Review of the year and what to look forward to in 2011 Thames Valley HR forum February 2011
Review of 2010 Alexandra Robinson senior email@example.com
Unfair dismissal - misconduct The importance of a reasonable investigation – Salford Royal NHS Foundation Trust v Roldan CA – conflict of evidence – City of Edinburgh Council v Dickson EAT – employee’s explanation not taken seriously Framing the allegation correctly – Celebi v Scolarest Compass Group UK EAT – failure to state that the employee was accused of theft Holding the hearing in the absence of the employee – Bashir v Sheffield Teaching Hospital NHS Foundation Trust EAT – unreasonable and obstructive employees
Unfair dismissal - misconduct Effective date of dismissal – Gisda Cyf v Barratt, SC – dismissal takes effect on the date the letter is read Mitigation – Kelly v University of Southampton EAT – applying for posts with the same employer Overlapping grievance and disciplinary procedures – Samuel Smith Old Brewery v Marshall EAT – disciplinary hearing can take place before grievance procedure completed
Unfair dismissal - redundancy Scoring on the basis of objective criteria – Pinewood Repro Ltd v Page EAT – failure to explain scoring Bumping – Fulcrum Pharma Ltd v Bonassera EAT – failure to consider bumping into a more junior role Employees on maternity leave – Simpson v Endsleigh Insurance Services Ltd EAT – is there a suitable alternative vacancy?
Constructive dismissal The range of reasonable responses test is not relevant to the issue of whether there has been a fundamental breach of contract A fundamental breach cannot be “cured” – Buckland v Bournemouth University Higher Education Corporation CA
Contractual terms Bonuses – Rutherford v Seymour Pierce Ltd – is eligibility for a bonus dependant on still being employed? – Humphreys v Norilsk Nickel International (UK) Ltd – discretion to pay bonus must not be exercised irrationally or perversely Right to vary contracts – Bateman and ors v Asda Stores Ltd EAT – wording in handbook gave employer right to vary contractual terms Holiday – Lyons v Mitie Security Ltd EAT – use it or lose it?
Whistleblowing Protection from detriment provisions are not limited to disclosures made during employment with the present employer – BP Plc v Elstone EAT
Discrimination Age – Seldon v Clarks and Wright CA – objective justification Religion or belief – Ladele v London Borough of Islington CA – dismissal was not discriminatory – Amachree v Wandsworth Borough Council ET – imposing religious beliefs on a third party – Haye v London Borough of Lewisham ET Pregnancy and Sex – Nixon v Coates Solicitors EAT – office gossip amounted to discrimination
Discrimination Disability – reasonable adjustments – Secretary of State for Work and Pensions v Wilson EAT – working from home – Hinsley v Chief Constable of West Mercia Constabulary EAT – reinstatement – Chief Constable of South Yorkshire v Jelic CA – job swap Compensation – Chagger v Abbey National plc CA – stigma damages
Looking forward: issues on the horizon Jim Whiter Head of Oxford Employment team firstname.lastname@example.org
Looking forward Extension of right to request flexible working Additional Paternity Leave Regulations 2010 Agency Worker Regulations 2010 Bribery Act 2010 Default Retirement Age : A reminder New Compensation Limits
Extension of Right to Request Flexible Working Currently available to parents of children under 17 and disabled children under 18 and carers of certain adults From April 2011 the right is extended to parents of children under 18. Estimated that it will benefit a further 288,000 employees The Government is consulting on extending the right to all employees
Additional Paternity Leave Regulations 2010Births father of the baby and/or the husband or partner of woman due to give birth on or after 3 April 2011 responsibility for baby’s upbringing 26 weeks’ service by qualifying week (15th week before EWC) taking time off to care for the baby up to 26 weeks’ leave but must be taken between 20 and 52 weeks after the child is born mother must have returned to work
Additional Paternity Leave RegulationsAdoptions spouse or partner of child’s co-adopter matched with child for adoption on or after 3 April responsibility for child’s upbringing 26 weeks’ service by qualifying week (the later of week official notification received or week employee had 26 weeks’ service) taking time off to care for a child up to 26 weeks’ leave to be taken between 20 and 52 weeks after child starts living with adopter co-adopter must have returned to work
Additional Paternity Leave Regulations : Procedure Employees required to give 8 weeks’ written notice before start of leave HMRC forms available but employer can create it’s own Must include declaration that the purpose of the leave is to care for the child; date of birth or placement; employee is the father of the child or husband/partner of child’s mother or co-adopter; they have or expect to have responsibility for the upbringing of the child. Child’s mother or co-adopter must also provide declaration (including personal details; that they have notified their intention to return to work to their employer and the date; date SMP or SAP period started; that the employee is their spouse, or partner and was jointly matched for adoption) Employer can request additional information within 28 days of receiving the notification (eg birth certificate or details of mother’s employer)
Additional Paternity Leave : Rights Fathers and partners who take APL have similar rights to those enjoyed by women on ML (eg benefit of terms and conditions (but not remuneration); not to be subjected to detriment or dismissal for taking APL; KIT days) Additional Statutory Paternity Pay – Lower of £128.73 (from April) or 90% of average weekly earnings Enhanced pay?
“Flexible” Maternity and Paternity Leave? Proposals for “shared parental leave” from 2015 – Government consultation is due to be published Parents to be able to take leave at the same time? Time off to be taken in separate blocks rather than all in one go?
Agency Workers Regulations 2010 Implement the EU Temporary Agency Workers Directive 1 October 2011 Giving agency workers the right to equal treatment After 12 weeks on an assignment
Who is an “Agency Worker”? someone supplied by a temporary work agency; to work temporarily for and under the supervision and direction of a hirer; and has a contract of employment with the agency or a contract to perform work and services personally for the agency. Does not include the genuinely self-employed and workers on “managed service contracts” (eg IT support or catering)
Rights of Agency Workers Right to the same “basic working and employment conditions” as a comparable employee of the hirer after twelve weeks on an assignment The comparable employee must work for the hirer doing the same or broadly similar work
Basic Working and Employment Conditions Pay – basic pay and entitlements linked to the work undertaken while on assignment (e.g holiday pay; overtime; shift allowances; unsocial hours premiums; individual performance bonuses and vouchers) – does not include share participation; profit sharing schemes; contractual sick pay or redundancy pay; occupational pension; car allowances; health insurance; or bonus based on business performance. Working Time – duration; length of night work; rest periods and breaks; holiday entitlement
Miscellaneous Rights of Agency Workers Right to be given notice of hirer’s permanent vacancies from day one Access to hirer’s onsite facilities (e.g canteen, childcare facilities and transport services) from day one Rights for pregnant workers and new mothers after 12 weeks (eg paid time off for antenatal appointments)
Anti Avoidance Right to equal treatment in pay and conditions depends on twelve weeks continuous assignment Eleven week assignment is possible but beware successive assignments Continuity will only be broken if break of six weeks or more during or between assignments or if worker given a new role with the same hirer comprising “substantively different” duties or work
Failure to Comply Agency worker can make claim to ET within three months of infringement or detriment ET can order payment of compensation, make declarations and recommend action be taken “Just and equitable” compensation taking account of the nature of the breach; financial loss suffered and expenses incurred. Minimum compensation of two weeks’ pay Additional compensation of up to £5,000 if avoidance measures are proved
Issues for Hirers “Temp to perm” fees can still be charged New administrative burden to assess whether Regulations apply; whether there is a comparator; and if so, providing information to the agency Result in higher cost of agency workers? Risk of potential claims (but may also reduce the risk of agency workers asserting that they are employees of the hirer)
Issues for Agencies Need to revise contractual terms dealing with provision of comparator information and recognising the need for co-operation with the hirer More “turnover” of workers if increased use of assignments for less than twelve weeks? Hirers may require indemnities in relation to liabilities under the Regulations and confidentiality and non- poach undertakings
The Bribery Act 2010 April 2011 “Bribe” is a financial or other advantage used to induce improper performance of a public or business function or activity Criminal offence to offer, promise or give a bribe; to request, agree to receive or accept a bribe; to bribe a foreign public official Criminal offence for a business to fail to prevent bribery on its behalf unless it can show it had “adequate procedures” in place to prevent such conduct Imprisonment or unlimited fine Employers should provide guidance on accepting gifts and hospitality; review policies and procedures; and make clear that it will be considered an act of gross misconduct
Removal of Default Retirement Age: A Reminder Response to consultation now published No new notices of intended retirement may be issued after 6 April 2011 Compulsory retirements notified before 6 April to take effect before 1 October 2011 are valid Compulsory retirements notified before 6 April 2011 to take effect after 1 October 2011 will not be valid Compulsory retirement ages will need to be objectively justified (pursuit of legitimate aim in a proportionate manner) ACAS Guidance for employers
New Compensation Limits From today (1 February 2011) The limit on a week’s pay increased to £400 (from £380). Relevant for SRP and basic award calculation in unfair dismissal Maximum compensatory award for unfair dismissal is £68,400 (from £65,300) Note that unlimited compensation continues to apply to discrimination claims and certain dismissals (eg if for whistle blowing or H&S reasons)
Review of the year and what to look forward to in 2011 Thames Valley HR forum February 2011