Employment law presentation reviewing key developments in employment law in 2012, and looking ahead to issues which will impact upon employers and employees alike in 2013, including a focus on apprenticeships

1. Employment Law Breakfast
Briefing
March 2013

2. Review of 2012
Edward Jenneson

3. Qualifying period for unfair dismissal

4. Judges sitting alone

5. Witness Statements

6. Increase costs award
Increase deposit award
Increase cost of Tribunals - now at
record £84 million per year

7. Looking at mediation before litigation

8. Increase in statutory payments

9. National minimum wage - 1 October 2012
£6.08 to £6.19 - 21 and over
£2.60 to £2.65 - Apprentices
Youth rate unchanged at £4.98

10. Last possible date to legally retire an employee!

11. Employment Law Reform
Donna Ingleby

12. Introduction
• The Enterprise Regulatory Reform Bill
• The Employment Tribunal Rules Review
• The Children and Families Bill

13. Dates to Look out for in Spring
2013
8 March
increase in unpaid
1 April
parental leave (13
weeks to 18 the Legal Aid
6 April
weeks). Sentencing and
Punishment of Changes to
9 April
Offenders Act collective
2012. consultation. Close of ACAS
11 April
Remove new One hundred plus consultation on
employment cases redundancies at the Code of Close of
from the scope of one establishment Practice for Government
legal aid, except in - consultation settlement consultation on
relation to reduced to 45 agreements. repealing
discrimination days. elements of TUPE.
complaints. Regulation of
employment
businesses and
employment
agencies.

14. Summer 2013
• Portable online DBS (previously CRB)
• Review of Agency Workers Regulations
• Whistle blowing reform
• New Tribunal fees and rules
• Making Settlement Agreements easier
• Twelve month cap on unfair dismissal compensation

15. Autumn 2013
• Employee shareholder employment status
• TUPE Regulation reforms

16. Spring 2014
• The right to request flexible working for all employees
• ACAS Early Conciliation introduced
• The introduction of Employment Tribunal penalties

17. Looking forward 2015
• Shared parental leave
• Changes to the Equality Act 2010

18. A Focus on Apprenticeships
Lottie Pigg

19. The Old Regime
Common Law Apprenticeship
1. Primary purpose training
2. Secondary purpose employment
3. Cannot dismiss on same grounds as an ordinary
employee

20. • Learoyd v Brook (1891)
– Apprentice’s actions must be so extreme that the apprentice is
effectively unteachable
• Dunk v George Waller & Son Ltd (1970)
– Lack of initiative and an unsatisfactory college report did not
justify dismissal
• Wallace v C A Roofing Services Ltd (1996)
– Redundancy only permitted if potential closure or fundamental
change to the character of the business

21. Common Law Apprenticeship
• Risks:
– Wrongful Dismissal
– Compensation based on lost earnings and loss of expected
earnings on achieving the qualification

22. The New Regime
Apprenticeships, Skills, Children and Learning Act
2009 (“ASCLA 2009”)
• Primary purpose employment
• Apprenticeship Agreement two main requirements:
– The Apprentice must undertake work for the employer
– The Apprenticeship must be in the “prescribed form”

23. Prescribed Form
• Must be a written contract of employment (section 1
Employment Rights Act 1996)
• Must include a statement of skill trade and occupation
• Must be and state entered into in connection with a
qualifying apprenticeship framework

24. Apprentice Rights
Pay
Apprenticeship Rate: £2.65/hour Under 19 or over but 19 in first year of
apprenticeship
Development Rate: £4.98/hour Aged 18 -20
Standard Adult Rate: £6.19/hour Aged 21 or over

25. The Working Time Regulations
Working Hours
Under age 18 Age 18 or over
Max 8 hours work/day Max 48 hours work/week
Max 40 hours work/week Can “opt out”
No night work between 10 pm - 6 am or Max 8 hours night work in each 24 hours
11 pm - 7 am 11 hours rest in each 24 hours
12 hours rest in each 24 hours 20 minute rest break when working over
30 minute rest break when working over 6 hours/day
4.5 hours/day
Holiday Entitlement Health & Safety
28 days/year or 5.6 weeks Risk Assessment
Can include bank holidays

26. Sickness Absence
• Entitled to SSP provided earn at least £107/week
(£109/week from April 2013)
• SSP currently £85.85/week
– Company Sick Pay
– Absence Procedure

27. Maternity & Paternity Leave
Exactly the same as your employees so provided have sufficient continuous
employment and earn at least as much as the Lower Earnings Limit for NIC £107/week
(£109/week from April 2013)
Maternity Leave (52 weeks) Paternity Leave (2 weeks)
No qualifying level of employment Employed for 26 weeks before the 15th week
before expected week of childbirth
Statutory Maternity Pay Statutory Paternity Pay
Employed for 26 weeks before the 15th week As above
before expected week of childbirth 2 weeks at £135 or 90% of weekly earnings
6 weeks 90% of earnings 33 weeks at SMP whichever is the lower
£135.45

28. Summary
• Existing apprentices
• New apprentices
• Contractual documentation is key!

29. Case Update
Ed Jenneson

30. Employee or self-employed?
Quashie v Stringfellows.
• Dismissed and claimed unfair dismissal
• Mutuality of obligations
• Subject to disciplinary process
• Court of Appeal
• Had to consider how she was paid

31. Is it ok to shout?
Townsend v Gillette UK
Farnaud v Dr Hadwen Trust Ltd
• Importance of procedure

32. Be careful what you eat!
Kaczor v Booker Limited
• “a harsh dismissal will not always be an unfair dismissal”
• Theft justifies dismissal. Even if it is only 39p!
Note Employment Tribunal decision and not binding

33. Behave at the Christmas party!
Gimson v Display by Design Limited
• During the course of employment?
• Deemed sufficiently connected

34. Religious Discrimination
• The right to wear a cross
• A number of cases went to Europe
Ms Eweida v BA
• Deemed to be a manifestation of her religious belief
• BA wanted “clear corporate image”
• No evidence that wearing a cross would damage that
image
However, NOTE: This is the one which hit the press

35. Religious Discrimination
Chaplin v NHS Trust
• No discrimination on health and safety grounds
• Worn it since 1978
• Department of Health Guidelines to “protect the health
and safety of patients and staff”

36. Religious Discrimination
Ladele and McFarlane
• Refused to deal with gay individuals on the grounds of
their religion
• Marriage counsellor and civil servant who performed civil
ceremonies
• Employer was right to conclude that all employees
adhered to a non-discriminatory policy

37. Age Discrimination
Nolan v CD Bramall Limited/ta Evans Halshaw
• Be careful what you say as “Yoda” was discriminated
against.
• Brought claim for unfair dismissal and age discrimination
on the basis that he was selected for redundancy based
on the fact that he was nearing retirement.
• 104 year old team leader
• Changed number plates on his car

38. Any Questions?

39. Donna Ingleby Ed Jenneson Lottie Pigg
Partner, Head of Employment Associate Senior Solicitor
donna.ingleby@rollits.com edward.jenneson@rollits.com lottie.pigg@rollits.com
01482 337314 01482 337341 01482 337242