EMPLOYMENT LAW UPDATE

By Stuart Chamberlain, Croner

What we’ll be covering• Legislation update (since Spring 2014)

• Case law update – a selection

• Tribunal fees

• Looking ahead

LEGISLATION UPDATE

Legislation updateContinuing changes to tribunal process and procedure:

• Early conciliation by Acas

• Abolition of discrimination questionnaires

• Financial penalties for employers losing tribunal claims – any examples?

• Changes to fees – reclassified as ‘Type B’

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Legislation updateExtension of the right to request flexible working:

• Now all employees with 26 weeks’ continuous service have the right to apply

• Statutory procedure replaced by requirement to deal with requests in a ‘reasonable manner’

• Acas Guidance and Code of Practice

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Legislation updateSmall Business, Enterprise & Employment Act:

• Ban on exclusivity clauses in zero hours contracts –applies to contracts where hourly rate is under £20 and not guaranteed a certain level of weekly income.

• Enforcement of tribunal awards

• Public sector exit payments – repayment of certain exit payments if individual re-employed in public sector within prescribed period

• Whistleblowing

• Guidance for Employers and Code of Practice

• Prescribed Persons Guidance

Legislation updateChanges to Acas Code – Right of accompaniment:

• What was the problem? (Toal v GB Oils)

• Section 10 of the Employee Relations Act 1999

• Right of accompaniment now conditional on worker/employee making a ‘reasonable request’ – chosen from one of statutory categories

• Any risk to employers?

• Companions outside the statutory framework?

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Legislation updateNew family friendly rights from 5 April 2015:

• Introduction of Shared Parental Leave for parents of children due to be born or placed for adoption on or after 5 April 2015 – issues?

• Adoption Leave becomes a day one right (previously 26 weeks’ service)

• SAP enhanced to 90 % of adopter’s salary for first six weeks

• Those fostering a child under ‘Fostering for Adoption’ scheme entitled to adoption leave

• Intended parents in surrogacy arrangement entitled to statutory leave and pay

• Right to unpaid parental leave extended to parents of children five to 18 years

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Legislation updateFit to work service:

• GPs and employers able to refer eligible employees to FFW for free occupational health assessment

• How is eligibility defined?

• The Return to Work Plan

• Tax Exemption for employers

• What changes should employers make to present practices?

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RECENT CASE LAW – A SELECTION

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Recent case law – a selectionDiscrimination:

• Jessemy v Rowstock Ltd ( CA) - post-employment victimisation prohibited by Equality Act 2010

• Hainsworth V MOD (EAT) - associative discrimination does not apply to the duty to make reasonable adjustments

• Kaltoffv Billund(CJEU) - obesity in itself not a disability

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Recent case law – a selectionWorking time – annual leave:

• Bear v Scotland (CJEU) - calculation of annual leave, overtime payments to be included

• Implications for employers

• Two years’ cap on backdated claims

• The Sash Window Workshop Ltd v King (EAT) - carry over of holiday for reasons not related to sickness absence

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Recent case law – a selectionRedundancy and maternity:

• In a redundancy situation Regulation 10 of the Maternity & Parental Leave Regs. 1999 requires that a woman on maternity leave ‘goes to the front of the queue’ for suitable alternative employment

• This duty arises when employer aware that woman’s role is redundant or potentially redundant

• A failure to offer a suitable vacancy renders the dismissal of a woman on maternity leave automatically unfair (Sefton Borough Council v Wainwright)

• BUT - whether or not direct discrimination will depend on the reason why the woman was not offered vacancy

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Recent case law – a selectionTUPE:

• Continued analysis of how to define a Service Provision Change (SPC)

• Problems of post-transfer harmonisation – Hazel v The Manchester College - and the position post-January 2014?

• TUPE & disciplinary appeal (Salmon v Castlebeck Care (Teedale) Ltd) (EAT)

• Result of successful appeal meant employee transferred

• Highlights the necessity of adequate due diligence by transferee

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Tribunal fees• Massive decrease in applications to ETs and EAT

• Legal challenges by Unison dismissed – for the time being!

• Further developments depend on the outcome of the election?

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Looking ahead• 2010 -2015 reforms represent major change in approach to

employment law: employer- friendly?

• Outcome of the general election on 5 May will decide future complexion & development of employment law in the UK

• And the Scottish dimension?

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QUESTIONS?

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