Slides from Pure Employment Law's update seminar on 5 June 2014 aimed at HR professionals, managers and business owners. Covering updates on human resources, law reform, TUPE, whistleblowing, flexible working, Employment Tribunals, case law, ACAS pre-claim conciliation and more!

1. Employment Law Update 2014
5 June 2014
Nicola Brown, Peter Stevens & Anna Rabone

2. Family friendly changes
Children and Families Act 2014
• Time off for appointments
• Shared parental leave
• Flexible working for all

3. Time off for appointments
• Pregnant employees can already take paid
time off for ante-natal appointments
• From 1 October 2014, eligible employees
and agency workers will have the right to
take unpaid time off for up to 2 ante-natal
appointments of up to 6.5 hours each
• Eligible = partner of pregnant woman,
father of the child, or intended parent in a
surrogacy situation

4. Time off for appointments
• Adopters may take time off to attend
appointments to meet the child they intend
to adopt
• Single adopters allowed up to 5
appointments (with pay)
• Joint adopters can elect one person to
attend 5 and the other to attend up to 2
(unpaid)

5. Time off for appointments
• If the employer refuses to allow the time
off or refuses to pay – Tribunal can award
compensation of twice their hourly rate for
the time they were absent
• If an employee is dismissed or subjected to
a detriment for exercising the right –
automatically unfair

6. Shared parental leave
• A maximum of 52 weeks’ leave (39 of
which with statutory pay) to be shared
between parents (if they both have 26
weeks’ service with their employers)
• Applies where children expected to be born
or placed with them from 5 April 2015
• Protection from dismissal or detriment for
seeking to exercise the rights applies from
1 October 2015

7. Shared parental leave
• Compulsory maternity leave period will still
apply – shared parental leave can only
apply once maternity leave (or period of
maternity allowance) has ended
• Leave to be taken separately or
concurrently, and can be taken in blocks
• 20 KIT days per employee

8. Shared parental leave
• Applies equally to adopters and intended
parents in a surrogacy arrangement
• Adoption pay brought in line with SMP, i.e.
first 6 weeks at 90%

9. Shared parental leave
• Very complex requirements for notices etc.
• Ordinary paternity leave will still be
available (2 weeks)
• Guidance to be published ‘in the summer’
• Take up?

10. Flexible working for all
• From 30 June 2014
• All employees who have 26 weeks’ service
will have the right to make a request –
regardless of whether they are parents or
carers
• Current procedures abolished - employers
will have a duty to deal with requests
‘reasonably’

11. Flexible working for all
• ACAS Code of Practice – principles based
• Adapt your own policies and procedures
• Interaction with discrimination law
• Consistent and fair approach will be key

12. TUPE changes
• New Regulations in force 31 January 2014
• Pre-transfer collective consultation now
permitted, provided transferor and
transferee agree
• Service provision change – must be
“fundamentally or essentially the same”
• Changing the location of the workforce is
now expressly included as an ETO reason

13. TUPE changes
• From 1 May 2014 – employee liability
information now 28 days before the
transfer
• From 31 July 2014 – micro businesses
(less than 10 employees) can consult staff
direct, rather than through representatives

14. Whistleblowing changes
• 25 June 2013 – addition of the requirement
for public interest
• No need for good faith to claim – but if no
good faith, compensation can be reduced
by 25%
• Vicarious liability for detriment caused by
other workers
• Future reform?

15. Zero hours contracts
• What are they and how widely are they
used?
• Lots of media coverage about potential
reforms – no details of what or how yet
• Likely that reforms will be focused on
things like exclusivity clauses
• Watch this space!

16. Employment Tribunal reforms
Peter Stevens

17. Tribunal process changes
Since 6 April 2012:
• Judges sit alone in unfair dismissal cases
• Witness statements taken as read
• Deposit orders – cap increased from £500
to £1,000
• Cap on costs increased from £10,000 to
£20,000

18. ACAS Early conciliation
From 5 May 2014:
• Mandatory four-step pre-claim conciliation
1. Claimant to fill our Early Conciliation
form
2. Initial contact made by ACAS. If
Claimant proceeds, assigned to ECSO

19. ACAS Early conciliation
3. ECSO has one month to promote
settlement between the parties (can be
extended once for 14 days)
4. EC Certificate issued if settlement not
reached
• Claim cannot proceed without EC
Certificate

20. ACAS Early conciliation
• Effect on time limits

21. Introduction of fees
• Started on 29 July 2013
• Employment Tribunals were funded by
taxpayers - annual cost £84 million,
average £1,800 per case
• Transfer the burden on to those who use
the system or ‘who cause the system to be
used’

22. Fee structure
• Type A – wages, notice, redundancy etc
• Type B – unfair dismissal, discrimination,
equal pay, whistleblowing
• Issue fee = £160 or £250
• Hearing fee = £230 or £950
• (Discounts for multiple claims)
• Other fees, e.g. Dismissal fee = £60
(payable by Respondent)

23. Effect of Fees
• 79% reduction in claims
• Challenge by Unison

24. Fees
• Tribunal can order unsuccessful party to
pay the successful party’s fees – but what
is ‘success’?
• No infrastructure in the Employment
Tribunals

25. Fees
• The remission system will apply fees –
already causing delays in the processing of
claims
• Only 5% of remission applications succeed

26. Tribunal fees
“I’m sure you’re very confident about your claim, but I’m
afraid we can’t accept a post-dated cheque.”

27. Fines for Employers
• Came into force 6 April 2014
• Judge can impose on employers who lose, if
the case has "one or more aggravating
features”
• 50% of award (min £100, max £5,000)
payable to the Exchequer – 50% discount for
prompt payment
• In addition to uplift under ACAS Code

28. Cap on Compensation
• Basic Award - £464pw
• Compensatory Award
£76,574 or
1 year’s gross pay

29. Case Law Update
Anna Rabone

30. Neal v Freightliner Ltd (2013)
• Employment Tribunal
• Mr Neal a “multi-skilled operative” at the
company’s Birmingham depot
• Contractually obliged to work 35 hours a
week, but in reality he worked more (although
this was considered voluntary)
• Holiday pay calculated by reference to his
basic pay (based on 35 hours)

31. Neal v Freightliner Ltd (2013)
• Claim for unauthorised deduction from wages
& breach of WTR 1998 – overtime not
included in holiday pay
• EJ upheld Mr Neal’s claim – voluntary overtime
to be taken into account when calculating
holiday pay (based on 12 weeks before
holiday)

32. Neal v Freightliner Ltd (2013)
• WTR do not adequately implement the
Working Time Directive
• WTR interpreted purposively to give effect to
the Working Time Directive
• 4 weeks’ holiday rather than 5.6 weeks?

33. Lock v British Gas Trading Ltd (2014)
• Trend in Neal continues
• Claim for holiday pay to include commission
• European Court of Justice said workers must
be in a comparable position to when they are
working
• Warning – more case law & possible
legislation changes expected!

34. Punjab National Bank v Gosain (2014)
• Employment Appeal Tribunal
• Claims for sexual harassment, sex
discrimination & constructive unfair dismissal
• Claimant secretly recorded both the “public”
and “private” conversations connected with a
grievance hearing and a disciplinary hearing
• Were the private conversations admissible?

35. Punjab National Bank v Gosain
(2014)
• Tribunal said yes, and EAT agreed
• Balancing exercise
• Green light for employees to record hearings?
o Establish ground rules for hearings in
relevant policies
o Ask if there is a suspicion a hearing is being
recorded

36. Peacock Stores v Peregrine & ors
(2014)
• Employment Appeal Tribunal
• Implied term that employees contractually
entitled to enhanced redundancy payments
• Evidence that Peacock Stores paid without a
cap on years of service, and without a cap on
weekly pay
• Custom and practice

37. GM Packaging (UK) Ltd v Haslem
(2013)
• Employment Appeal Tribunal
• Two employees accused of gross misconduct
• Employer engaged external HR to conduct
disciplinary & appeal
• External HR sought authority to summarily
dismiss & to dismiss appeal from MD

38. Kisoka v Ratnpinyotip (t/a
Rydevale Day Nursery)
• Employment Appeal Tribunal
• An employee accused of gross misconduct
• Employee summarily dismissed and lodged an
appeal
• Employer arranged for appeal to be heard by
an independent body

39. Kisoka v Ratnpinyotip (t/a
Rydevale Day Nursery) (2013)
• Independent panel recommended that
decision to dismiss overturned
• Employer disagreed – did not implement the
recommendation
• Was the employer bound to follow the
decision of the independent body?

40. Gallop v Newport City Council (2013)
• Court of Appeal
• Awareness of employee’s disability
• Occupational Health reports said “not
disabled”
• Dismissed due to disciplinary allegations

41. Gallop v Newport City Council (2013)
• Claims for unfair dismissal, direct disability
discrimination and failure to make reasonable
adjustments
• Criticised for “unquestioning adoption of
Occupational Health’s unreasoned opinion”
• Employer must make factual judgment on
whether an employee is or is not disabled

42. BS v Dundee City Council (2013)
• Scottish Court of Session
• Employee dismissed after 272 days sickness
absence
• Occupational Health reports obtained

43. BS v Dundee City Council (2013)
• Employee brought claim for unfair dismissal,
seeking reinstatement to his job
• Was it fair to dismiss?
• Challenge poor occupational health reports!

44. Croft Vets Ltd & ors v Butcher (2013)
• Employment Appeal Tribunal
• Employee off work due to clinical depression
• Occupational health recommended counselling
• Employer raised queries, resulting in
significant delays

45. Croft Vets Ltd & ors v Butcher (2013)
• Employee resigned, claiming constructive
unfair dismissal and disability discrimination
• Payment for counselling was a reasonable
adjustment in this case
• Depends on individual facts & financial
resources will be taken into account

46. Vision Events (UK) Ltd v Paterson
(2013)
• Employment Appeal Tribunal
• Flexi-hours scheme in place
• Documentation silent on what happens to
those hours at the end of employment
• Employee made redundant – 1043 hours of
flexi-time outstanding (approx £12,500)

47. Vision Events (UK) Ltd v Paterson
(2013)
• Employer offered to pay a portion – this was
refused
• Claims for unfair dismissal & unlawful
deductions
• No implied term in contract that these hours
would be paid

48. Wright v North Ayrshire Council
(2013)
• Employment Appeal Tribunal
• Employee resigned for personal & work
reasons
• Claim for constructive unfair dismissal
• Did breach by employer play a part in the
resignation?

49. Cleeve Link Limited v Bryla (2013)
• Employment Appeal Tribunal
• Ms Bryla employed for 12 weeks
• Employer paid a candidate fee & costs of a
flight
• Contract provided for costs to be recouped by
employer if employment ended early on

50. Cleeve Link Limited v Bryla (2013)
• Ms Bryla dismissed for gross misconduct
• Costs paid were deducted from last wages
• Claim for unlawful deduction from wages
• A penalty clause or genuine pre-estimate of
loss?

51. Any Questions?