CIPD Annual Employment Law Update 22 January 2008

1. CIPD Annual Employment Law Update22 January 2008

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

3. General Developments

4. Claims rose by 15% General developmentsTribunal trends 06/07Claims & compensation Average awards • Unfair dismissal £7,974 • Race discrimination £14,049 • Sex discrimination £10,052 • Disability discrimination £15,059 • Costs award £2,078 To 132,577 Unfair dismissal/equal pay most common claims

5. General developments Annual leave 4.8 weeks 5.6 weeks • 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 1.10.07 1.04.09

6. General developments Discrimination • 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)

7. General developmentsDiscrimination • 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

8. General developments Discrimination • 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

9. General developments Companies Act 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

10. Case Law Round Up 2007

11. 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

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

13. 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

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

15. 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

16. 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

17. 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)

18. 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

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

20. 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

21. 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

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

23. 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

24. 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

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

26. 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

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

28. 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”

29. 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

30. 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

31. 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

32. 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

33. 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

34. Case Law Round Up 2007Age 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)

35. Any challenges on the horizon?

36. Statutory dispute resolution When will we see changes? Gibbons review Employment Simplification Bill Secondary legislation April 2009? Government consultation 2007/2008 2008/2009 Completed

37. Statutory dispute resolution How will it change? • 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

38. The discrimination law review Single Equality Act 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 more technical 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 Some of the broader proposals

39. The discrimination law review Single Equality Act proposals • 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

40. Additional Future developments Additional paternity leave (APL) proposals 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

41. Additional Future developments Corporate manslaughter • 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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