Employment Law and Case Review

CIPD Coventry and Warwickshire Branch

August 2013

Employment Law Training Ltd

Practical Workshops and advice for Employers on all Employment Topics

tel: 01789 470 700email: derek@eltraining.co.ukweb: www.eltraining.co.uk

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Change under way?

Change under way?April 2012

• Two years qualification for unfair dismissal• Increase in deposits to £1000• Increase in recoverable costs to £20,000• Tribunal Judge sits alone for most Dismissal cases

Change under way?Spring/Summer 2013• Changes to Whistleblowing law - Public Interest

requirement – June; Employer now has vicarious liability for harassment - July

• No qualifying period for unfair dismissal connected to political belief - June

• Change to implementation date of statutory payments (from Feb to April 2014); rounded to nearest pound.

• Consultation rules amended to 45 days for large scale redundancies/dismissals (100+) - April

• Parental leave up to 18 weeks per child, unpaid. April.

Change under way?Spring/Summer 2013• Tribunal fees and remission rules - July• New ET1 and ET3 forms - July• New cap on unfair dismissal compensation – lower of

one years pay or £74,200 - July• Settlement Agreements replace Compromise

Agreements - July• Judge normally to sit alone at EAT from June.

Change under way?Spring/Summer 2013• Pre Hearing Reviews and Case Management hearings

to be combined into one “Preliminary Hearing” – July• Revised Tribunal rules come into force, including

new powers to “strike out” claims – July• Caste discrimination to be a protected characteristic,

but no implementation date

Change under way?Autumn 2013

• Removal of third party harassment rules from Equality Act

• Employee Shareholders rights introduced• Financial penalties (fines) on Employers; up to £5k

Change under way?April 2014• ACAS early intervention scheme: requires secondary

legislation• Repeal of Discrimination Questionnaires from

Equality Act• Sickness absence Independent Assessment Scheme• Flexible working rights extended to all employees

with 26 weeks service – ACAS to issue Code of Practice

Change under way – possibly!!?No dates.

• Legal officers, not judges, to deal with “simple, low value claims”

• Equal pay Audits for Employers who breach Equal Pay rules

Tribunal Fees – 29 July 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

NB. Subject to two legal challenges! Unison obtain permission for a Judicial Review; probable hearing in October.

Settlement Agreements orWithout prejudice?

•

Adult Rate (over 21) £6.31

Lower rate (18 to21) £5.03

Youth rate (16/17) £3.72

Apprentice minimum wage - £2. 68 per hour.

This rate will apply to:

• apprentices under 19

• apprentices aged 19 and over, but in the first year of their apprenticeship

Minimum Wage RatesOct 2013

Cases continue to surface.

Quashie v Stringfellows Restaurants 2012

Lap dancer seeks to claim unfair dismissal – ie are they an employee?

Yes said EAT, no says Court of Appeal!

Employment Status

Methodist Church v Preston SC 2013

Methodist Minister not an employee; Supreme Court overturns EAT and Court of Appeal!

Employment Status

Religion and Belief

Religion and Belief update

Grainger plc and ors v Nicholson. EAT .

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

• 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• Eweida v BA Court of Appeal 2010

Refusal to remove cross.

Decision January 2013 ECJ

Religion and Belief update

• Redfearn v United Kingdom (ECJ 2012) Political belief? Bus driver dismissed over BNP membership.

Age DiscriminationSRA – Statutory Retirement Age The Government removed the SRA from October

2011.Any compulsory retirement age must now be an

Employer Justified Retirement Age

Age Discrimination

Justification for a Retirement Age? Seldon v Clarkson Wright and Jakes SC 2012

2013 – Tribunal agrees 65 was a proportionate RA• Opens opportunities for promotion and retention• Facilitates workforce planning• Reduced need to discipline/confront employees on

performance issues• Contributes to a congenial and supportive environment• Trade union agreement• Availability of other income e.g. pension

Age DiscriminationCases

James v Gina Shoes EAT 2012• Comments included “old dogs and new tricks” remark.

Roberts v Cash Zone ET 2013• Miss Roberts was referred to by her supervisor as a

‘kid’, a ‘stroppy kid’ and a ‘stroppy little teenager’.

Nolan v CD Bramhall (Evans Halshaw) ET 2013• Car salesman, aged 64, selected for redundancy,

subjected to banter. The ‘only joking’ defence!

Case law updateFacebook, Twitter and tweets!

Crisp v Apple Retail ET 2011• Facebook comments about products = gross misconduct.

Smith v Trafford Housing High Court 2012• Facebook thoughts/comments on gay marriage not gross

misconduct

Flexman v BG International ET 2012• Comments on “LinkedIn”; constructive dismissal claim

upheld.

Case law update Vaughan v London Borough of Lewisham EAT 2013• Evidence obtained by “covert” recordings

Davies v Sandwell MBC Court of Appeal 2013• Conduct dismissals and final warnings. Was final

warning “reasonable”?

Unison v London Borough of Barnet . Watford ET 2013• Failing to provide Union with information on Agency

Workers in redundancy and Tupe consultation

Case law update USDAW v Ethel Austin Ltd and another case

(Woolworths!) EAT 2013 (Decision appealed)• Definition of “an establishment” for redundancy

consultation purposes

Sood Enterprises v Healy EAT 2013• Carry over of holidays on long term sickness

Neil v Freightliner Ltd. ET 2013• Overtime and shift premia to be included in holiday pay

Parkwood Leisure v Alemo-Herron ECJ 2013• TUPE and collective agreements

Employment Law Training Ltd

Practical Workshops and advice for Employers on all Employment Topics

tel: 01789 470 700email: derek@eltraining.co.ukweb: www.eltraining.co.uk

We now sell employment documents:

www.employmentlawtemplates.co.uk