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Thames Valley HR Forum

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Blake Lapthorn solicitors HR Forum held on 2 February 2010

Blake Lapthorn solicitors HR Forum held on 2 February 2010

Published in: Career, Business

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  • 1. Thames Valley HR forum Review of 2009 Looking forward to 2010
  • 2. Review of 2009 – the highlights Alexandra Robinson
  • 3. Dismissals - general Date of termination – Where dismissal is communicated by letter, the date of termination will generally be the date on which the letter is read by the employee Gisda Cyf v Barratt
  • 4. Redundancy dismissals Time limits – A redundant employee may have more than three months to bring a claim for unfair dismissal Cambridge and Peterborough Foundation NHS Trust v Crouchman Criteria for selection – “Length of service” is capable of being justified as criteria for selection Rolls Royce plc v Unite the Union – Selection criteria must not only be objective, but must also be objectively assessed Howard v Siemens Energy Services
  • 5. Dismissals - compensation Notice payments – In a case of constructive dismissal, earnings from new employment during the notional notice period must be taken into account when assessing compensation Stuart Peters Ltd v Bell "Stigma" compensation – An employee was entitled to claim compensation from his former employer for the fact that third parties would not employ him because he had brought a discrimination claim Chagger v Abbey National plc
  • 6. Discrimination - age Default retirement age – Employers can continue to rely on the default retirement age for the time being Heyday
  • 7. Discrimination - religion and belief Climate Change – Belief in climate change and the need to act in the interests of the environment are capable of amounting to a philosophical belief and therefore capable of protection Grainger plc and ors v Nicholson Psychic belief – Belief that psychics can help solve criminal investigations is also capable of protection Power v Greater Manchester Police
  • 8. Discrimination – civil partnerships Civil partnerships – A Christian registrar did not suffer discrimination when threatened with dismissal for refusing to register same-sex civil partnerships Ladele v Islington LBC – A Christian relationship counsellor did not suffer discrimination when dismissed for not counselling same-sex couples about their sex lives McFarlane v Relate Avon Ltd
  • 9. Discrimination Harassment – Harassment "on the grounds of religion or belief" covers conduct on the ground of another person's religion or belief Saini v All Saints Haque Centre Work permits – Refusal to consider job applications from candidates requiring a work permit constituted unlawful indirect race discrimination Osborne Clarke Services v Purohit
  • 10. Discrimination - sexual orientation “Sexual orientation” – An employee who was known by his colleagues to be heterosexual was protected from homophobic harassment English v Thomas Sanderson Blinds Ltd
  • 11. Discrimination - disability Discrimination by association – The Disability Discrimination Act can be interpreted as prohibiting direct discrimination or harassment by association with a disabled person Coleman v EBR Attridge Law LLP Disability related discrimination – Lewisham v Malcolm applied by the EAT Child Support Agency v Truman; Stockton-on-Tees BC v Aylott
  • 12. Discrimination - compensation limits Vento guidelines increased – lower band: £5,000 increased to £6,000 – middle band: £15,000 increased to £18,000 – upper band: £25,000 increased to £30,000
  • 13. Holiday entitlement Holiday and sickness absence – A claim for backdated holiday pay can be brought by using the concept of a series of “unlawful deductions from wages” Stringer Sickness during holiday – An employee was entitled to a replacement holiday period as he was unable to take holiday during a period of illness Pereda v Madrid Movilidad SA
  • 14. Refused holiday leave lost – An employee lost his entitlement to leave where his request was refused shortly before the end of the holiday year Lyons v Mitie Security Holiday pay on termination – Pay in lieu of untaken holiday on termination of employment is not necessarily confined to the current holiday year Wang v Beijing Ton Ren Tang (UK) Ltd
  • 15. Annual leave entitlement - Statutory annual leave under the Working Time Regulations 1998 increased in April last year from 4.8 weeks to 5.6 weeks (with a maximum statutory entitlement of 28 days)
  • 16. Disciplinary and grievance procedures Abolition of Statutory Procedures ACAS Code of Practice – all change?
  • 17. Family friendly provisions Right to request flexible working – Extended to parents of children up to and including 16 from April 2009
  • 18. Looking forward to 2010 Debbie Sadler
  • 19. Equality Bill Why? – Manifesto commitment – Harmonise discrimination law – Strengthen discrimination law When? – Royal Assent April 2010 – Effective from October 2010 Equality and Human Rights Commission - guidance
  • 20. Equality Bill Protected Characteristics – age – disability – gender reassignment – marriage and civil partnership – pregnancy and maternity – race – religion or belief – sex – sexual orientation
  • 21. Equality Bill Direct Discrimination – “because of” not “on the grounds of” associative discrimination perceptive discrimination dual discrimination NB: not marriage and civil partnership (or maternity and pregnancy for dual discrimination
  • 22. Equality Bill Indirect discrimination – disability discrimination – gender reassignment Harassment – third party harassment Victimisation – removes need for absolute comparator
  • 23. Equality Bill Disability discrimination – Normal day to day activities eight functions removed – Associated discrimination – “Discrimination arising from disability” – Indirect discrimination
  • 24. Equality Bill Equal Pay and Positive Action – “genuine Material Factor” defence – secrecy clauses – publication of pay differences Positive action – Recruitment and promotion
  • 25. Additional Paternity Leave and Pay Current right – 2 weeks paid leave – if employed for 26+ weeks – within 56 days of birth From April 2010 – up to 26 weeks within first year – From 20 weeks after birth – 13 weeks paid if mother returns to work Applies to births or adoptions after 3 April 2011
  • 26. The Safeguarding Vulnerable Groups Act 2006 Independent Safeguarding Authority (ISA) – central vetting and barring scheme – brings previous lists under one agency – decisions re who works with children and vulnerable adults – database to be regularly monitored and updated
  • 27. The Safeguarding Vulnerable Groups Act 2006 Regulated activities – anyone working with children or vulnerable adults on a frequent or intensive basis e.g. healthcare, teaching, training, care – frequent – once a week or more – intensive – four or more days in one month or overnight
  • 28. The Safeguarding Vulnerable Groups Act 2006 Commit criminal offence if – permit a barred or unregistered worker to engage in regulated activity where they know or have reason to believe that the person is barred/unregistered – fail to provide information as part of duty to refer – fail to check the worker is ISA registered Obligation falls on regulated activity providers, employment businesses etc.
  • 29. The Safeguarding Vulnerable Groups Act 2006 Controlled activity – frequent and intensive activity ancillary to healthcare in hospitals etc – end users will be able to engage someone barred from regulated activity in certain circumstances
  • 30. The Safeguarding Vulnerable Groups Act 2006 Duty to refer where individual has ceased work because harmed child/vulnerable adult or placed at risk of harm
  • 31. Tribunal Compensation limits Changes 1 February each year Employment Rights (Revised Limits) Order 2009 – from £66,200 to £65,300 Weeks pay – unfair dismissal basic award – statutory redundancy calculation – £380 per week (October 09)