Oliver McCannn
|
Employers Update - December 2010
Welcome to the last Employ
edition for 2010.
How quickly time passes by! Rather
than the usual round up of HR and
employment law developments over the
past month we take a look at the
five most important developments
over the past year and the five
things to watch out for in 2011.
If you have any queries or wish to
have a chat about Taylors Employment
Services please contact Oliver
McCann on 0844 8000 263
or
oliver.mccann@taylors.co.uk.
In the meantime best wishes for
Christmas and 2011.
Oliver McCann - Partner and
Head of Employment
James Bellamy
- Employment Solicitor
Tel: 0844 8000 263
Email:
oliver.mccann@taylors.co.uk
|
|
|
|
Introduced with effect 1st October 2010
it is still early day. The intention was to
bring under one umbrella all discrimination
legislation – that has worked but we now
have an enormous piece of legislation which
at times is hard to navigate through.
All though much of the Equality Act simply
retains what was previously in place there
are new developments, some which are in now
and some which are to come in place next
year or later on.
Discrimination by perception and association
are now formally set out in legislation for
all protected characteristics.
The Equality Act has also redefined the
comparator in discrimination claims to the
pre Malcolm position. This means that a
relevant comparator now is someone with the
same or similar disability but who has not
done the act in question. i.e. they have not
been absent due to an alleged disability.
One addition and glimmer of hope for
employers is that the treatment may be
objectively justified although there is
little guidance what will constitute
objective justification but presumably it
will be akin to what reasonable adjustments
could be made if any.
Pre employment medical questionnaires are
now unlawful until the offer stage and as
such many employers across the Country will
have to modify their recruitment process.
There are exceptions to the rule but extreme
care needs to be taken in this regard.
Following the long awaited decision in
Heydey the Government decided recently to
abolish with a default retirement age in the
UK with effect 1st October 2011 with the
retirement procedures being abolished with
effect 6th April 2011. It will be unlawful
to retire anyone after the 1st October (at
any age) unless you can objectively justify
such a decision.
What is clear however is that employers can
adopt their own contractual retirement age
but you must ensure that you can objectively
justify such a policy. The decision this
year in Seldon v Clarkson, Wright and Jakes
and also in a ECJ case of Rosenblat v
Ollerking both provide useful guidance as to
what may constitute objective justification
for a retirement decision.
There has been a string of recent cases
on this point. The first case which granted
an employee this right was Kulkarni v Milton
Keynes Hospital but this appeared to limit
its scope to public sector employers. More
recent cases of R v X School & Hameed v
Central Manchester University Hospitals
Foundation Trust have extended its scope to
private sector employers.
What employers should however bear in mind
is that employees will only be entitled to
legal representation if the consequences of
any disciplinary sanction go beyond possible
dismissal. i.e. that wider implications such
as that person being prevented from working
within their profession may result as a
finding of guilt. e.g. a professional such
as a solicitor being prevented from
practising due to the fact that they are
barred from continued membership to the
profession.
The case of Kirk v Middlesborough Borough
Council 2010 distinguished the previous
cases and limited the scope of the right to
legal representation to situations when
future employment opportunities are
affected. Kirk (who was a social worker)
involved an allegation that a mother had
allowed a man into her home who had
previously been accused of sexual abuse
against her son which placed her partners
daughter at risk. The disciplinary
proceedings were brought by her employer for
a failure to inform them of the
investigation into the allegation and as
such that in itself could not have led to a
barring order from the ISA and did not fall
within the previous cases for exercising the
right to legal representation. The court
also pointed out that this principle should
not apply to private law employment matters
with a standalone disciplinary issue.
The Bateman v ASDA case appeared to have
opened the way for employers to unilaterally
change employees terms and conditions of
employment. This hasn't however given
employers a carte blanche authority to do so
and employers must still take care to ensure
they have a contractual right to do so and
that the change can be justified on business
grounds.
However it does act as an important reminder
to build flexibility in to your employment
documents particularly in relation to pay,
hours and place of work.
We all thought that this issue would
finally be resolved in the case of Stringer
however due to the key issue being conceded
it fell some way short of providing all the
answers. What we now know from this and the
subsequent cases of Pereda and Shah is that:
a. workers can carry over
leave from one year to the next if they have
been prevented from claiming leave due to
sickness
b. Workers can reclaim leave already booked
and possibly taken if they have fallen ill
during or just before it
c. Outstanding holiday pay can be claimed as
an unlawful deduction of wages claim
As above we are all waiting for clearer
guidance on what the options are for
employers if the government, as expected,
abolishes the default retirement age
completely.
The government’s response to consultation is
due imminently so keep your eye out for it
as it is also anticipate that they will give
guidance on both contractual retirement
policies and running an organisation without
a retirement age.
Despite the fact that employers can
objectively justify a contractual retirement
age this is still a risky line to take and
careful consideration needs to be given to
the organisations policy in this regard and
no later then end of March 2011.
Employers may prefer to use conduct or
capability issues to remove employees in
that age bracket which in turn does not lead
to a harmonious end to what may have been a
long a good natured working relationship.
Some form of guidance is therefore eagerly
awaited by all
Whether the circumvention of TUPE under
Reg 8(7) (which covers transfers arising
form a transferor subject to insolvency
proceedings with a view to liquidation of
assets) following Oakland v Wellswood 2010
will remain good law.
We are awaiting the decision of the EAT in a
number of cases that are putting the
decision of Oakland to the test. At the
moment, under Oakland, employees of a
company in administration may not be
afforded the protection of TUPE even if the
business is purchased by a third party and
those employees transfer across where it is
held the administration process was with a
view to liquidation of assets such that
Regulation 8(7) TUPE applies which in turn
disapplies automatic transfer of contracts
of employment and liability for pre transfer
dismissals.
BIS has always stated before in guidance to
insolvency practitioners that an
administration can never fall under
Regulation 8(7) and hence the reason Oakland
was deemed ground breaking law as it turned
on its head previously accepted practice
that sales of businesses from
administrations would always be caught by
TUPE.
It is widely anticipated that the current
cases proceeding through the EAT will
disagree with Oakland which will mean
companies in administration being less
attractive to potential purchasers. It is
uncertain as to the extent they will
disagree but assuming they do then it maybe
necessary to wait further for on those cases
to proceed to the Court of Appeal for a
binding decision for greater clarity.
Edwards v Chesterfield. This is a case in
which an employee is claiming ongoing loss
of earnings for what is a breach of contract
claim whereby ordinarily such claims would
be limited to the value of earnings during
any contractual notice period.
Here a doctor was dismissed summarily,
allegedly in breach of the NHS Trusts
contractual disciplinary procedure. The
Doctor alleges had the Trust complied with
its contractual obligations under the
disciplinary process he would not have been
dismissed and as such pursues £4m
compensation for loss of earnings arising
from the breach of contract. The Trust argue
that any claim should be limited to the
contractual notice period as the Trust could
have lawfully terminated the contract by
simply giving such notice without further
liability.
Although the doctor may struggle on
causation issues ie proving that the breach
of contract has led to the decision to
dismiss and ultimately his loss this case
demonstrates that employers are exposed if
they breach express terms of the contract of
employment such as an express contractual
disciplinary or grievance procedure. Careful
review of your internal procedures should be
undertaken.
Expectant fathers will soon be entitled
to take additional Paternity leave of
anything from 2 weeks up to 6 months (the
first 2 weeks being Ordinary Paternity
leave) if the mother decides to go back to
work early.
This was originally withdrawn by the Labour
government when the global recession kicked
in but has now been reinstated and will take
effect for those children born after 3rd
April 2011. Watch this space as the European
Union continue to try and impose further
onerous obligations on member states
relating to maternity pay, maternity leave
and paternity leave although member states
recently rejected proposals to increase the
right to full pay during maternity leave to
20 weeks.
The benefits afforded to employers of
employing agency staff may now be over.
Under the new regulations, which come into
force on 1st October 2011, agency workers
are to be afforded (after a period of 12
weeks continuous work) equal treatment in
relation to terms and conditions of
employment as permanent employees.
It remains to be seen how this will work out
and whether employers will still bear the
additional cost to have the benefit of a
flexible workforce to meet fluctuating
demands. Taylors will continue to keep you
informed of development on this matter
throughout 2011.
Copyright 2006 - 2010 Taylors Solicitors
»
Print
» |
