3. Harassment related to a protected
characteristic
• unwanted conduct “related to” a protected characteristic:
– encompasses claims based on association or perception
• Third party harassment – the “three strikes” rule:
– employer liable for repeated discriminatory harassment
of their staff where inadequate steps have been taken
to prevent it
– currently, Gov’t consultation to revoke this provision
• note – even if this change is adopted, may not put
an end to claims linked to third party harassment...
4. Duty to make reasonable adjustments
• Cordell v FCO, EAT 2011
– profoundly deaf employee seeking English lipspeaker
support in an overseas diplomatic post at a cost of
£250,000 p.a.
– EAT held that the employer’s failure to make
adjustments was not unreasonable due to the high
costs involved
– whilst cost is not decisive in deciding whether an
adjustment is reasonable, this does not mean that it is
not relevant
– C’s treatment was not because of her disability, but due
to the costs of the necessary adjustments
5. Duty to make reasonable adjustments
• Lancaster v TBWA Manchester, EAT, 2011
– employee with panic disorder and social anxiety
disorder
– should subjective redundancy selection criteria relating
to communication skills be removed?
– EAT held the employer did not breach its duty to make
reasonable adjustments by failing to adjust its
redundancy selection criteria
– any such adjustment would not have prevented that
employee from being selected in any event
6. Redundancies: is a reduction in
headcount required?
• Packman t/a Packman Lucas Associates v Fauchon
– claimant (Fauchon) provided book-keeping services
– diminishing need for book-keeping services due to IT
software
– claimant refuses to work reduced hours and is
dismissed
– ET finds unfair dismissal and Claimant entitled to
redundancy pay
– EAT upholds decision – focus should be on employer’s
requirement for employees generally to carry out work
of a particular kind – not a reduction in headcount
7. Consultation on proposed changes to
collective redundancy rules
• June 2012 – BIS announced a consultation on collective
redundancies with a view to “revitalising” the rules on
collective consultation
• consultation closes on 19 September 2012
• three objectives:
– 90 day minimum consultation period will be reduced to
either 30 days/45 days for 100 or more employees
– introduction of non-statutory code of practice
– improved government guidance
8. Enterprise and Regulatory Reform Bill
2012-13
• introduced 23 May 2012
• Part 2 concerns employment law:
– pre-claim ACAS conciliation – mandatory new procedure
– unfair dismissal compensatory award: power to vary
statutory cap
– appointment of Legal Officers
– Employment Appeal Tribunal judges to sit alone
– settlement agreements
– financial penalties for losing Respondents
– whistleblowing must be done in public interest
– indexation of a week’s pay
9. Enterprise and Regulatory Reform Bill
2012-13 (cont/d)
• Part 5 addresses the “reduction of legislative burdens”
including from an employment perspective:-
– curbing the duties and powers of the Equality and
Human Rights Commission
– giving the government the power to include sunset and
review clauses in secondary legislation
10. Enterprise and Regulatory Reform Bill
2012-13 (cont/d)
• 20 June 2012 – government announced further proposals on
director’s remuneration including:
– a binding vote on future remuneration policy at least every 3
years
– shareholder approval will be required if the directors wish to
change the policy
– details of a company’s approach to exit payments to be
included in the future remuneration policy and therefore
subject to the binding vote
– when a director leaves, the Company will be required to
announce the amount the director received
