The document summarizes recent and proposed changes to UK employment law by the Coalition Government aimed at reducing regulatory burdens on businesses. Key points include: - Increasing the unfair dismissal qualifying period from 12 to 24 months and reforming Employment Tribunal procedures to reduce costs and speed up cases. - Consulting on introducing Employment Tribunal fees and mandatory pre-claim conciliation with ACAS. - Proposing increased maximum costs awards against claimants and penalties for employers who breach employment rights. - Summarizing recent redundancy, TUPE, and discrimination case law rulings.

1. Employment Law Update
Ben Doherty Senior Associate
Julie Sabba Associate
March 2012

2. EMPLOYMENT LAW REFORM
 The Coalition Government is focused on reducing the
regulatory burden on business
 A series of changes to employment law are being
consulted on and some are already in force
 A reform of the ET system is underway to reduce costs and
speed up proceedings

3. UNFAIR DISMISSAL
 Qualifying period for unfair dismissal has increased to 24
months
 Applies to all employees employed on or after 6 April 2012
 Those employed before 6 April 2012 will still be subject to
the 12 month qualifying period
 No qualifying period required if employee is dismissed for
an inadmissible reason
 Employment Judges to sit alone in unfair dismissal cases

4. DEPOSIT ORDERS & COSTS AWARDS
 The maximum for deposit orders in Tribunal claims likely to
be increased from £500 to £1,000 on 6 April 2012
 Appropriate if claim has no reasonable prospect of success
 The maximum for costs awards likely to increase from
£10,000 to £20,000
 Appropriate if a weak case has been pursued or the
Claimant has acted unreasonably

5. EMPLOYMENT TRIBUNAL FEES
 The Government is currently consulting on the introduction
of Tribunal fees
 Two options are proposed:-
 Fee to depend on nature of claim, with 3 levels of fees (increasing
depending upon complexity). This would involve a fee for making
the claim (£150 - £250) and a fee for the Hearing (£250 - £1,250); or
 A fourth fee level would be added for claims over £30,000. There
would only be a fee for making the claim (from £200 - £1,750).
 Fees for appealing ET’s decision (£400) and Appeal
Hearing fees of £1,200 for EAT claims

6. EMPLOYMENT TRIBUNAL FEES
 The fees that a Respondent will be required to pay are as
follows:
 application requesting for written reasons - £100 or 250 (depending
on level)
 application for review - £100 or £350
 dismissal after settlement or withdrawal - £60
 set aside default judgment - £100
 counter-claim - £150
 judicial mediation - £750

7. PRE-CLAIM CONCILIATION
 The Government is consulting on the proposal that
Claimants submit key details of their claim to ACAS before
submitting a formal claim to the Employment Tribunal
 If the key details are submitted within the time limit this will
“stop the clock”
 Thereafter, there will be a statutory period of one month for
ACAS to attempt to conciliate the dispute
 This would be a mandatory scheme

8. GREATER POWERS OF STRIKE OUT
 Proposal that ET can strike out a claim at any stage rather
than exclusively at PHRs
 Without the opportunity of parties making representations
 Employment Judge sitting alone can do this

9. PENALTIES FOR EMPLOYERS
 Employers likely to be issued with penalties by the ET
where they have breached employment rights
 Penalties would be payable to the Exchequer, not the
Claimant
 Penalties would be based on half the total award to the
Claimant (£100 minimum and £5,000 maximum)
 Penalty to be reduced by 50% if paid within 21 days

10. OTHER CHANGES BEING CONSULTED ON
 The ceasing of expenses for witnesses
 Amendment of whistleblowing rules so that breaches of
employment contracts are no longer covered
 Compromise Agreements to be simplified
 Collective redundancy consultation
 Consultation on improving the operation of TUPE

11. PROTECTED CONVERSATIONS
 The Government has proposed the use of protected
conversations between Employer and Employee
 Would allow frank discussions about poor performance,
retirement etc.
 Would be inadmissible in Court
 Scope for abuse!

12. OTHER CHANGES – PENSIONS AUTO-ENROLMENT
 Eligible Employees to be automatically enrolled into
pensions with mandatory Employer contributions
 For Employers with 3,000 plus staff, auto-enrolment will
start in Autumn 2012
 For Employers with fewer than 3,000 staff, auto-enrolment
will commence at a later date according to number of
employees

13. OTHER CHANGES – PARENTAL LEAVE
 Parental leave to increase from 3 months to 4 months
 Unlikely to come into force until 2013
 Open to all eligible workers including fixed-term, part-time
and temporary agency workers

14. CASE REVIEW
Redundancy Cases
1. Selection Pools: Halpin –v- Sandpiper Books
 When should an Employment Tribunal interfere with the pool for
selection chosen by the Employer? – Rarely
 The decision by the Employer to limit the pool to a pool of one
was open to it; such a decision cannot be easily overturned
 “Selection only operates, when fairness is concerned, where
there is a number of similarly qualified possible targets for
redundancy”

15. 1. Alternative Employment: Readman –v- Devon Primary
Care Trust
 Can an employee act reasonably in refusing an offer of suitable
alternative employment where the Employment Tribunal
correctly concludes that a reasonable employee would have
accepted the employer’s offer?
 The proper question is “whether the employee in question acted
reasonably in refusing the offer”.

16.  Samsung Electronics –v- Monte D’Cruz
 Can the employer appoint “the best person for the job”, even if
that involves a degree of subjectivity?
 A Tribunal should certainly consider how far an interview
process was objective
 “Subjectivity” in redundancy cases was often seen as a “dirty
word”, however “some subjectivity was inevitable”.

17. TUPE CASES
1. ETO Defence: Meter U Ltd –v- Ackroyd
 Is it an ETO defence to provide the services rendered by
franchised limited companies, rather than by its own employees?
 The EAT held that the term ‘workforce’ in Regulation 7 (2) TUPE
2006 did not include limited companies performing services for
the employer
 If the franchise arrangements were a sham, the ETO defence
would not apply as it would be a simple change in terms and
conditions in connection with a transfer.

18. 1. Service Provision Change: Johnson Controls –v- UK
Atomic Energy Authority
 Is there a SPC when the service is conducted in a fundamentally
or essentially different manner following the changeover?
 A question of fact in each case and requires an holistic
assessment by the Employment Tribunal.
 Recent EAT decisions suggest there will be no service provision
change under Reg 3 (1) (b) when the service is significantly re-
modelled

19. 1. Organised Grouping of Employees: Eddie Stobart Ltd –
v- Morman
 Is it sufficient to say that the transferring employees “go with the
work”
 Analytical distinction between an organised grouping of
employees, on the one and, on the other, whether employees
are assigned
 The EAT held that it is necessary to identify an organised
grouping of employees in advance of the question of which
employees were assigned to it
 The employees were “organised” as to their shifts, not as to a
particular customer.

20. DISCRIMINATION
 Christian Beliefs and Gay Rights: Bull –v- Hall & Preddy
 Hotel in Cornwall operated a strict policy refusing double
bedrooms to unmarried couples
 Claimants, had undergone a civil partnership ceremony argued
that they should be treated the same way as a married couple
 Court’s reject Mr & Mrs Bull’s Article 9 argument, ie that the “no
unmarried couples” policy was simply a manifestation of their
religious belief
 If they chose to run a business, they had to run it in accordance
with the law

21.  Objective Justification: Cost alone? – Woodcock
–v- Cumbria Primary Care Trust
 The Court of Appeal rejected the argument that cost
cannot be a legitimate aim, so as to justify some
types of discrimination
 The Employment Tribunal found that service of the
notice was less favourable treatment on the grounds
of the Claimant’s age

22. It accepted that this treatment of the Claimant was a proportionate
means of achieving the Trust’s legitimate aim of achieving the
dismissal of a redundant employee in a cost effective manner and
so as to prevent him from benefitting from a windfall.

24.  Britain’s Got Talent: Czikai –v- Freemantle Media & ors
 Talent show contestant held not to be a job applicant
 No disability discrimination

25. QUESTIONS?