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? 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?• 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- proposalsPlanned 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?

Cases continue to surface however.Autoclenz v Belcher CA 2009Car valeters argue for employment status – Supreme

Court 2011Quashie 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”

Employment Status

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

Holiday Rights

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 WorkingGrandparents!

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

Equality ActAssociative Discrimination

(NB excludes marriage and civil partnership)

Fixed term contract welder loses job

• Bainbridge v Atlas Structures Ltd. ET 2012

Equality ActAssociative Discrimination

Disability discrimination: pre-employment health questions – six permissible areas:

What are they??

Equality Act

Disability discrimination: pre-employment health questions – six permissible areas:

• Reasonable adjustments in recruitment/testing• Monitoring purposes• Guaranteed Interview Scheme• Occupational Requirement• Intrinsic to the job• National Security

Equality Act

• 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.

Equality Act – Case Law.

Religion and Belief

Religion and Belief updateGrainger 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 2013Refusal 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 updateFacebook, 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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