Presentation from conference on latest employment law updates, recent changes in legislation and case law updates

1. Employment Law Conference
Paris Smith LLP
26 March 2014

2. Introduction
Clive Dobbin
LLP Partner
Paris Smith LLP

3. Paris Smith HR Network

4. Essential Line Manager Training 2014
• 30 April – Performance management
• 18 June – Disciplinary and grievances
• 24 September – Absence management

5. Health and safety clinic
• Only takes an hour of your time!
• No cost to you!
• No strings attached
Contact:
Sarah Wheadon
023 8048 2109
sarah.wheadon@parissmith.co.uk

6. Paris Smith Human Resources

7. Paris Smith Human Resources is the innovative web
service which helps you manage all your HR
documentation and processes online, and which includes:
• Managers’ Toolkit - Key
resources, guides and
template letters for routine
employment matters
• Contracts & Policies -
Storage of contracts and
policies, and creation of
individual contracts
• HR Manager - Personnel
files and absence
management
• Regular updates and
newsletters

8. Managers’ Toolkit provides useful basic guides on a
range of common employment law issues and includes
template letters and documents.
Topics covered include:
•Disciplinary proceedings
•Grievances
•Absence and performance
management
•Equality issues and family
friendly rights

9. Contracts & Policies enables you to store and access
your contracts and policies online and create and issue
contracts and policies to staff straight from your account.
The team at Paris Smith can
also, for a fixed fee, audit your
current contracts of
employment and your policies
and procedures, to ensure that
your documents are kept up to
date and in line with current
employment legislation.

10. The HR Manager offers a range of features to streamline
your HR Management including:
• Employee files and records
plus easy storage for legally
required documentation
such as Visas, CRB checks
and GP reports
• Self service management to
record holiday, sickness and
other absences
• Managing and creating staff
rotas
• Integrates with Sage Instant
and Sage 50 Payroll
• Complies with Data
Protection legislation

11. Topics to be covered
• Changes in legislation – Clive Dobbin
• Case law update – David Roath

12. Changes in legislation
• Changes to TUPE
• Abolition of discrimination questionnaires
• Pre-claim conciliation
• Financial penalties in Employment Tribunals
• Financial limits
• To come

13. Changes to TUPE
• Employee liability information
• Service provision changes
• Changing terms and conditions, including changes
to place of work
• Collective agreements
• Redundancy consultation
• TUPE consultation for micro businesses
• Changes came into force on 31 January
2014

14. TUPE – employee liability information
• Previously transferor had to provide employee
liability information 14 days prior to transfer
• Many argued too late
• Now, period extended to 28 days prior to transfer
• Applies to transfers which take place on or after 1
May 2014

15. Service provision changes
• TUPE can apply to change of service provider
• Activities carried out after the transfer must be
fundamentally the same as those carried our prior to
the transfer
• Reflects current case law
• Changes should be substantial, minor changes are
unlikely to be sufficient

16. Changes to terms and conditions
• Now easier to change terms and conditions
• Can change terms and conditions, even if reason for
change is the transfer, if:
• Reason for the change is an ETO reason, provided
employee agrees to the change
• Terms of the employment contract permit the
employer to make such a change
• The term is implied from a collective agreement and:
• 1 year has passed since the transfer; and
• New contract is, overall, no less favourable to
the employee

17. TUPE – changes in workplace
• Previously, could only change workplace if ETO
reason
• ETO reason – economical, technical or
organisational reason
• Change in the number or functions of employees
• Arguably, change of workplace not ETO reason
• TUPE amended – change in workplace can be an
ETO reason

18. TUPE – changes in workplace
• Can now change place of work if:
• Employee agrees
• If have contractual right to do so
• If not, can impose change by dismissing and offering
re-employment

19. Collective agreement
Issue
•Pay determined by national bargaining body
•Service outsourced
•New employer (service provider) not party to national
bargaining body
•National bargaining body agrees pay rise after
transfer
Question
•Is the new employer bound by pay rise?

20. Collective agreements
Alemo-Herron v Parkwood Leisure
•Dynamic approach – continue to be bound by pay
rises determined by national bargaining body; or
•Static approach – not bound by pay rises agreed after
transfer
•Held – static approach applies

21. Collective agreements
• TUPE now amended to reflect static approach
• Provided transferee is not a participant in the
collective bargaining

22. Redundancy consultation
• Previously, unclear if could start consulting prior to
transfer
• If couldn’t, couldn’t make changes, e.g. to location,
until some time after transfer

23. Redundancy consultation
• Trade Union and Labour Relations (Consolidation)
Act 1992 now amended
• Allows transferee to begin collective consultation on
potential redundancies before transfer
• Transferee must elect, by written notice to the
transferor, to start consultations prior to transfer
• Still requires co-operation and assistance of
transferor

24. TUPE consultation
• Micro businesses – employers with nine or fewer
employees
• Will be exempt from requirement to elect, and
consult with, employee representatives
• Can consult with employees direct
• Applies to number of employees that employer has –
and not number of employees affected by transfer
• Applies to transfers which take place on
or after 31 July 2014

25. Abolition of discrimination questionnaires
• Previously, if believe discriminated against, could
serve discrimination questionnaire
• If not responded to, or if answers ambiguous or
evasive, tribunal could draw inferences
• Government views questionnaire procedure as
overly burdensome on employers
• To be repealed with effect from 6 April 2014

26. Abolition of discrimination questionnaire
• Will be replaced by informal procedure
• Under informal procedure, individual can still ask
questions
• ACAS guide
• No longer formal process for drawing inferences
• However refusal to answer questions can still be
taken into account as part of wider factual matrix

27. Abolition of discrimination questionnaire
• Suggested process for asking questions
• Give own details, and person being complained about
• Identify ‘protected characteristic’ being relied upon
• Described treatment being complained about

28. Abolition of discrimination questionnaire
• Suggested procedure (cont)
• Identify type of discrimination
• Why believe treatment discriminatory
• Additional questions, e.g. requests for statistical
information
• Specify deadline for response

29. Abolition of discrimination questionnaire
• Suggested procedure for answering questions
• Agree/disagree with the statement
• Do you consider the treatment was justified?
• Respond to other questions

30. Abolition of discrimination questionnaire
• Process therefore very similar to discrimination
questionnaire process
• May not, therefore, have a significant impact

31. Tribunal reform
• Tribunal reform – government has already:
• Unfair dismissal claims – now heard by judge sitting
alone
• Introduced tribunal fees
• Aims
• Reduce burden on businesses
• Save money

32. Tribunal reform
• Further changes
• Pre claim conciliation
• Financial penalties in Employment Tribunals

33. Early conciliation
• Voluntary from 6 April 2014
• Compulsory from 6 May 2014
• Prior to presenting claim to tribunal, must submit
details to ACAS for early conciliation
• ACAS then has 1 month in which to attempt
settlement
• Pause in time limits

34. Early conciliation
• If either party unwilling to conciliate period can come
to an end early
• If conciliation still active, period can be extended by
up to 14 days
• At end of process, ACAS will issue Claimant with
certificate, which will enable him/her to lodge claim

35. Penalties in Employment Tribunals
• Applies to cases presented on or after 6 April 2014
• If employer loses in tribunal, tribunal can require
employer to pay an additional penalty
• Payable to government, not claimant

36. Penalties in Employment Tribunals
• Award – 50% of award made to claimant (minimum
£100, maximum £5,000)
• Reduced by 50% if paid within 21 days
• Tribunal will take into account ability to pay

37. Penalties in Employment Tribunals
• Penalty will be awarded where claim has one or
more ‘aggravating features’
• Government has suggested that an employer who
makes a genuine mistake will not be penalised

38. Penalties in Employment Tribunals
• ‘Aggravating features’ not defined
• Consultation paper – where ‘the breach involves
unreasonable behaviour, for example where there
has been negligence or malice involved’
• Explanatory notes state that relevant factors could
include:
• The duration of the breach
• The employee’s and employer’s behaviour
• The circumstances of the case; and
• The size of the employer

39. Financial limits
Previously New limit
Unfair dismissal £74,200 £76,574
Weeks pay £450 £464
•Changes effective 6 April (previously 1 February)

40. Statutory amounts
Previously New
Maternity £136.78 £138.18
Statutory sick pay £86.70 £87.55
•Changes effective 6 April

41. Changes in legislation – to come
• Flexible working – right to be extended to all
employees (with 26 weeks’ service)
• Currently just parents and carers
• Comes into force – 30 June 2014
• Current prescribed procedure to be repealed
• Replaced with obligation to consider requests in a
reasonable manner

42. Flexible working
• ACAS Code – will have statutory force
• ACAS Guide

43. Flexible working
• ACAS Code
• Can only make one request in any 12 month period
• Need to weigh up benefits against any adverse
business impact
• Process must be completed within 3 months (can be
extended by agreement)
• Employer can treat application as withdrawn if
employee fails to attend original meeting and re-
arranged meeting without a good reason

44. Time off – ante-natal care
• Unpaid time off
• Up to two ante-natal appointments
• Applies to woman’s husband, civil partner, partner,
father, or intended parents in surrogacy arrangement
• Comes into force – 1 October 2014

45. Changes in legislation – to come
• 5 April 2015 – shared parental leave

46. Case law update
David Roath
LLP Partner
Paris Smith LLP

47. Redundancy
• Redundancy is a fair reason to dismiss
• Employer must act reasonably in all of the
circumstances
• Procedural fairness is important

48. Redundancy
• Generally no obligation to:
• ask for volunteers
• accept an application for VR
• accept all applications for VR
• Employer can decide that volunteer has skills it can’t
afford to lose
• But failure to accept application could affect fairness
in certain circumstances

49. Redundancy
Stephenson College v Jackson
•7 employees in the pool
•A scored 1 point less than B
•B applied for voluntary redundancy
•B’s application rejected and A was dismissed
•Decision no reasonable employer would have taken
•Unusual circumstances

50. Unfair dismissal
• Dismissal for conduct
• Employer must have reasonable belief that
misconduct has occurred
• Decision to dismiss for that misconduct must be
within the “band of reasonable responses”
• Size and administrative resources of the employer
are relevant factors
• Is it fair to dismiss an employee on recommendation
of an external consultant?
GM Packaging v Haslem

51. Unfair dismissal
• Owner and Director was witness and also
investigated
• Generally:
• Don’t conduct disciplinary hearing if a witness
• Split roles of investigation, discipline and appeal
where possible
• Reasonable to:
• Appoint external consultants to conduct disciplinary
and appeal hearings
• Dismiss on recommendation

52. Unfair dismissal
• Employer must have fair reason as well as act
reasonably
• Some other substantial reason is fair reason to
dismiss
• Criminal charge or conviction can be fair reason to
dismiss
• What about an allegation of criminal conduct?

53. Unfair dismissal
Z v A
•School caretaker
•Allegation of historic child abuse
•No charge by police
•Police did not give a view
•No rule that mere allegation of abuse makes dismissal
fair
•Dismissal unfair in this case

54. Unfair dismissal
Z v A
•EAT referred to case of Leach v Ofcom
•Police had expressed a view in that case
•Useful guidance in that case
•Very fine margins

55. Unfair dismissal
• Dismissal after final written warning
• Usually further act of misconduct will justify dismissal
• What if employee has appealed the earlier final
written warning?

56. Unfair dismissal
Rooney v Dundee City Council
•Tribunal should take into account any proceedings
that may affect the validity of that warning
•Test is whether employer has acted reasonably
•Fair to proceed in this case without hearing appeal

57. Recording
• Do you allow employees to record internal
meetings?
• Covert recording?
• Open and closed parts of disciplinary hearing

58. Recording
Punjab National Bank v Gosain
•Both private and public parts of recording were
admissible
•Be careful!
•Vaughan v London Borough of Lewisham
•“distasteful but not necessarily inadmissible”

59. Maternity leave
• Whilst on maternity leave, employee entitled to:
• the benefit of the terms and conditions of employment
which would have applied if she had not been absent
• except for the terms as to remuneration
• non cash benefits therefore must be retained
• what about withdrawal of tools of job?
• Section 18 Equality Act 2010
• A person (A) discriminates against a
woman if, in the protected period in
relation to a pregnancy of hers, (A) treats
her unfavourably because of the
pregnancy

60. Maternity leave
Metropolitan Police v Keohane
•Dog handler had 2 dogs
•1 removed during pregnancy
•Removal and failure to reallocate were acts of
discrimination
•Risk of impact on career progression and overtime on
return

61. Post natal depression
• After maternity leave has ended, do you need to
treat employee differently?
• Employee with post natal depression
• S.18 Equality Act (pregnancy related discrimination)
• Protected period – start of pregnancy to end of
maternity leave
• Sex discrimination

62. Post natal depression
Lyons v DWP Jobcentre Plus
•Maternity leave ended September 2010
•Dismissed for capability March 2011
•Not pregnancy related discrimination
•Not sex discrimination

63. Vicarious liability
• Employer liable for discriminatory acts of employees
under Equality Act 2010
• Away from discrimination, for employer to be
vicariously liable needs to be:
• such a sufficiently close connection with the
wrongdoing
• that it can be regarded as in the course of
employment

64. Vicarious liability
Mohamud v WM Morrison Supermarkets
•Vicious and unprovoked attack on M
•Look at closeness of connection of:
• Act of employee and
• Duties he is required to perform
•Contact between sales assistant and customer not enough

65. Vicarious liability
• Employer can also be liable for acts of agents
• S. 109 Equality Act 2010
• Anything done by an agent for a principal, with the
authority of the principal, must be treated as also
done by the principal
• Needs to be express or implied consent that agent
works on principal’s behalf
• Outsourced services?

66. Vicarious liability
Kemeh v MOD
•MOD contracted out catering
•Racist comment of caterer to MOD employee
•Caterer not acting on behalf of MOD
•Working for Sodexho for benefit of MOD

67. Disability discrimination
• Knowledge of disability generally a pre requisite for
discrimination
• Treatment arising from disability
• Duty to make reasonable adjustments
• Knew or could reasonably have been expected to know
• How do you know?
• What if doctor says not disabled?

68. Disability discrimination
Gallop v Newport City Council
•G suffered from stress related illness
•OH Advisors concluded that G not disabled
•Could Council rely on medical reports?
•No – question of disability is for Tribunal to decide
•Employer must make its own judgement

69. Disability discrimination
Gallop v Newport City Council
•Frame questions carefully – guidance from Court of
Appeal
•Don’t ask in general terms whether the employee is a
disabled person within the meaning of the legislation
•Pose specific practical questions directed to the
particular circumstances of the putative disability

70. Disability discrimination
• Duty to make reasonable adjustments
• Clinical psychiatrist recommends that employer pays
for an employee with work-related stress and
depression to have private medical treatment
• Is this a reasonable adjustment?

71. Disability discrimination
Croft Vets v Butcher
•C suffers from depression
•Doctor recommended that employer pays for CBT and
further psychiatric sessions
•Employer in breach by not actioning recommendation
•Payment:
• Not for private medical treatment generally, but
• Support to enable C to return to work
and cope with work related difficulties

72. Religious discrimination
• Can you require a Christian to work on a Sunday?
• Indirect discrimination
• Focus is often on justification
• Must be a proportionate means of achieving a
legitimate aim

73. Religious discrimination
Mba v London Borough of Merton
•M was a Christian
•Contractually required to work 2 out of 3 Sundays
•Was group disadvantage, but justified
•Balancing exercise:
• Discriminatory effect
• Reasonable needs of the employer

74. Religious discrimination
Mba v London Borough of Merton
•Is there an alternative way of achieving aim?
•No viable or practicable alternative way of running the
care home effectively without requiring M to work on
Sundays
•M knowingly signed a contract requiring her to work
on weekends

75. Thank you, any questions?
For further information and advice, please contact:
Clive Dobbin
LLP Partner
Paris Smith LLP
T: 023 8048 2370
E: clive.dobbin@parissmith.co.uk
www.parissmith.co.uk