Stuart Chamberlain Employment Law - PPMA Conference 2010
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Tuesday - Stuart Chamberlain - Employment Law skills workshop

Tuesday - Stuart Chamberlain - Employment Law skills workshop

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Stuart Chamberlain Employment Law - PPMA Conference 2010 Presentation Transcript

  • 1. PPMA Annual Conference 2010: Employment Law Update Stuart Chamberlain
  • 2.
    • PRIZE DRAW FREE annual subscription to Croner- i Human Resources for Local Government worth £1195
    • A complete online information service providing instant access to all HR legislation and best practice affecting those working within local government.
  • 3.
    • FREE Croner’s Managing Redundancy
  • 4. Agenda
    • Working Time
    • Implied duty of trust and confidence
    • Religion and belief
    • Right to legal representation at internal hearings
    • TUPE 2006
    • Legislation for 2010 and 2011
  • 5.
    • Working Time
  • 6. Holiday entitlement and sickness absence
    • Summary of principles from ECJ in Stringer and Pereda:
    • Employees (workers) accrue holiday pay while on sickness absence
    • Entitlement to full annual leave on return from sickness absence and pay in lieu on termination
    • Holiday can be carried over to next holiday year if employee unable to take it in the current leave year because of sickness
  • 7. Holiday entitlement and sickness absence
    • ECJ decisions create potential problems:
    • UK’s Working Time Regulations (WTR) 1998 do not allow such carry over
    • Only public sector employees/workers can potentially enforce the ECJ’s rulings – by the doctrine of direct effect
  • 8. What can the employer do?
    • Allow him/her to take the holiday accrued during sickness absence
    • Pay them in lieu – but this can only be done on termination of employment. A temptation for employer to dismiss those on long-term sickness absence?
  • 9. What can the employer do?
    • Ask (during the absence) if employee willing to take holiday- Advantages? – but employee cannot be forced to take leave
    • Hope that there will be necessary amendments to WTR in the near future ?
  • 10.
    • Religion and belief
  • 11. Religion and belief
    • The key to the 2003 Regulations:
    • What beliefs are protected?
    • What actions are prohibited?
  • 12. Religion and belief
    • What beliefs are protected?
    • Wide definition of “belief: “any religious or…philosophical belief”
    • ETs have to have regard to EU case law (i.e. ECHR case law)
      • Grainger v Nicholson – EAT guidelines for determining philosophical belief
      • Power v Greater Manchester Police (ET)
  • 13. Religion and belief
    • What actions are prohibited ? Issue explored in following:
    • L B of Islington v Ladele (CA)
    • Chandol v Liverpool City Council (EAT)
    • Eweida v British Airways plc (CA)
    • Implications for employers?
  • 14.
    • Right to legal representation at internal hearings
  • 15. Right to legal representation at internal hearings
    • Statutory and contractual position
    • Kulkarni and R(G) v Governors of X School :
    • Article 6 of the ECHR requires that a claimant is entitled to be afforded the opportunity to be legally represented at a disciplinary or hearing where this was determinative of the right to practise a profession.
    • Implications for the public sector?
  • 16.
    • Redundancy
  • 17. Redundancy
    • The statutory obligation to consult about ways to avoid dismissals includes an obligation to consult about reasons for the closure ( UK Coal Mining Ltd v NUM )
    • And not confined to commercial decisions; it applies also to public policy (i.e. to the public sector) ( USA v Nolan)
  • 18.
    • TUPE
  • 19. TUPE: Information and Consultation
    • The link between the duty to inform and the duty to consult in reg.13?
        • Not necessarily any distinction
        • A “responsible” employer will not limit consultation to “measures ” envisaged
    • ( Cable Realisations Ltd v GMB Northern )
  • 20. Who are the “affected employees”?
    • Those who will be or may be transferred
    • Those whose jobs are in jeopardy by reason of the proposed transfer
    • Those who have internal job applications pending at the time of the transfer
    • BUT not the whole of the workforce or those who may apply to transferred part sometime in the future
    • Unison v Somerset County Council
  • 21. TUPE: Transfer of collective agreement
    • Previous EAT decisions (eg Whent v Cartledge in 1997) held that private sector employer/contractor bound by future NJC pay rises
    • ECJ in Werhof [2006] distinguished between “dynamic” and “static” interpretation of the Directive
    • CA in Parkwood Leisure Ltd v Alemo-Herron : transferee only bound by a collective agreement in force at the time of the transfer but NOT where agreement reached after the transfer
    • Implications?
  • 22. Post-transfer changes to terms and conditions
    • Regulation 4(9) – “material detriment”
    • Tapere v South London & Maudsley NHS Trust
      • Employer sought to rely on mobility clause, but could not use device of “substantial equivalence”
      • Impact of detriment must be considered from employee’s viewpoint – not objective “balancing act”
  • 23.
    • LEGISLATIVE DEVELOPMENTS 2010 and 2011
  • 24. 2010 Legislation
    • Employment compensation limits from 1 February 2010
    • “ Fit” not “sick” notes (from 6 April)
      • Object of the scheme
      • Summary of main features
      • Potential problems?
  • 25. 2010 Legislation (continued)
    • New statutory right to request time to train – 6 April 2010 for employers with 250 or more employees. Similar procedure to that for requesting flexible working
    • Review of default retirement age – change from 65?
    • New arrangements for Vetting and Barring Scheme
  • 26. Legislation 2010: The Equality Bill Key features:
    • Simplification of the law - single piece of legislation
    • Harmonisation of definitions – “protected characteristics”
    • Changes to DDA in light of Malcolm and Attridge
    • Greater transparency
  • 27. Legislation 2010: The Equality Bill Key features:
    • Extend positive action
    • Further duties on public sector
    • Stronger enforcement by ET
  • 28. Further duties on the public sector
    • New “socio-economic duty” to reduce inequality
    • To consider equality when deciding for purchasing or outsourcing
  • 29. The Equality Bill – the next steps
    • Royal Assent in spring 2010
    • Bill to become law in October 2010
    • EHRC Codes of Practice (Sept2010; March 2011)
    • So, is this legislation a “mere tidying up exercise” or “new social order”?
  • 30. Legislation 2011 – to think about now
    • Additional Paternity Leave and Pay – from 3 April 2011. Up to 6 months’ Paternity Leave (3 months to be paid) may be transferred to partner
    • Agency Workers Regulations 2010– certain employment rights after 12 weeks’ continuous service
  • 31.
    • Questions
  • 32.
    • PRIZE DRAW FREE annual subscription to Croner- i Human Resources for Local Government worth £1195
    • A complete online information service providing instant access to all HR legislation and best practice affecting those working within local government.
  • 33.
    • Thank you for your time.
    • Your feedback is appreciated.