The document summarizes recent developments in UK employment law regarding managing employment risk. It discusses discrimination law updates, including harassment related to a protected characteristic. It also discusses an employer's duty to make reasonable adjustments for disabled employees based on two recent cases. The document also summarizes proposed changes to collective redundancy consultation rules and provisions in the Enterprise and Regulatory Reform Bill relating to employment law.

1. Managing your employment risk
Naeema Choudry, Partner
14 September 2012

2. Agenda
• Discrimination Update
• Latest developments in restructuring and redundancies
• Enterprise and Regulatory Reform Bill

3. Harassment related to a protected
characteristic
• Unwanted conduct “related to” a protected characteristic:
– Encompasses claims based on association or perception
• Third party harassment – the “three strikes” rule:
– Employer liable for repeated discriminatory harassment
of their staff where inadequate steps have been taken
to prevent it
– Currently, Gov’t consultation to revoke this provision
• Note – even if this change is adopted, may not put
an end to claims linked to third party harassment...

4. Duty to make reasonable adjustments
• Cordell v FCO, EAT 2011
– Profoundly deaf employee seeking English lipspeaker
support in an overseas diplomatic post at a cost of
£250,000 p.a.
– EAT held that the employer’s failure to make
adjustments was not unreasonable due to the high
costs involved
– Whilst cost is not decisive in deciding whether an
adjustment is reasonable, this does not mean that it is
not relevant
– C’s treatment was not because of her disability, but due
to the costs of the necessary adjustments

5. Duty to make reasonable adjustments
• Lancaster v TBWA Manchester, EAT, 2011
– Employee with panic disorder and social anxiety
disorder
– Should subjective redundancy selection criteria relating
to communication skills be removed?
– EAT held the employer did not breach its duty to make
reasonable adjustments by failing to adjust its
redundancy selection criteria
– Any such adjustment would not have prevented that
employee from being selected in any event

6. Redundancies: is a reduction in
headcount required?
• Packman t/a Packman Lucas Associates v Fauchon
– Claimant (Fauchon) provided book-keeping services
– Diminishing need for book-keeping services due to IT
software
– Claimant refuses to work reduced hours and is
dismissed
– ET finds unfair dismissal and Claimant entitled to
redundancy pay
– EAT upholds decision – focus should be on employer’s
requirement for employees generally to carry out work
of a particular kind – not a reduction in headcount

7. Consultation on proposed changes to
collective redundancy rules
• June 2012 – BIS announced a consultation on collective
redundancies with a view to “revitalising” the rules on
collective consultation
• Consultation closes on 19 September 2012
• Three objectives:
– 90 day minimum consultation period will be reduced to
either 30 days/45 days for 100 or more employees
– Introduction of non-statutory code of practice
– Improved government guidance

8. Enterprise and Regulatory Reform Bill
2012-13
• Introduced 23 May 2012
• Part 2 concerns employment law:
– Pre-claim ACAS conciliation – mandatory new procedure
– Unfair dismissal compensatory award: power to vary
statutory cap
– Appointment of Legal Officers
– Employment Appeal Tribunal judges to sit alone
– Settlement agreements
– Financial penalties for losing Respondents
– Whistleblowing must be done in public interest
– Indexation of a week’s pay

9. Enterprise and Regulatory Reform Bill
2012-13 (cont/d)
• Part 5 addresses the “reduction of legislative burdens”
including from an employment perspective:-
– Curbing the duties and powers of the Equality and
Human Rights Commission;
– Giving the government the power to include sunset and
review clauses in secondary legislation

10. Enterprise and Regulatory Reform Bill
2012-13 (cont/d)
• 20 June 2012 – government announced further proposals on
director’s remuneration including:
– A binding vote on future remuneration policy at least every 3
years
– Shareholder approval will be required if the directors wish to
change the policy
– Details of a company’s approach to exit payments to be
included in the future remuneration policy and therefore
subject to the binding vote
– When a director leaves, the Company will be required to
announce the amount the director received

11. Any Questions?