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Slides from the Presentation delivered by Schofield Sweeney on 2nd November 2011.

Slides from the Presentation delivered by Schofield Sweeney on 2nd November 2011.

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Schofield & Sweeney CIPD Presentation Schofield & Sweeney CIPD Presentation Presentation Transcript

  • EMPLOYMENT LAW UPDATE 2011 Presented by ALEX CLEMENTS and JAMES AUSTIN
  • Headache 1: Issue
    • How should the Widget Company manage Richard?
  • Headache 1: Relevant Law
    • Default Retirement Age of 65 introduced in 2006
    • ‘ Heyday’ challenge by Age Concern
    • Reviewed in 2010 to ‘reflect the change in economic circumstances’
    • Repealed on 6 April 2011
    • Transitional Provisions end 30 September 2011
    View slide
  • Headache 1: Relevant Law
    • The last date where the Default Retirement Age can operate is 5 October 2012
    • Notice given on 5 April 2011 specifying intended retirement date of 5 April 2012
    • Maximum six month extension agreed with new retirement date of 5 October 2012
    • No longer a ‘potentially fair’ dismissal
    View slide
  • Headache 1: Relevant Law?
    • End of compulsory retirement?
    • “ These changes do not mean that individuals can no longer retire at 65 – simply that the timing of retirement becomes a matter of choice rather than compulsion”
  • Headache 1: Relevant Law
    • Workforce Planning
    • Concerns that even discussions about retirement are discriminatory
    • Without prejudice conversations?
    • Consequences of not addressing performance & capability issues with older workers
    • Disgruntled younger employees
  • Headache 1: Relevant Law
    • ACAS Guidance
    • Working without the default retirement age
    • Hold workplace discussions regularly - build into appraisal system
    • Ask open questions about employees plans for short, medium and long term future
  • Headache 1: Relevant Law
    • Employer Justified Retirement Age
    • Employers cannot retire employees at a set age unless the age can be objectively justified – SOSR Dismissal
    • “ Proportional means of achieving a legitimate aim”
    • Old regime justification included exceptional levels of mental or physical fitness
    • Only employees
    • What is a legitimate aim?
      • Prigge v Lufthansa
  • Headache 1: Relevant Law
    • Legitimate Aims:
    • Workforce planning
    • Protecting dignity of older employees – avoiding performance management and fitness to work issues
    • Protecting against incompetence
    • Having an age balanced workforce - promoting the exchange of experience and innovation between ages
  • Headache 1: Relevant Law
    • Capability is a potentially fair reason for dismissal
      • ‘ relates to the capability or qualifications of the employee for performing the work of the kind he was employed to do.’
  • Headache 1: Conclusion
    • No default retirement age
    • Unlikely to be a legitimate aim for imposing retirement
    • Hold early and regular discussions
    • Don’t make assumptions
    • Use capability procedure
  • Headache 2: Issue
    • Can Coalition impose the salary reduction on Ken?
  • Headache 2: Relevant Law
    • Employer’s can amend terms and conditions through agreement
    • If there is no agreement employer’s can dismiss employees and offer new contracts of employment
    • Dismissal could be for “some other substantial reason”
    • S.98 (4) Employment Rights Act 1996:
      • Taking into account the size and administrative resources of the employer did it act reasonably in treating it as sufficient reason for dismsisal
      • Determined in accordance with equity and the substantial merits of the case
  • Headache 2: Relevant Law
    • Garside and Laycock v Booth
      • B had been employed by G for 7 years
      • In 2009 due to a drop in sales and profits G asked employees to take a 5% pay cut
      • G consulted staff then issued a voting paper
      • 2 employees refused change
      • G terminated contracts and issued new ones
      • B appealed unsuccessfully
  • Headache 2: Relevant Law
    • Garside and Laycock v Booth
      • B claimed unfair dismissal
      • Tribunal found dismissal unfair:
        • G hadn’t been in a desperate financial position and business reasons were not “cogent”
        • B’s refusal of change was reasonable
        • G made poor attempt at consultation
      • G appealed
  • Headache 2: Relevant Law
    • Garside and Laycock v Booth
      • EAT overturned decision
        • Change doesn’t need to be crucial to save business
        • Question of reasonableness of employer’s decision
        • Did pay cut apply to all, including management?
      • Where overwhelming majority of workforce accept change dismissal is likely to be fair
  • Headache 2: Issue
    • Can Coalition impose the new contract on Vince? If so, does it still have to pay the £1,000?
  • Headache 2: Relevant Law
    • Slade v TNT
      • TNT’s operating profits fell from £68.5m to £11.9m
      • TNT offered to buy out bonus
      • TNT warned if offer declined contracts would be terminated and offers of re-engagement made
      • S claimed that offer of re-engagement must include buy out in order for TNT to have acted reasonably
      • Tribunal found SOSR
      • EAT upheld decision – no duty to offer buy out
  • Headache 2: Conclusion
    • Provided it follows the correct procedure Coalition should be able to:
      • impose salary reduction on Ken
      • remove bonus from Vince and his colleagues
    • Coalition won’t have to pay Vince or the others £1,000
  • Headache 3: Issue
    • What should Fortuna Fashions do for Rachel?
  • Headache 3: Relevant Law
    • Obligation to make reasonable adjustments remains under the Equality Act
    • Cost a factor in reasonableness
    • How certain do you need to be the adjustment will help?
  • Headache 3: Relevant Law
    • Cordell v FCO
      • C profoundly deaf and requires lip speakers
      • Posting withdrawn as support would cost in excess of £300k pa
      • C pointed to costs of private education
      • C unsuccessful at tribunal & EAT
      • Schooling costs relevant not determinative
      • Look in context of overall budget
  • Headache 3: Relevant Law
    • Foster v Leeds Teaching Hospital NHS Trust
      • F had to be moved from security department because of stress
      • Would be reasonable adjustment to put him on redeployment register
      • Does not need to be a good prospect, merely some prospect at the date of the decision
  • Headache 3: Relevant Law
    • Mylott v Tameside Hospital NHS Foundation Trust
        • M dismissed on grounds of ill health
        • Claimed should have been able to apply for ill health retirement
        • Adjustments are to help employees remain in work, not to compensate them for losing a job.
  • Headache 3: Conclusion
    • Consider the cost of reasonable adjustments – but remember it is not the only factor
    • Give consideration to any adjustment even if it is not certain to help
    • Remember adjustments are to help people back to work
  • Headache 4: Issue
    • Can England Plc carry out a competitive interview process?
  • Headache 4: Relevant Law
    • Morgan v The Welsh Rugby Union
      • National Elite Coach Development Manager and Coach Education Manager roles made redundant
      • New role of National Coach Development Manager
      • Person spec included list of skills and attributes
      • Interview - Presentation then questions
      • Standard questions prepared and a scoring system set out
      • Committee did not adhere to format for the interview
  • Headache 4: Relevant Law
    • Morgan v The Welsh Rugby Union
      • Committee gave overall scores and appointed other candidate
      • M claimed that if objective criteria followed he would have got the job
      • Tribunal found the appointment fair
        • No obvious bias
      • EAT upheld decision
        • New role requires assessment of ability to carry out that role
        • Employer’s judgment
  • Headache 4: Issue
    • Can England Plc refuse to make an enhanced payment if the redundant employee refuses to sign a compromise agreement?
  • Headache 4: Relevant Law
    • Garratt v Mirror Group Newspapers
      • G was a photographer
      • Past practice of enhanced redundancy payments
      • Collective agreement stated enhanced redundancy payment – 2 weeks’ basic pay per annum
      • G offered £80,000 subject to a compromise agreement
      • G refused to sign – told he would receive £48,000
  • Headache 4: Relevant Law
    • Garratt v Mirror Group Newspapers
      • No other employee had refused to sign
      • Tribunal found requirement to sign implied into contract
      • EAT upheld decision
        • Employees had always been required to sign
        • Employees knew of requirement
        • Employees had always received legal advice
  • Headache 4: Conclusion
    • England Plc can carry out a competitive interview process where the successful applicant is chosen on basis of interview
      • It is preferable to have defined criteria which applicants are assessed against
    • England Plc can refuse to make an enhanced payment
      • Requirement to sign a compromise agreement can be implied
      • Preferable to state such a requirement clearly
  • Headache 5: Issue
    • How much protection should Dr Green have to defend his career?
  • Headache 5: Relevant Law
    • Apply normal disciplinary rules to the case
    • Is the sanction within the band of reasonable responses?
    • What damage has been caused to colleagues and organisation?
    • Would another sanction be appropriate?
  • Headache 5: Relevant Law
    • Legal representation at hearing
    • Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust
      • Art 6 of ECHR – right to have civil rights determined before an impartial tribunal
      • Right to practice a profession a civil right
      • Right to a particular employment is not a civil right
  • Headache 5: Conclusion
    • Don’t treat social media offences any differently to other forms of misconduct
    • Consider who can be a representative at hearings
    • Is the offence likely to finish a career rather than just a job?
  • Headache 6: Issue
    • Can Cerebral Juice dismiss Holly?
  • Headache 6: Relevant Law
    • Bowater v N W London Hospitals
      • B was a staff nurse
      • At end of shift helped colleagues restrain a patient having an epileptic fit
      • B climbed on to ankles to restrain patient
      • Patient’s trousers and underwear removed to administer diazepam
      • Patient kicked B between legs causing her to land on his genitals
      • B remarked "It's been a few months since I have been in this position with a man underneath me"
  • Headache 6: Relevant Law
    • Bowater v N W London Hospitals
      • Patient unaware of incident
      • B dismissed for gross misconduct for failing to:
        • Restrain the patient appropriately
        • Promote dignity of patients
        • Uphold reputation of profession
      • ET found dismissal unfair but 25% contribution
        • Most people would have found remark humorous
      • EAT overturned decision
      • CA restored ET decision
  • Headache 6: Issue
    • Is Holly under a duty to accept a role from Botox Selecta?
  • Headache 6: Relevant Law
    • Debique v Ministry of Defence
      • D struggled to combine motherhood with being a soldier
      • D successfully claimed unlawful indirect sex and race discrimination
      • D received £15,000 for injury to feelings
      • No loss of earnings awarded as D refused alternative role offered during notice period
      • EAT upheld decision
  • Headache 6: Issue
    • Would Holly be able to bring a claim for sex and age discrimination if her replacement was an older man?
  • Headache 6: Relevant Law
    • Burden of proof:
      • Employee must prove facts from which a tribunal could conclude in the absence of an adequate explanation that the employer has unlawfully discriminated. This would include:
        • Evidence of a difference in sex/age
        • Evidence of a difference in treatment
        • Evidence of the reason for the difference in treatment
      • Employer must then prove it did not discriminate
  • Headache 6: Relevant Law
    • Community Law Clinic Solicitors Ltd and ors v Methuen
      • M was an Asian man aged 54
      • Dismissed after 5 months because failed to meet targets
      • Replaced by younger Afro-Caribbean woman who was paid much less
      • M claimed dismissed on the grounds of age, sex and race
      • Respondent said department running at a loss and could not afford M
      • ET at a PHR decided case had “little” prospect of success
        • M failed to point to fact from which discrimination could be inferred
        • Not bound to fail
        • Deposit order
  • Headache 6: Relevant Law
    • Community Law Clinic Solicitors Ltd and ors v Methuen
      • EAT disagreed
        • M didn’t explain discrimination claim
        • Can’t base claim solely on being replaced by someone with different protected characteristics
      • EAT allowed age discrimination claim to proceed
  • Headache 6: Conclusion
    • Cerebral Juice shouldn’t dismiss Holly depending on the investigation
    • Holly is under a duty to consider an alternative job at Botox Selecta
    • Being replaced by an older man should not be enough for Holly to bring discrimination claims
  • Headache 7: Issue
    • Has Ross got any claims?
  • Headache 7: Relevant Law
    • Redundancy selection and discrimination
    • Eversheds v De Belin
      • Claimant scored lower than colleague in redundancy exercise
      • Colleague been on maternity leave so given a notional score
      • Maternity protection is only what is “reasonably necessary” – i.e. proportionate
      • Other options available such as when both employees at work
  • Headache 7: Relevant Law
    • Can a reference be lawful if it seems unfair?
    • Jackson v Liverpool CC
      • J applied for new job
      • Reference from Liverpool caveated that there were record keeping issues
      • Made clear these had never been investigated
      • CA – reference true and accurate even though referred to matters which were untested
  • Headache 7: Conclusion
    • Take maternity leave into account but don’t over compensate
    • Take care with wording of references
    • If possible, try to agree a reference before termination
  • Headache 8: Issue
    • Is Michelle entitled to be paid for the overnight stays?
  • Headache 8: Relevant Law
    • Wray v J W Lees & Co
      • W temporary pub manager required to stay on premises overnight
      • W claimed pay for overnight hours – NMW legislation
      • ET incorrectly looked at definition of working time in Working Time Regs
      • EAT held W not working so not entitled to pay
  • Headache 8: Relevant Law
    • Wray v J W Lees & Co
      • W free to leave the premises at any time
      • W’s position different to night watchman or night sleeper in a residential home who had responsibilities throughout the night ( South Manchester Abbeyfield v Hopkins )
      • NMW Regulation 16:
        • Not working time if employee entitled to spend it at home
        • If employee is provided with accommodation at or near work and is given time to sleep, such time is not working time unless the employee is required to work
  • Headache 8: Issue
    • Has Tracy received the breaks she is entitled to under the Working Time Regulations?
  • Headache 8: Relevant Law
    • Hughes v The Corps of Commissionaires Management Ltd
      • Reg. 12 of the WTR states employees entitled to 20 minute break after working more than 6 hours
      • Reg. 21 sets out exclusions where employer requires permanent presence e.g.:
        • Security guards
        • Doctors
        • Dockers
        • Airports
      • Reg. 24 states that where reg. 21 applies employer:
        • Must try to provide “equivalent period” of compensatory rest; or
        • Take other measures to safeguard health and safety
  • Headache 8: Relevant Law
    • Hughes v The Corps of Commissionaires Management Ltd
      • H was a security guard
      • H could decide when to take breaks but could be interrupted
      • H claimed he wasn’t receiving correct breaks
      • ET held:
        • H wasn’t entitled to breaks but might be to compensatory rest
        • No practical way CCM could provide uninterrupted 20 minute compensatory rest
        • CCM provided H with adequate health and safety protection
  • Headache 8: Relevant Law
    • Hughes v The Corps of Commissionaires Management Ltd
      • EAT found the arrangements amounted to providing a period of compensatory rest
      • CA upheld EAT’s decision:
        • Compensatory rest didn’t have to be uninterrupted 20 minutes
      • CA also held CCM provided adequate health and safety protection
  • Headache 8: Conclusion
    • Michelle is not entitled to be paid for staying overnight
    • Tracy may not be receiving the correct breaks. The position may be different if Tracy carried out a different type of work
  • Headache 9: Issue
    • The rights of agency workers
  • Headache 9: Relevant Law
    • The Agency Workers Regulations
      • In force 1 October 2011
      • Not retrospective
    • Applies to:
      • Temporary agency workers
      • Those who supply temporary agency workers
      • Hirers
  • Headache 9: Relevant Law
    • Day One rights
    • Access to collective facilities and amenities of hirer
        • Canteen or other similar facilities
        • Child-care facilities
        • Provision of transport services
    • Access to employment vacancies
    • Liability for above on the hirer
  • Headache 9: Relevant Law
    • Continuity
    • Entitled to the same “basic working and employment conditions” as if directly recruited by the hirer after 12 weeks
    • Continuity broken and starts again when:
      • AW starts new assignment with new hirer
      • AW stays with same hirer but substantially different role
      • Break of at least 6 weeks
  • Headache 9: Relevant Law
    • Continuity not broken but weeks will not count where:
      • Break of less than 6 weeks
      • Break of up to 28 weeks where AW ill
      • Break where AW taking annual leave
      • Break caused by planned shutdown
      • Break caused by strike
    • Continuity continues where break due to maternity, adoption or paternity leave
  • Headache 9: Relevant Law
    • 12 week rights
    • “ Relevant terms and conditions ordinarily included” relating to:
      • Pay
      • Duration of working time
      • Rest periods
      • Rest breaks
      • Annual leave
    • Liability can rest with agency or hirer
      • Agency has defence if it took “reasonable steps” to obtain relevant information
  • Headache 9: Relevant Law
    • Pay includes:
      • Basic pay
      • Overtime pay
      • Shift allowances
      • Bonuses/commission
        • Where directly attributable to the TA
      • Vouchers or stamps with monetary value
  • Headache 9: Relevant Law
    • Pay excludes:
      • Occupational sick pay
      • Occupational pensions
      • Redundancy pay
      • Notice pay
      • Bonuses
        • Not linked to contribution of individual
      • Discretionary bonus payments
      • Majority of benefits in kind
  • Headache 9: Relevant Law
    • Liability for breach:
    • AW compensated for any loss
      • Minimum award of 2 week’s loss
    • Potential fine of up to £5,000 if deliberately trying to avoid the Regulations
  • Headache 9: Relevant Law
    • Employment status of Agency Workers
    • BIS v Studders
    • No employment contract where:
      • No evidence of intent to create an employment relationship
      • No obligation to accept assignment
      • No obligation to offer work
  • Headache 9: Conclusion
    • Supply information to an agency in good time
    • Be careful when moving agency staff from one role to another
    • Keep an eye on the length of assignments
    • Clarify which benefits fall within the Regulations and which don’t
    • Check the terms of engagement with the agency
  • Headache 10: Issue
    • Can Wealthy City dismiss Carlo?
  • Headache 10: Relevant Law
    • Orr v Milton Keynes Council
      • O was a part time youth worker
      • O discussed a sexual assault with kids at a community centre despite manager Mr Madden
      • 3 days later during discussion about working hours O was rude towards M
      • O was dismissed after disciplinary hearing conducted by group manager
  • Headache 10: Relevant Law
    • Orr v Milton Keynes Council
      • ET found
        • O’s behaviour towards M sparked by M trying to reduce O's working hours without agreement
        • When O began to use Jamaican patois M had committed direct race discrimination
        • Dismissal fair and non-discriminatory because
          • Reasonable investigation
          • Reasonable response to what was known to the dismissing officer at the time
  • Headache 10: Relevant Law
    • Orr v Milton Keynes Council
      • EAT upheld decision
        • ET’s should consider usual unfair dismissal test
        • Not enough for O to show but for discrimination would not have been dismissed
      • CA agreed
        • Only knowledge or state of mind of decision maker is imported to employer
        • MK had carried out reasonable investigation
        • O was dismissed for 2 counts of gross misconduct
  • Headache 10: Conclusion
    • Dismissal might not fall within band of reasonable responses depending on investigation
    • If Wealthy don’t discover Mankini’s abuse dismissal may be fair
  • On the horizon New Developments
  • National Minimum Wage
    • From 1 October:
      • Workers aged 21+: £6.08
      • Workers aged 18-20: £4.98
      • Workers aged 16-17: £3.68
  • Reform
    • 2 year qualifying period to claim unfair dismissal
    • Having a cap on discrimination claims
    • Introduce fees to commence proceedings
    • Abolition of unfair dismissal?
  •  
  • www.schofieldsweeney.co.uk
    • Simon Shepherd
    • [email_address]
    • 0113 220 6274
    • Alex Clements
    • [email_address]
    • 0113 220 6280
    • James Austin
    • [email_address]
    • 0113 220 6275
    • Polly O’Malley
    • [email_address]
    • 0113 220 6341