Employment Law in 2012: where are we? Stuart Chamberlain Croner
Employment Law policy of Coalition Government Act on bankers’ bonuses Cut red tape & reduce regulatory burden– “The Red Tape Challenge” Review workplace law End “gold- plating” of EU law Cap on immigration
Immediate action Delayed extension of right to flexible working Agency Workers Regs. into force (Oct.2011 – to be reviewed in 2012) Moratorium on new legislation affecting “micro” (ie fewer than 10 employees) from April 2011 Launched Employers Charter
Consultations The Employment Law Review – throughout life of Parliament – with annual updates Resolving Workplace Disputes (Jan. – April 2011)– reform of unfair dismissal regime and tribunal reform; financial penalties for employers Modern Workplaces ( May – August 2011)- flexible parental leave; flexible working; equal pay & WTR
Consultations cont. BIS – dismissal with no risk of tribunal for micro businesses “Call for evidence” on TUPE and collective redundancies and on dismissal procedures (2012) Simplifying compromise agreements Removal of third-party harassment provisions – an “unworkable requirement”
Reform of unfair dismissal regime Increase in awards (Feb. 2012) Increase in qualifying period (1 to 2 years) Implications?
Tribunal Reform Increase in deposit (£500 to £1,000) Costs against unreasonable and vexatious parties ( up to £20,000) Witness statements taken as read Employment judge to sit alone in unfair dismissal cases
What’s further in store in 2012? Changes to compromise agreements: name and wording “Protected conversations”: poor performance & retirement without risk of tribunal• ACAS conciliation
What’s further in store in 2012? Introduction of “rapid resolution scheme” eg holiday pay Review of paperwork obligations of Agency Workers Regulations. Reduction of minimum 90-day collective redundancy consultation period? Review of TUPE- possibility of change?
What’s further in store in 2012? Changes to Working Time Regs. – result of European Court decisions Introduction of fees for tribunal claims – problems? Fundamental Review of tribunal procedures under Mr Justice Underhill – effect? Change to Public Interest Disclosure Act
What’s further in store in 2012? Financial penalties on employers who breach employment rights – penalty payable directly to Treasury Result of “Call for Evidence” on dismissal processes - “compensated no-fault dismissals” for micro-businesses and Acas Code of Practice on Discipline and Grievance
1. Unfair Dismissal Misconduct & suspension – not to be a “knee-jerk response” (Crawford v Suffolk Mental Health NHS T ) And police involvement? EDT of summary constructive dismissal? (Horwood v Lincolnshire CC)
2. Redundancy Suitable alternative employment – the “correct test” (subjective!) (Readman v Devon Primary Care T) Expiry of fixed-term contracts – redundancies? Collective consultation? (University of Stirling v UCU) When is obligation to consult triggered? A- G’s Opinion in USA v Nolan
3. TUPE: Service Provision Change- the test “Activities” before and after the transfer Was employee assigned to transferred group of workers? Employees should be organised re. particular client Post – transfer “fragmentation” – TUPE 2006 will not apply
3. TUPE: Regulation 4(9) - take care! Substantial changes in working conditions to material detriment – a subjective test Tapere  & Abellio London v Musse - both cases involved change of location and mobility clauseThe lessons?
Finally, some words about socialmedia and the law