Abbey National plc CA – stigma damages
Looking forward: issues on the horizon
Jim WhiterHead of Oxford Employment team
Looking forward
Extension of right to request flexible workingAdditional Paternity Leave Regulations 2010Agency Worker Regulations 2010Bribery Act 2010Default Retirement Age : A reminderNew Compensation Limits
Extension of Right to Request Flexible Working
Currently available to parents of children under 17 and disabled children under 18 and carers of certain adultsFrom April 2011 the right is extended to parents of children under 18. Estimated that it will benefit a further 288,000 employeesThe Government is consulting on extending the right to all employees
Additional Paternity Leave Regulations 2010
Birthsfather of the baby and/or the husband or partner of woman due to give birth on or after 3 April 2011responsibility for baby’s upbringing26 weeks’ service by qualifying week (15th week before EWC)taking time off to care for the babyup to 26 weeks’ leave but must be taken between 20 and 52 weeks after the child is born mother must have returned to work
Additional Paternity Leave Regulations
Adoptionsspouse or partner of child’s co-adoptermatched with child for adoption on or after 3 Aprilresponsibility for child’s upbringing26 weeks’ service by qualifying week (the later of week official notification received or week employee had 26 weeks’ service)taking time off to care for a childup to 26 weeks’ leave to be taken between 20 and 52 weeks after child starts living with adopterco-adopter must have returned to work
Additional Paternity Leave Regulations : Procedure
Employees required to give 8 weeks’ written notice before start of leaveHMRC forms available but employer can create it’s ownMust include declaration that the purpose of the leave is to care for the child; date of birth or placement; employee is the father of the child or husband/partner of child’s mother or co-adopter; they have or expect to have responsibility for the upbringing of the child.Child’s mother or co-adopter must also provide declaration (including personal details; that they have notified their intention to return to work to their employer and the date; date SMP or SAP period started; that the employee is their spouse, or partner and was jointly matched for adoption)Employer can request additional information within 28 days of receiving the notification (eg birth certificate or details of mother’s employer)
Additional Paternity Leave : Rights
Fathers and partners who take APL have similar rights to those enjoyed by women on ML (eg benefit of terms and conditions (but not remuneration); not to be subjected to detriment or dismissal for taking APL; KIT days)Additional Statutory Paternity Pay– Lower of £128.73 (from April) or 90% of average
weekly earningsEnhanced pay?
“Flexible” Maternity and Paternity Leave?
Proposals for “shared parental leave” from 2015 –Government consultation is due to be published
Parents to be able to take leave at the same time?
Time off to be taken in separate blocks rather than all in one go?
Agency Workers Regulations 2010
Implement the EU Temporary Agency Workers Directive
1 October 2011
Giving agency workers the right to equal treatment
After 12 weeks on an assignment
Who is an “Agency Worker”?
someone supplied by a temporary work agency;to work temporarily for and under the supervision and direction of a hirer; andhas a contract of employment with the agency or a contract to perform work and services personally for the agency.Does not include the genuinely self-employed and workers on “managed service contracts” (eg IT support or catering)
Rights of Agency Workers
Right to the same “basic working and employment conditions” as a comparable employee of the hirer after twelve weeks on an assignment
The comparable employee must work for the hirer doing the same or broadly similar work
Basic Working and Employment Conditions
Pay– basic pay and entitlements linked to the work
undertaken while on assignment (e.g holiday pay; overtime; shift allowances; unsocial hours premiums; individual performance bonuses and vouchers)
– does not include share participation; profit sharing schemes; contractual sick pay or redundancy pay; occupational pension; car allowances; health insurance; or bonus based on business performance.
Working Time – duration; length of night work; rest periods and breaks;
holiday entitlement
Miscellaneous Rights of Agency Workers
Right to be given notice of hirer’s permanent vacancies from day oneAccess to hirer’s onsite facilities (e.g canteen, childcare facilities and transport services) from day oneRights for pregnant workers and new mothers after 12 weeks (eg paid time off for antenatal appointments)
Anti Avoidance
Right to equal treatment in pay and conditions depends on twelve weeks continuous assignmentEleven week assignment is possible but beware successive assignments Continuity will only be broken if break of six weeks or more during or between assignments or if worker given a new role with the same hirer comprising “substantively different” duties or work
Failure to Comply
Agency worker can make claim to ET within three months of infringement or detrimentET can order payment of compensation, make declarations and recommend action be taken“Just and equitable” compensation taking account of the nature of the breach; financial loss suffered and expenses incurred. Minimum compensation of two weeks’ payAdditional compensation of up to £5,000 if avoidance measures are proved
Issues for Hirers
“Temp to perm” fees can still be chargedNew administrative burden to assess whether Regulations apply; whether there is a comparator; and if so, providing information to the agencyResult in higher cost of agency workers?Risk of potential claims (but may also reduce the risk of agency workers asserting that they are employees of the hirer)
Issues for Agencies
Need to revise contractual terms dealing with provision of comparator information and recognising the need for co-operation with the hirerMore “turnover” of workers if increased use of assignments for less than twelve weeks? Hirers may require indemnities in relation to liabilities under the Regulations and confidentiality and non-poach undertakings
The Bribery Act 2010
April 2011“Bribe” is a financial or other advantage used to induce improper performance of a public or business function or activityCriminal offence to offer, promise or give a bribe; to request, agree to receive or accept a bribe; to bribe a foreign public officialCriminal offence for a business to fail to prevent bribery on its behalf unless it can show it had “adequate procedures” in place to prevent such conductImprisonment or unlimited fineEmployers should provide guidance on accepting gifts and hospitality; review policies and procedures; and make clear thatit will be considered an act of gross misconduct
Removal of Default Retirement Age: A Reminder
Response to consultation now publishedNo new notices of intended retirement may be issued after 6 April 2011Compulsory retirements notified before 6 April to take effect before 1 October 2011 are validCompulsory retirements notified before 6 April 2011 to take effect after 1 October 2011 will not be validCompulsory retirement ages will need to be objectively justified (pursuit of legitimate aim in a proportionate manner)ACAS Guidance for employers
New Compensation Limits
From today (1 February 2011)The limit on a week’s pay increased to £400 (from £380). Relevant for SRP and basic award calculation in unfair dismissalMaximum compensatory award for unfair dismissal is £68,400 (from £65,300)Note that unlimited compensation continues to apply to discrimination claims and certain dismissals (eg if for whistle blowing or H&S reasons)
Review of the year and what to look forward to in 2011
Thames Valley HR forumFebruary 2011
