1) The document provides an update on recent changes to UK employment law and proposed reforms currently under consultation. 2) It summarizes the status of 15 proposed reforms to employment tribunals, including increasing fees to commence claims and reducing the minimum consultation period for collective redundancies. 3) The case law update summarizes recent rulings on topics like redundancy selection criteria, social media postings, TUPE transfers, discrimination based on marital status, and the justification of age discrimination in the Seldon v Clarkson retirement case.

1. Employment Law Update Seminar
5 July 2012
Peter Stevens, Nicola Brown & Anna Rabone

2. Topics
• Details of changes to the law, and proposed
reforms that are currently under
consultation
• Update on recent case law
• The Seldon case and what this means for
retirement

3. Tribunal reform

4. Status of reforms (1)
1. Increase in qualification period for unfair
dismissal rights
 In force 6 April 2012
2. Fines for employers
• Not in force yet but this is in Enterprise and
Regulatory Reform Bill (“ERRB”). Employers
who lose a tribunal case will pay a fine, if the
breach in question has "one or more
aggravating features"

5. Status of reforms (2)
3. Deposit orders and costs
 In force 6 April 2012
4. Fees to commence ET claims
• Consultation closed on 6 March 2012.
Expected to come into effect in April 2013 or
2014

6. Status of reforms (3)
5. Protected conversations
• Sneaked into the ERRB but limited in scope
6. Tribunal lay members
 Judges sit alone in unfair dismissal cases (took
effect from 6 April 2012)
7. Witness statements taken as read
 Took effect on 6 April 2012

7. Status of reforms (4)
8. Role of Acas (early conciliation)
• Part of the ERRB
9. Regional mediation networks
• Trials underway for 12 months in Cambridge
and Manchester
10.Rapid resolution of simple claims
• Part of ERRB

8. Status of reforms (5)
11.Schedule of loss from outset of claim
x Guidance to be reviewed, but claim form to
remain as it is unless other measures fail
12.Increase in statutory caps
 Maximum compensatory award increased on 1
February 2012
• New proposal to reduce compensatory award!

9. Status of reforms (6)
13.TUPE service provision changes
• Call for evidence closed on 31 January 2012

10. Status of reforms (7)
14. Collective redundancy consultation
• Call for evidence closed on 31 January 2012
• Consultation closes on 19 September 2012
• The 90-day minimum consultation period will
be reduced to either 30 days or 45 days for
redundancies of 100 or more employees. A
code of practice will be introduced

11. Status of reforms (8)
15.Compromise agreements
 Anomaly in Equality Act 2010 now gone
• To be renamed “settlement agreements”
16.‘No fault dismissals’
x Rejected

12. Reforms: Equality Act 2010
• Consultation on:
• The rules on third-party harassment
• The Tribunals' wider powers to make
recommendations in discrimination cases
• The questionnaire procedure for
obtaining information
• Consultation closes on 7 August 2012

13. Case Law Update (part 1)
Anna Rabone

14. Pool of one
Halpin v Sandpiper Books
• Mr Halpin had a role in China to develop sales in
the market
• The work was outsourced and Mr Halpin was
made redundant
• Pool of one - unique position dealing solely with
sales in China
• EAT agreed with Tribunal’s ruling – decisions as to
pools and criteria are matters for management
and a Tribunal will rarely interfere with them

15. Suitable alternative jobs
Readman v Devon Primary Care Trust
• Mrs Readman, a nurse, was put at risk of
redundancy and offered 3 alternative posts
• 1 post was correctly deemed ‘suitable’ by the
Tribunal
• Mrs Readman refused the post
• Employers did not pay redundancy
• EAT overturned decision of Tribunal – Mrs
Readman had a sound and justifiable reason and
acted reasonably in her refusal

16. Selection criteria –
Mitchells of Lancaster (Brewers) Ltd v
Tattersall
• Redundancy based on assessing which role in
that team could be lost with the least effect on its
business
• EAT upheld unfair dismissal (flawed procedure)
but disagreed with criticism of subjective
selection criteria

17. No reduction in headcount –
Packman v Fauchon
• Employee a book-keeper
• Employer experienced a downturn in business
and introduced new accountancy software
• Employee asked to reduce hours – she refused
and was dismissed
• No reduction in headcount = no redundancy?
• If the amount of work available for the same
number of employees is reduced, then the
subsequent dismissal is for redundancy

18. Social media (1) –
Whitham v Club 24 T/A Ventura
• Comment on Facebook profile that she worked in
a “nursery”
• Dismissed after a disciplinary on the basis her
comments could damage the reputation of
company
• Unfair dismissal claim upheld because employers
did not have a social media policy and comments
innocuous and only visible to Facebook friends

19. Social media (2) –
Preece v JD Wetherspoons Plc
• Contrasting case to Whitham v Club 24 T/A
Ventura
• Fair dismissal after employee posted comments
on Facebook
• Employers had a clear internet and email policy
which specifically cited use of social media

20. Social media (3) –
Teggart v TeleTech UK Limited
• Employee posting obscene comment about a
female colleague
• Colleague heard about this and asked him to
remove the comment – a further obscene
comment was posted
• Employers were made aware and dismissed
• Dismissal was justified

21. TUPE (1)
Abellio London v CentreWest London Buses
• Bus route changed to different company who
intended to operate from a different depot
• Service provision change
• Employees objected to new location and resigned
• Substantial change to working conditions (even
though only 5-6 miles away)
• Automatically unfair

22. TUPE (2) –
Johnson Controls v UK Atomic Energy
Authority
• The claimant was a taxi administrator who
booked taxis on behalf of the client (UK Atomic
Energy Authority)
• The service was taken back in house with
secretaries arranging taxis
• Tribunal held there was no service provision
change as services essentially different - EAT
agreed

23. TUPE (3) –
Seawell v Ceva
• Mr Moffat spent 100% of his time on a client
contract
• Contract terminated by client and work taken
back in-house
• Tribunal held TUPE applied - Mr Moffat could
comprise ‘an organised grouping of employees’
• The EAT disagreed - an organised grouping of
employees denotes a deliberate putting together
of a group of employees for the purpose of the
client work

24. TUPE (4) –
LOM Management v Sweeney
• A pub lease was assigned to a new tenant
• The claimant no longer had a job at the pub
• The question was whether there had been a
TUPE transfer - Tribunal found there was and that
the claimant had been automatically unfairly
dismissed
• EAT reversed decision – assignment of
commercial lease does not in itself establish that
TUPE applies

25. Case Law Update (part 2)
Discrimination
Nicola Brown

26. Entitlement to information
Meister v Speech Design Carrier Systems
• Ms Meister’s application for software developer
role rejected without interview
• Claims brought for discrimination on sex, age and
ethnic origin
• Requested information about successful person
• CJEU – no entitlement to information BUT could
lead to an inference
• UK - Questionnaire process

27. Marital status
Dunn v Institute of Cemetery and
Crematorium Management
• Dispute over contractual terms
• Husband worked for same employer – his
relationship with them was strained
• Mrs Dunn resigned and claimed sex discrimination
- she contended she was less favourably treated
because of who she was married to
• ET said not due to marital status – not unlawful
• EAT said this could constitute unlawful treatment

28. Marital status
Hawkins v Atex Group
• Employer policy prohibiting employment of close
relatives
• Mrs Hawkins (and daughter) were dismissed as
her husband managed the company
• Employment Tribunal struck out her claim
• EAT agreed - the decision to dismiss applied to
the Claimant and her daughter, and was not
motivated by the fact that the Claimant was
married to her husband
• Doubted the authority in Dunn

29. Hostile words
Warby v Wunda Group plc
• Dispute about wages
• Manager and employee both convinced each
other were lying about what had been agreed
• During meeting, manager asked why employee
had lied about miscarriage
• Claim for unlawful harassment based on
comments
• Tribunal agreed harassment environment created,
but motivation was the belief the employee was
lying, not pregnancy

30. Sexual orientation
Grant v HM Land Registry
• Claimant was ‘out’ at his original workplace
• Moved to another site but did not reveal his
sexuality there
• Manager mentioned his sexuality to a new
colleague – Claimant alleged this was harassment
• Court of Appeal –no ill purpose, therefore no
discrimination, even if the Claimant was upset.
• However, in appropriate circumstances, ‘outing’
someone could be direct discrimination and/or
harassment

31. Justifying discrimination
Woodcock v Cumbria PCT
• Chief Executive displaced on restructure
• Given notice of redundancy before formal
consultation began – so that it expired before his
50th birthday, when he would have gained a
pension enhancement
• Less favourable treatment on age grounds
• Justified?
• Proportionate means of achieving a legitimate
aim – costs saving CAN be enough on its own

32. Indirect age discrimination
Homer v Chief Constable of W. Yorkshire Police
• Grading structure put in place – highest grade
required a law degree
• Homer 62 at time and retiring at 65 so no time to
obtain law degree before retirement
• Claim rejected by EAT and Court of Appeal – was
disadvantage of impending retirement, not age
• Supreme Court upheld Homer’s appeal – was
indirect age discrimination, but employer may be
able to justify
• Back to the Tribunal to look at justification

33. Retirement
Seldon v Clarkson Wright and Jakes

34. Retirement
Seldon v Clarkson Wright and Jakes
• Supreme Court judgment in April 2012
• It is possible for employers to justify forced
retirement in some circumstances
• 1) Ensuring that junior employees have the
opportunity for promotion
• 2) Facilitating long term planning
• 3) Limiting the need to expel partners for poor
performance (creating a congenial culture)

35. Retirement
Seldon v Clarkson Wright and Jakes
• Justification test – proportionate means of
achieving a legitimate aim
• Need a social policy objective with a public
interest in order to justify direct discrimination
• All 3 are capable of being legitimate aims
• Back to the Tribunal to decide whether retirement
at 65 was a proportionate means of achieving
those aims
• Bearing in mind the situation in January 2006

36. Retirement
Seldon v Clarkson Wright and Jakes
Implications
• Do you need a retirement age?
• If you have one, which age do you pick and what
would your reasons be?
• Dealing with ill health and performance issues
• The future of retirement

37. Any Questions?