Employment law update for CIPD tutors and students

January 2011

Employment law update for

CIPD tutors and students
January 2011

Employment law update for CIPD tutors and students: January 2011

Written by Stephen Taylor, CIPD Examiner for Employment Law and Senior Lecturer in HRM, Manchester Metropolitan University Business School. This document is intended for tutors and students studying the employment law module of CIPDs Advanced Level Qualifications and Professional Development Scheme. Those studying the CIPDs Intermediate Level Qualifications and HR practitioners may also find it useful. It provides a comprehensive update at the time of writing on the most important employment law developments in the UK and anticipates the further changes that lie ahead. It is planned to update it every 6 months. CIPD members can keep up to date with legislative and case law developments since this document was written at the Employment Law at Work area of the CIPD website Non-members can see our Employment law developments factsheet which covers major law changes.

ii

Employment law update for CIPD tutors and students: January 2011

Contents
Introduction The Coalition Government Employment tribunal claims Recent statutory developments Acas code of practice on time off for trade union activities Blacklists of union activists SMP, SPP, SAP and SSP rates Right to request time off for training Fit notes Immigration limits Equality Act 2010 National Minimum Wage Bonfire of the quangos Abolition of the two-tier code Significant developments in case law Sexual harassment Age discrimination TUPE Redundancy consultation Disability discrimination Constructive dismissal Industrial action Equal pay Summary dismissal Mandatory retirement Other interesting cases Future developments Unfair dismissal compensation Abolition of mandatory retirement Additional paternity leave Bribery Act 2010 SMP, SPP, SAP and SSP rates Positive action in recruitment and promotion Right to request flexible working Royal wedding New rights for agency workers Parental leave New pension rules Other future possibilities References Useful contacts 1 1 2 3 3 3 4 4 4 4 4 7 7 7 8 8 8 9 9 9 10 10 12 12 13 14 16 16 17 17 18 19 19 19 19 19 20 20 21 21 21

iii

Employment law update for CIPD tutors and students: January 2011

Introduction
The Coalition Government
At present there is a need for caution when setting out future developments in employment law.
Already there have been several instances of ministers stating an intention to do something, only to
withdraw it soon afterwards. There are also a number of reviews and consultations that are in progress,
the outcomes of which are yet to be fully announced.
It is also clear that most planned changes in the field of employment are having to be negotiated within
government and that compromises are having to be made. This makes it hard to predict what exactly is
going to happen beyond next summer. The reasons are as follows:
the Conservative and Liberal Democrat manifestos differed in important respects on some areas of employment policy there was little in the post-election Queens Speech on employment matters, suggesting that little major legislation beyond that which was already in the pipeline is planned for 2011 the Coalition Agreement is quite vague on employment regulation, simply making general pronouncements of intent. The Coalition Agreement which was negotiated in the days following the general election contained the following: The Coalition Government plans to phase out the 'default' retirement age of 65. The Coalition Government supports the need to introduce extended paternity leave along the lines proposed by the previous Labour government. The Coalition Government aims to retain the UK's opt-out system from the 48 hour working week. The Coalition Government aims to extend the right to request flexible working. The Coalition Government is committed to ending 'gold-plating' of European Union (EU) laws when transposing principles into UK legislation. The Coalition Government plans to put an annual cap on the number of migrants from outside the EU entering the UK to work. There is also a general commitment in the Coalition Agreement to 'review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive'. A number of reviews of relevance to employment regulation are now ongoing / have recently reported that may lead to changes in employment law over the longer term: o o o o

health and safety law under Lord Young poverty under Frank Field MP public sector pensions under John Hutton public sector pay under Will Hutton

There is also a proposal to 'look to promote gender equality on the boards of listed companies'. The Coalition Government has also stated that it wishes to regulate in order to deter the payment of 'unacceptable' bonuses in the financial sector.

Employment law update for CIPD tutors and students: January 2011

Before the general election the Conservative Party advocated the following measures aimed at 'de-gold-plating' existing / proposed EU law : o amending the agency workers regulations o removing the 'service provision' elements from TUPE o reviewing regulations on part-time and fixed term workers The Conservatives also argued for a 'one law in one law out' approach to business regulation and were also committed in general terms to reviewing the employment tribunal system with a view to making it simpler and more efficient. They also announced plans for incentives aimed at encouraging employers who were making redundancies to help employees find new jobs (that is by engaging outplacement consultants?) Pre-election, the Liberal Democrats advocated the use of 'name blind' application forms in recruitment situations. The Liberal Democrat manifesto contained a commitment to extend the right to request flexible working to all employees. Some of this will happen, other parts will not. It is all going to depend on what is agreed by ministers who have rather different approaches to employment regulation. It is worth pointing out, however, that almost all of the ministerial posts that directly relate to employment law matters are held by Liberal Democrats rather than by Conservatives: Business Secretary: Equalities Minister: Pensions Minister: Employment minister: Vince Cable MP
Lynne Featherstone MP
Steve Webb MP
Ed Davey MP

This may well mean that Liberal Democrat priorities get more of a look in than Conservative ones in this area of government policy. For example, although ministers have re-stated their commitment to the 'one in one out' policy on employment law, there is no sign whatever of any significant repeals being introduced as yet. This may yet happen as a result of the setting up by ministers of a website called Your Freedom on which people could leave suggestions for regulations that they think ought to be repealed. The website has now closed.

Employment tribunal claims

The other issue worth highlighting is the recent, very considerable growth in the number of employment tribunal claims that are being lodged. In July 2010 the Employment Tribunal Service (ETS) published its annual report, including the statistics on the cases dealt with between April 2009 and March 2010. These are usually unremarkable, but this year there were some interesting surprises. The most striking finding was that the number of claims submitted to (and accepted by) employment tribunals increased hugely last year to 236,100. This represented an increase of 56% on 2008-9. The extent of growth over time is enormous. Ten years ago the figure was just 103,935 and twenty years ago a mere 34,703, reflecting increases in both the amount of employment regulation and the willingness of employees to pursue grievances against their employers in court. This year's rise is accounted for partly by a rise in multiple claims (that is, groups of claimants pursuing the same case against their employer on a collective basis) and partly by rises in the number of cases related to dismissal.

Employment law update for CIPD tutors and students: January 2011

The number of dismissal claims always rises in a period of recession and for a few years afterwards. This is because more people are dismissed as redundancy programmes take effect and also because dismissed employees typically take much longer to find new jobs. Moreover, as the level of compensation awarded to winning claimants in unfair dismissal cases is determined in large part by the extent of their lost earnings, recessionary conditions also mean that former staff are more likely to consider it worth their while to pursue a claim than they would if they found a new job within a few weeks of being dismissed. The ETS also reported increases in the level of the awards they made to successful claimants. In unfair dismissal cases the average award made in 2009-2010 was 9120. The figures for discrimination claims were, as always, rather higher reflecting the practice of making awards for 'injury to feelings' in such cases as well as for financial losses. The average awards made in cases relating to sex, race and sexual orientation discrimination was close to 19,000. It was rather lower for religious and age discrimination (5000) but much higher in cases concerned with disability discrimination (52,087). The biggest award made by an employment tribunal was 729,347. This was made to a sports journalist who was sacked while he was on leave suffering from a breakdown that had been caused by bullying at work. The report also confirms how very rare it remains for either claimants or respondents in tribunal cases to have costs awarded against them. This really only happens when a party insists on pursuing a completely hopeless claim and it only happened in 412 cases last year.

Recent statutory developments

Acas Code of practice on time off for trade union activities
From 1 January 2010 a revised Acas Code of practice on time off for trade union duties has applied, replacing the last one issued in 2003. There are no major changes of substance. The revised Code takes account of e-learning (urging its use where possible by union officials for training purposes) and asks employers to provide areas for confidential discussions to take place between union officials. The revised Code also states that it is not necessary in most cases for employers to pay for time spent by union officials on union business outside normal working hours.

Blacklists of union activists

Since 1990 the law has sought to protect freedom of association by making it unlawful to fail to recruit (or re-recruit) someone for a reason related to their membership or non-membership of a trade union. At present this only covers trade union membership. Employers can still refuse to employ people because of their past record of trade union activity. The Employment Relations Act 1999 gave the Government the right to issue Regulations prohibiting the maintenance of blacklists of union troublemakers by employers or employers associations. This right was not exercised for over a decade on the grounds (according to ministers) that blacklisting was no longer as common as it was in the 1980s and 1990s. In May 2009, however, it was announced that new Regulations outlawing blacklisting of this kind would soon be issued. This followed a finding by the Information Commissioner against the maintenance of a secret blacklist by a group of employers in the construction industry. The Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493) came into force on 2 March 2010.

Employment law update for CIPD tutors and students: January 2011

SMP, SPP, SAP AND SSP rates

From 4 April 2010 the rates for Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) and Statutory Adoption Pay (SAP) rose to 124.88 a week. The rate of Statutory Sick Pay (SSP) remained at 79.15 in 2010, but the lower earnings threshold below which an employee does not have the right to SMP, SPP or SAP rose to 97 a week.

Right to request time off for training

This right to request time off for training which came into force on 6 April 2010 applies to organisations that employ over 250 people. The legislation (passed by the Labour Government) envisages an extension to smaller employers from April 2011. This is still under review by Coalition Government ministers and may not in practice be implemented in full. Smaller employers may well be exempted. The right is restricted to employees who have completed six months' service. It operates in a similar way to the existing right to request flexible working. That means one opportunity a year to make a quite specific request and a duty on employers to treat such requests seriously. The same eight reasons that exist for legitimately turning down requests to work flexibly apply for these requests too. Time-off will be unpaid unless the employer wishes to contribute. Similarly, employers are not obliged to contribute to any of the training costs.

Fit notes
The existing and very long-established sick note scheme run by the Department of Health was replaced from 6 April 2010 with a new scheme. Doctors will now be able to certify that an employee is unfit for work or 'may be fit for some work, taking account of the following advice'. They will also be able to suggest ways of helping an employee get back to work. The aim is to reduce absence rates by making it harder for employees to take time off 'sick' when in truth they are fit to carry out some, if not all, of their duties.

Immigration limits
In July 2010 the Home Office announced that in order for would-be migrants from non-EU countries to enter the UK to work under Tier 1 (formerly the highly skilled migrant programme), 100 points would be required rather than 95. In November 2010 the Government reaffirmed its intention to cap non-EU immigration from April 2011. The intention is that in 2011-12, only 21,700 will be admitted under Tier 1, a further 20,700 under Tier 2, and 1000 under a new 'exceptionally talented' category. Caps for the other tiers are yet to be announced.

Equality Act 2010

Most of the employment-related provisions of the new Equality Act 2010 (The Act) came into force on 1 October 2010. It was brought forward by the Labour Government and received Royal Assent just before it lost power at the General Election. The new Coalition Government is introducing it in two slices - October 2010 and April 2011 - but has apparently decided to abandon some of the more controversial measures.

Employment law update for CIPD tutors and students: January 2011

As is often the case with new pieces of employment law, a great deal has been written about the Act which tends to shed more heat than light and which over exaggerates its practical significance for employers. The truth is that the Act, while being huge in terms of its volume, creates precious few new employment rights of any great significance. For the most part it is simply concerned with: consolidating diverse pieces of equality legislation into one single statute ensuring that our statutes catch up with recent developments in the case law, and particularly decisions of the European Court of Justice harmonising the terminology that is used across different areas of equality law clarifying the law in areas where things have not always been so clear in the past. The following is a list of the main employment-related changes that came into force on 1 October 2010: Discrimination against people on grounds of gender reassignment and pregnancy and maternity were explicitly added to the existing list of 'protected characteristics'. The full list of protected characteristics reads as follows: o age o disability o gender reassignment o marriage and civil partnership o pregnancy and maternity o race o religion or belief o sex o sexual orientation. The requirement for gender reassignment to be occurring 'under medical supervision' at the point of discrimination in order for an individual to be able to bring a claim has been removed. The wording of the definition of direct discrimination has been changed, though not the legal meaning. The new wording is 'less favourable treatment because of a protected characteristic'. This means that associative and perceptive discrimination in respect of all the protected grounds are now included. Associative and perceptive discrimination, as well as harassment laws, do not however apply in the case of civil partnerships and marriages. Pregnancy and maternity are also excluded as grounds that can lead to harassment claims. The need for a comparator in victimisation claims has been removed. It is now simply sufficient to demonstrate that a detriment has been suffered for a reason related to the employee's actions. The principle of indirect discrimination, long established in the fields of sex and race discrimination and present in the more recent discrimination laws has been extended to cover disability discrimination. This measure could have the most impact in practice. The highly controversial 'Malcolm judgement' has been overturned with the creation of a new type of disability discrimination labelled 'discrimination arising from disability'. There is therefore now no requirement for a disabled person to establish that they have been treated less favourably than any comparator. The statutory definition of a 'disability' has been amended so that there is no longer a need to show that someone's impairment affects one of eight named 'bodily functions'. The requirement for a condition to have an adverse effect on 'normal day to day activities' remains, but a wider range of conditions will now potentially be covered. The exclusions for socially undesirable mental conditions remain, with voyeurism being added to the list. Hay fever, however, can now potentially give rise to claims.

Employment law update for CIPD tutors and students: January 2011

Confusion in the previous disability discrimination law is clarified by stating that an employer will not be committing an act of disability discrimination if at the time it could not reasonably have been expected to know about an employee's disability. Extends disability discrimination to cover situations in which otherwise suitable job applicants are rejected after having been asked questions about their health, having completed health questionnaires or having undergone medical examinations. There are, however, several situations specified in the Act in which health-related questions can be asked lawfully, including those in which a significant part of a job could not be carried out by someone with a particular disability even if reasonable adjustments were made. Equal pay law has been amended in mainly minor ways to make it more easily understood and to bring occupational pensions fully within its remit. 'Comparators' are now 'colleagues' while 'genuine material factors' are now simply 'material factors'. Contractual 'pay secrecy' clauses have been made unenforceable in a bid to make it easier for colleagues to find out how their pay compares to that of their colleagues. The power of employment tribunals is increased to make recommendations about an employer's practices in rulings on discrimination matters so that they apply across a whole workforce and not just the individual claimants. There is a specific reference to 'third party harassment', which means unlawful harassment perpetrated on a member of staff by a customer or a supplier, or anyone else who is not a fellow employee. This makes the employer liable if it knows about the harassment and has not taken 'reasonably practicable steps' to stop it from happening. It must, however, have occurred on at least two previous occasions before the employer becomes legally liable. Lawyers specialising in equality law have also spotted that the Act, whether intentionally or not, opens up a new potential avenue for claimants to pursue when they consider that they are not being paid equally vis a vis someone of the opposite gender. The argument runs as follows: It may become possible for a claim that relates to pay and which before October 2010 would have to have been brought under the Equal Pay Act 1970 to be able to be brought instead under the regime that formerly applied under the Sex Discrimination Act 1975. If so, this will mean that a woman seeking to demonstrate that she is underpaid will no longer have to cite a male comparator (or vice versa). Instead she will simply have to demonstrate that 'but for her sex she would have been treated more favourably'. If this proves to be a runner in practice, it raises the possibility that 'injury to feelings' awards will now be made in equal pay cases in addition to back-pay, increasing substantially the compensation that a successful claimant can win and therefore encouraging many more speculative claims to be made. What employers need to do Whenever new law comes into force, substantial numbers of test cases are brought which seek to clarify exactly what the impact will be. Until these have run their course it makes sense for employers to err on the side of caution so as to avoid tribunal actions. Employers should review any existing policies and practices which could have a general, adverse impact on people who suffer from a particular disability - unless they are confident that these can be objectively justified. Employers who currently issue a pre-employment health questionnaire or take account of health records when selecting new staff should stop doing so. They should only ask such questions of candidates who have a disability which may well prevent them from carrying out a role and which they would still be unable to carry out even if reasonable adjustments were made to it. Employers should review any written equality policies to ensure that they include reference to discrimination by association (that is, discrimination against someone who is related to or friendly with people who have protected characteristics) and by perception (that is, 6

Employment law update for CIPD tutors and students: January 2011

discrimination against someone who does not have a protected characteristic but is thought to). In the case of harassment policies reference should also be made to third-party harassment and training given to managers so that they recognise this and know how to deal with it when it happens. Employers should take additional care not to discriminate or be seen to discriminate against a transsexual person. Employers should amend contracts of employment (by writing to the employees concerned) to remove any pay secrecy clauses.

National Minimum Wage

From 1 October 2010 the rates of the National Minimum Wage were increased as follows: Adult rate: Lower rate: Youth rate: Apprentice rate: 5.93 4.92 3.64 2.50

The accommodation offset rose to 4.61 per day.

The adult rate now starts on a worker's 21st birthday rather than their 22nd.

Bonfire of the quangos

In October 2010 the Government announced the abolition of nearly 300 government-funded bodies known as 'quasi-autonomous non-government organisations' or quangos. However, pretty well all of those that play a part in the employment law system survived, although changes were made to some of their remits. On the survival list, at least for the time being, are: Acas Equality and Human Rights Commission Health and Safety Executive Information Commissioner Low Pay Commission The Central Arbitration Committee (CAC) and the Certification Officer's Office will merge to form a single quango.

Abolition of the 'two-tier' code

Under TUPE regulations special rules have applied to private sector organisations which take over services previously provided by a public sector agency (that is public private outsourcing). Under these rules even after the transfer, new employees had to be employed on 'no less favourable conditions' than their former public sector colleagues. The statutory code was withdrawn in December 2010 and replaced with a voluntary code which merely urges reasonableness and consultation with recognised trade unions.

Employment law update for CIPD tutors and students: January 2011

Significant developments in case law

This section is structured as a 'top ten countdown' of case law ranked broadly in order of their practical significance for day to day human resource management. In 2010 however, there were only eight areas of genuine significance to report.

10. Sexual harassment

Munchkins Restaurant Ltd and another v Karmazyn and others (unreported, UKEAT/0359/09 28 January 2010, EAT) This case concerns the relatively common situation in which sexual banter is prevalent in a workplace over a long period, subsequently leading to sexual harassment claims. Here, four waitresses claimed that they had resigned due to unwanted remarks of a sexual nature having been directed to them regularly by the owner of the business. The defence offered was that the conduct complained of cannot have been 'unwanted' because the women concerned had remained employed at the restaurant without complaining and had on some occasions initiated sexual banter themselves. The Employment Appeal Tribunal found for the women, ruling that sometimes people put up with such an atmosphere and will not complain even though they object because they fear the potential consequences of complaining. This should not be taken by an employer as proof that the banter is welcomed.

9. Age discrimination
Woodcock v Cumbria Primary Care Trust (unreported, UKEAT/0489/09 12 November 2010, EAT)
Kraft Foods UK v Hastie [2010] ICR 1355, EAT)
Ingeniorforeningen i Danmark acting on behalf of Andersen v Region Syddanmark (unreported,
C-499/08 12 October 2010, ECJ)
Two cases decided in the UK courts found for employers justifying actions which involved age-related discrimination, while a European Court of Justice (ECJ) decision was much more helpful from an employee perspective. The cases all concern the paying of so-called 'windfalls'. In the Woodcock case the employer sped up an employees redundancy, dismissing him before completing a full redundancy consultation. The reason was to sack him before he accrued entitlement to an enhanced pension. In other words they got rid of him early to save the costs associated with paying him a pension that he would otherwise have been due in addition to his redundancy payment. The justification offered was thus largely to achieve financial savings. He would have received a 'windfall' had he got both the redundancy payment and the enhanced pension. The employer won the case both in the employment tribunal and again subsequently at the Employment Appeal Tribunal (EAT). Windfall avoidance was found to be a potential justification for indirect age discrimination. A similar situation arose in the Hastie case. The employer had a scheme in place that tapered redundancy payments downwards as employees approached retirement. Again the purpose was to avoid paying 'windfalls' in the form of large redundancy payments to staff who were due to retire soon on a pension. The claimants redundancy payment was capped at a sum equal to that he would have earned had he continued to work until 65. The EAT agreed with the employer that this policy represented 'a proportionate means of achieving a legitimate aim.' However, more recently the ECJ ruling in the Andersen case casts some doubt on how long these UK precedents will remain good law. This case relates specifically to a Danish law which stipulates that employers can avoid paying redundancy payments when the people they dismiss are due to receive a pension paid for by the employer that is, prevents entitlement to a double payment / 'windfall'.

Employment law update for CIPD tutors and students: January 2011

Here, the ECJ found against the Danish government. It said that employees should have the right to waive the pension and continue working if they wish to. To deny such a person their severance payment amounts to age discrimination which is not justifiable. The situations are not identical. But this case does at least cast some doubt on the two earlier judgements in the EAT.

8. TUPE
Parkwood Leisure Ltd v Alemo-Herron and others [2010] IRLR 298, CA
Worrall and others v Wilmott Dixon Partnership Ltd (unreported, UKEAT/0521/09DM 9 July 2010,
EAT)
These two cases concern situations in which collectively agreed terms and conditions transferred with employees at the time of a TUPE transfer because the relevant collective agreement had been incorporated into their individual contracts of employment. The situations were where private sector organisations have taken over part of the activities of public authorities. In both cases, the Court of Appeal and the Employment Appeal Tribunal respectively, decided that a 'static' approach needed to be taken, whereby only the elements of a collective agreement that were in force at the time of a transfer need transfer with the employees. Subsequent changes made in negotiations with trade unions do not apply once people have transferred. The Supreme Court will hear a further appeal on this matter by Alemo-Herron in 2011.

7. Redundancy consultation
Pinewood Repro Ltd v Page (unreported, UKEAT/0028/10 13 October 2010, EAT) This is an important case with implications for employers who use matrix-type scoring systems to select employees in a pool for redundancy. Here the employer used a variety of criteria, some subjective in nature, others more objective (absence rates, productivity etc). One of the subjective criteria was 'flexibility'. The claimant scored very poorly on 'flexibility' and during his consultation meetings he asked why this was. No answer was given. He was not therefore in a position to challenge the score he had been given. Subsequently, having been made redundant, he brought an unfair dismissal claim to an employment tribunal and won. The employer had not consulted fully because it had not shared with the claimant the reasoning behind his low score on a subjective measure. The decision was upheld by the Employment Appeal Tribunal.

6. Disability discrimination
Chief Constable of South Yorkshire v Jelic [2010] IRLR 744, EAT A police officer developed chronic anxiety syndrome. This meant that he was unable to work in roles which gave him much by way of face to face contact with the public in case a confrontational situation developed. As a result he had been given a back office role. Over time however, his job evolved and more public contact was required. He was unable to cope and was referred to a doctor. The medical report confirmed that his condition was likely to be permanent, so he was medically retired. Subsequently the officer brought a disability discrimination claim, part of which rested on the contention that the police should have given him a different job, despite no vacancy being available at the time. In other words, he argued that a job swap with another officer should have been brought about in order to enable him to continue working. Not to have considered this amounted to a breach of the duty to make reasonable adjustments.

Employment law update for CIPD tutors and students: January 2011

The Employment Appeal Tribunal agreed with the officer. They distinguished between a job swap situation and one in which a new job is created purely for the purposes of keeping a disabled person in employment. The latter is not reasonable, the former can be. Also relevant here was the view that the police force, being highly disciplined, gave managers the option of simply ordering someone to swap jobs with the officer. It was accepted that this might not always be a practicable possibility.

5. onstructive dismissal C
Buckland v Bournemouth University Higher Education Corporation [2010] IRLR 445, EAT In this case the Court of Appeal cleared up two areas of confusion that emanated from judgements of lower courts pointing in different directions. The case concerned a professor who resigned after a set of exams he had marked (many being failed) were re-marked in order to secure a higher pass rate without consulting him. He subsequently made a formal complaint to the University's 'executive group' who set up an enquiry which vindicated him and criticised his manager. In any event, concerned that his integrity had been questioned, he decided to resign and claim constructive dismissal. The University defended itself on two counts: 1. Even though there had been a breach of trust and confidence, its actions were nonetheless justified as falling within the band of reasonable responses, and 2. In setting up an inquiry which vindicated the professor, the University had 'cured' its initial breach. On both counts the Court of Appeal found against the University and for the professor. Repudiatory breaches cannot subsequently be 'cured' and the band of reasonable responses test is irrelevant to the question of whether or not a repudiatory breach has or has not occurred.

4. Industrial action
Metrobus v Unite the Union [2009] IRLR 851, CA British Airways v Unite the Union (2) [2010] IRLR 809, CA There have been a number of instances in the last year or two in which employers have successfully applied to the High Court for interlocutory injunctions which have the effect of postponing strike action because of balloting irregularities. High profile cases have involved railway engineers, airline cabin crew and even university lecturers. In each case managers successfully petitioned the High Court to issue an injunction which, in effect, prevented strikes from going ahead. These cases all followed on from the Metrobus case which was originally decided in July 2009. Here the union appealed the decision to the Court of Appeal and lost, in the process helping to ensure that the High Court is in future likely to take a stricter line than was the norm before this case. It is helpful to set out exactly what the law says in this area: The approach used is for the employer to seek an interim interlocutory injunction in the High Court either to stop action from going ahead or to halt it once it has already started. Technically this is an emergency remedy provided by the court pending a full trial to be scheduled at a later date. In practice, however, because it serves to stop the industrial action concerned in its tracks until such time as a full hearing can take place (for example, several months later), to all intents and purposes it brings it to an end. As a result, where there are balloting irregularities, where a proposed strike involves secondary action, where it does not fall within the legal definition of 'a trade dispute' or where there is some doubt about these matters, an employer instructs its lawyers to apply for an interlocutory injunction.

10

Employment law update for CIPD tutors and students: January 2011

The tests used by the High Court in such cases have long been criticised for being too employerfriendly in that it is no longer necessary (as it used to be) for the employer to present the court with a convincing prima facie case to support the granting of an injunction. The employer is not now required to present evidence which shows that it would be likely to win a full trial. Instead it merely has to convince the court that there is 'a serious question to be tried'. Effectively this simply means showing that the employer's case is not trivial or vexatious in any way. Having established that this is so, the court goes on to consider the issue of the 'balance of convenience' in the case. (Barrow 2002, p356) sums this approach up as follows:
'It means that the court should balance the extent to which the plaintiff would not be
compensated by damages if the injunction were not granted and if he won at trial, against the
loss the defendant would suffer if the injunction were granted, if he won at trial'
As the defendant in industrial action cases (the union) inevitably nearly always stands to lose
less financially than the employer (the plaintiff) in an industrial dispute, it is not difficult for an
employer to get its injunction and for the industrial action to be stopped - provided of course there
is some legal irregularity.
The consequences for a union of failing to abide by an interlocutory injunction are very serious.
Senior officials may be fined for contempt of court (as happened to Arthur Scargill the miner's
leader in 1984) and the union itself can be fined too.
More commonly a court will order that the union's assets be sequestrated. This means that union bank accounts are frozen for the period for which the contempt lasts (that is, the duration of the industrial dispute) and until such time as a judge considers the union to have 'purged' the contempt (for example, by issuing an apology). Assets are later returned minus any fines that have been levied and, of course, legal costs. In the Metrobus case there were minor defects in the information provided on ballot papers and some irregularities in the provision to the employer of the names of those going on strike. They had also delayed 20 hours before formally informing Metrobus of the ballot result. These were pretty minor infringements, but the Court of Appeal found that they were sufficient to justify an interlocutory injunction. Importantly, in presenting its case, the Union had sought to invoke the Human Rights Act using Article 11 of the European Convention on Human Rights - the right to freedom of assembly and association as the basis for its major legal argument. In other words, it was asking the Court to rule that UK law as it currently stands breaches the Convention. In passing judgement the Court of Appeal stated that in its view the provisions in the law on balloting and notice to employers 'are not so onerous or disproportionate as to be incompatible' with Article 11. The impact of this ruling has been very substantial, allowing the High Court to grant injunctions where there have been minor infringements by unions which were unintended and also of no consequence whatever to the final outcome of ballots. However, one case this year bucked the trend and went in favour of the union. This happened in one of a number of battles between British Airways and Unite who were representing cabin crew. In May 2010, the Court of Appeal overturned an earlier High Court ruling to award an injunction against a union whose only failure was to have communicated the result of a strike ballot by text and through email rather than by letter, and to have failed to include information on the number of spoiled ballots. The Court of Appeal decided that these breaches of the regulations were mere 'technicalities' and that they should not be allowed to prevent staff from taking strike action the ballot had shown over 80% to be in favour of taking industrial action.

11

Employment law update for CIPD tutors and students: January 2011

3. Equal pay
Abdulla and others v Birmingham City Council (unreported, [2010] EWHC 3303 (QB), HC) Wilson v Health and Safety Executive [2010] IRLR 59, CA The Abdulla case led to a most significant judgement concerning jurisdiction in equal pay matters. Before, the rule had always been that equal pay matters were heard in the employment tribunal and that a time limit of six months applies. In other words, claimants must lodge their forms with a tribunal office within six months of a date at which their pay was lower than they believe it should have been. Thanks to this case this is no longer the situation, at least for employees. As equal pay is guaranteed through an implied 'equality clause' in every employment contract, breaching the statutory right also amounts to breaching a contractual right. This means, according to the High Court, that it can hear claims for up to six years after a point at which an unlawful pay situation is alleged to have been in place. In practice the impact may not be as significant as it first appears. This is because the losing side has to pay costs when breach of contract claims are brought before the County Court or the High Court. This is likely to deter anyone who is not very sure indeed of the strength of their case. The Wilson case deals with a long-standing issue in equal pay law, namely whether or not senioritybased pay scales can constitute a 'genuine material factor' justifying a difference in pay between a man and a woman doing like work. In this case the pay scale continued to reward length of service with an increment for ten years. The Court of Appeal ruled that this was too long, stating that only five years was justifiable. After that, performance would be the same and reward should be too. Five years is also the maximum permitted in principle under age discrimination law. We now know that the same principle applies to equal pay law too.

2. Summary dismissal
Weston Recovery Services v Fisher (unreported, UKEAT/0062/10 7 October 2010, EAT) This is a case which has not been widely reported but is deeply concerning from an employee perspective. It is one in a long line of cases in recent years that have widened to a number of situations in which employers can lawfully summarily dismiss without giving any notice. It brings some clarity to this area of law, but in many people's eyes it will simply serve to give employers too much of the whip hand. In a nutshell the Employment Appeal Tribunal (EAT) decided that even though an employee was found by an employment tribunal not to have been guilty of an act of gross misconduct (some seats in a mini bus were not properly secured after he had borrowed it to drive to France on holiday), it should nonetheless have found the summary dismissal to be fair. Essentially the EAT appears to have decided that 'gross misconduct' and what it represents does not need to play a part in justifying summary dismissals. All that matters is that the employer satisfies the Burchell test (that is, believes the employee is guilty and has grounds for that belief following a full investigation), gets its dismissal right procedurally and more generally acts within 'the band of reasonable responses.' This ruling therefore takes little account of the Acas Code of practice on disciplinary and grievance procedures which is where guidance on what should and should not 'count' as gross misconduct is set out. There was a twist in this case though. That occurred because the employer had a contractual disciplinary policy in which 'gross misconduct' was defined. The EAT ruled that if the employment tribunal decided that the conduct did not amount to 'gross misconduct' it must follow that there was a breach of contract in this case. The claimants claim of wrongful dismissal should therefore have been won. The potential implications of this case for employers and employees are substantial. It would appear to mark the end of the road for most claims which are based on the argument that 'my conduct was not gross enough to justify summary dismissal' unless the misconduct was of such a trivial nature to place 12

Employment law update for CIPD tutors and students: January 2011

any subsequent dismissal outside of the band of reasonable responses. Only time will tell whether other established precedents in this field concerning definitions of 'gross misconduct justifying summary dismissal' are, or are not, affected.

1. Mandatory retirement
Petersen v Berufungsausschuss fur Zahnartze fur den Bezirk Westfalen-Lippe [2011] IRLR 51, ECJ Rosenbladt v Ollerking Gebaudereinigungsges mbH [2010] IRLR 51, ECJ Martin and others v Professional Game Match Officials Ltd (unreported, ET2802438/09, ET) Seldon v Clarkson Wright and Jakes [2010] IRLR 865, CA Substantial numbers of cases considering questions relating to mandatory retirement are now making their way up the hierarchy and into the higher courts. These are now particularly significant for the UK because of the impending removal of the statutory procedure employers can use when mandatorily retiring employees. This procedure does not operate in other EU countries. Nor does it apply to non-employees (that is, workers) in the UK. Here employers who wish to maintain mandatory retirement at a fixed age must be able to objectively justify their actions. The test applied by the courts is to ask whether the mandatory retirement policy amounts to 'a proportionate means of achieving a legitimate aim'. Those who have campaigned for an end to mandatory retirement are not at all happy with the drift of the 2010 rulings. It appears that the courts are being easily persuaded by employers that they have good enough reasons for maintaining their policies. The Martin case was decided by an employment tribunal and is not binding on other courts. However it received some publicity in the summer because it concerns the lawfulness of mandatorily retiring football referees at the age of 48. The case was won by the referees. The tribunal accepted that 'succession planning' could potentially form the basis of a justification, as could 'the need to ensure a mixture of ages' and 'ensuring a career route'. In this case, however, they were not strong enough because they were only of relevance to the particular organisation. The tribunal decided that wider social policy concerns had also to play a part if an objective justification was to be made out. This interpretation of the European Court's view was subsequently scuppered in the Seldon case the most important single case of 2010. Here the Court of Appeal (CA) ruled that while social policy objectives should underpin a justification, all that mattered was that the justifications advanced by an employer were consistent with them. In other words, the justification advanced by the employer must be broadly consistent with the government's social policy aims. In this case, which concerned the mandatory retirement (at age 65) of partners in a law firm, the CA decided that the following aims were 'legitimate, fair and proportionate' and hence lawful: giving senior solicitors an opportunity to become partners facilitation of workforce planning maintaining a congenial culture whereby aging partners were not dismissed due to declining performance. There was, however, one other feature of this judgement that may well serve to distinguish it from cases relating to employees when they start to come to tribunal in 2011. This was the fact that the policy of mandatorily retiring at age 65 had been agreed by 'partners of equal standing' - that is, negotiated between partners and not imposed by managers unilaterally on staff. A similar point played a role in the decision of the European Court of Justice (ECJ) in the Rosenbladt case. Here the ECJ found in favour of an employer's practice of mandatorily retiring its staff at age 65. The fact that the policy had been negotiated with a trade union and formed part of an established collective agreement played a part in the decision to find in favour of the employer. The provision of an occupational pension was another factor they took into account, as was the fact that retired pensioners were not barred at all from working while still claiming their pensions. Here the justification advanced was based on: sharing employment between the generations 13

Employment law update for CIPD tutors and students: January 2011

avoiding dismissing older employees for reasons of capability facilitating employment for young people. The Petersen case concerned established practice in the German National Health Service, where a maximum age of 68 has long been in force for people working as doctors or dentists. The ECJ said that the practice was objectively justified on the following two grounds: promoting access to employment for younger people ensuring the financial viability of the system A third justification, ensuring professional competence, was not justifiable. So where does this leave employers as the abolition of mandatory retirement procedures for UK employees approaches? The answer is uncertain. In time further case law will be developed that brings some clarity to the question of when it is and when it is not lawful to maintain mandatory retirement. This may come sooner rather than later because the Seldon case has been appealed to the Supreme Court.

Other interesting cases

The following are brief summaries of cases decided in 2010 that are notable, interesting or entertaining, confirming points or developing less significant new precedents. Some have significance for specific types of employment situation, while others are simply curiosities: In Dunn v AAH Ltd [2010] IRLR 709, CA the Court of Appeal (CA) upheld the decision of the lower courts that when an employee acts in such a way as to breach trust and confidence, the employer can assume that the contract has been repudiated. This case concerned employees failure to inform managers at group HQ of a risk, hence denying them an opportunity to assess it for themselves. Despite this not really being an act of misconduct, it was deemed to be gross misconduct. In Wolf v Stadt Frankfurt am Main [2010] IRLR 244, ECJ the European Court of Justice decided that restricting recruitment to the German fire service to people under age 30 was justifiable because of the need to get 20 years service from someone in a physically demanding role. In Newcastle-upon-Tyne NHS Hospitals Trust v Armstrong and others [2010] ICR 674, EAT the Employment Appeal Tribunal ruled against an employer who argued that the need to be competitive in a competitive tendering exercise was not a genuine material factor capable of justifying not paying bonuses to a group of cleaners whose work had been judged to be of equal value to that of porters. In BP plc v (1) Elstone (2) Petroctechnics [2010] IRLR 558, EAT a person who had blown the whistle when working for a past employer alleged that he had been caused a detriment on that account by his current employer. The Employment Appeal Tribunal held that he was protected under the Public Interest Disclosure Act 1998. In Tullett Prebon plc v BGC Brokers [2010] IRLR 648, HC the High Court found that BGC had unlawfully induced a group of Tullett's staff to breach their contracts when it sought to 'poach' them en masse. BGC was also found guilty of conspiring to injure Tullett's business using unlawful means. In Autoclenz v Belcher and others [2010] IRLR 70, CA the Court of Appeal ruled that a group of car valeters were employees despite the presence of a substitution clause in their contracts (that is, permitting them to send someone else to work in their place) and a statement to the effect that there would be no mutuality of obligation. In practice, despite what these contractual terms said, the men were in an employment relationship and were therefore entitled to all employment rights.

14

Employment law update for CIPD tutors and students: January 2011

In Bateman and others v Asda Stores Ltd [2010] IRLR 370, EAT the Employment Appeal Tribunal made a somewhat contentious decision in favour of the employer. The employer had moved all staff onto a new pay structure without first securing their agreement. The defence was based on a statement in the employer's staff handbook in which managers warned that from time to time they would revise policies and introduce new ones as business needs required. Because the handbook was incorporated into employees' contracts, it was held that this constituted a flexibility clause. In Hinsley v Chief Constable of West Mercia (unreported, UKEAT/0200/10 9 November 2010, EAT) a probationary police officer resigned and then quickly regretted it. She asked if she could be reinstated but this request was turned down. She failed to persuade an employment tribunal that her mistake in resigning was due to a long-standing depressive illness. Refusing to consider her request for reinstatement represented a failure on the part of the employer to take account of reasonable adjustments. The Employment Appeal Tribunal agreed with the police officer. In Keane v Investigo and others (unreported, UKEAT/0389/09 11 December 2010, EAT) a serial litigant was given short shrift by the Employment Appeal Tribunal (EAT). She had made some twenty applications for accountancy jobs for which she was over-qualified. She would apply to an agency and then when turned down, lodge an age discrimination claim before seeking to settle out of court. She settled five cases this way. The EAT decided that because she had no real interest in the jobs she was applying for, no detriment had been suffered. Costs were also awarded against her. In City of Edinburgh Council v Dickson (unreported UKEATS/0038/09 2 December 2009, EAT) the Employment Appeal Tribunal ordered the reinstatement of a man who had been dismissed for downloading pornography from the internet while at work. There had been a failure to take account of the fact that he suffered from diabetes and of his claim that he had viewed the pornography during a 'hypoglycaemic episode' and was therefore unaware of what he was doing. A doctor's note backed up these points, but had been disregarded by the employer during its investigation. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, CA the Court of Appeal found in favour of a dismissed nurse due to procedural failings in the investigation into her conduct. A number of points were made in the judgement, the most significant of which was a failure to properly investigate a conflict of evidence in the statements that witnesses had made. The investigation had not been sufficiently even-handed. Gisda Cyf v Barratt [2010] IRLR 1073, SC is the first case of significance in the employment field to be considered by the Supreme Court in its new guise. The case concerns what exactly should be taken to be the 'effective date of termination' in situations in which a dismissal is communicated by letter. The answer is the date on which the letter is opened, unless the employee concerned unreasonably delays opening it. In Hunter v Timber Components (unreported, UKEATS/0025/09 17 November 2009, EAT) an employee was permitted by the Employment Appeal Tribunal to pursue a claim of constructive dismissal based on breach of trust and confidence after witnessing a manager's tendency to bully fellow members of staff. The employee had not been bullied himself. The case of City of Edinburgh Council v Wilkinson [2010] IRLR 756, EAT is a reminder that the term 'establishment' in equal pay law is not the same thing as a 'workplace'. An establishment can consist of several workplaces across which claimants can choose comparators of the opposite gender. In Tao Herbs and Acupuncture v Yin (unreported, UKEATPA/1477/09 14 July 2010, EAT) the Employment Appeal Tribunal ruled that the fact that an employment tribunal award might cause the employer in a case to go bust should not influence how much to award or whether to make an award following a tribunal case. Ravet v Halliburton Manufacturing Services [2010] IRLR 1053, CS and Wallis v Ministry of Defence [2010] IRLR 1035, EAT are both recent cases dealing with the evolving law on when 15

Employment law update for CIPD tutors and students: January 2011

expatriate workers can and can't make employment related claims in the UK tribunals. The number of situations in which they can appears to be gradually expanding to include postings overseas to organisations in 'British enclaves' or organisations with some 'equally strong connection to Britain. In Simpson v Endsleigh Insurance and others (unreported, UKEAT/0544/09 27 August 2010, EAT) a woman was made redundant from a London-based job while on maternity leave. Alternative jobs with the company were available, but she was not offered any because they were based in Cheltenham and her managers assumed they would not be of any interest to her. The Employment Appeal Tribunal ruled that there had been no breach of the requirement to offer any suitable vacant posts to women who are made redundant while on maternity leave. In Rutherford v Seymore Pierce Ltd [2010] IRLR 606, HC the High Court said that the claimant was entitled to his share of a profit-related bonus even though he had left the company's employment at the time it became due. In the absence of any contractual term which states that employees forego bonuses on leaving, such payments must be made. Brown v G4 Security (Cheltenham) (unreported, UKEAT/0526/09 27 April 2010, EAT) was a rare example of an employer being fined in this case 20,000 for failing to comply with the Information and Consultation with Employees Regulations 2004 (known as ICE or ICER). Samuel Smith Old Brewery v Marshall (unreported, EAT/0488/09 31 March 2010, EAT) concerned overlapping discipline and grievance hearings the type of situation that arises when an employee raises a grievance in response to an employer accusing him of misconduct or poor performance. In this case two married employees tried to argue that their employer should have held back on disciplining them formally until the grievance they had raised was heard in full. The Employment Appeal Tribunal disagreed with them. Overlapping procedures is fine as far as the law is concerned. Kulikasoskas v MacDuff Shellfish (unreported, EATS/0062/09 and EATS/0063/09 6 July 2010, EAT) concerns the dismissal of a Lithuanian man for helping his partner to lift heavy weights in the factory where they both worked. She was pregnant and the pair had only been working at the factory for a month when they were both dismissed. Her case for pregnancy discrimination was relatively straight forward. His case was not because he was trying to establish associative discrimination on grounds of pregnancy. He failed to persuade the tribunal and later the Employment Appeal Tribunal that such a provision should be read into the law. He would have had an easier time had he been dismissed after October 2010 when the Equality Act 2010 had become law. Nixon v Ross Coates Solicitors (unreported, UKEAT/01081/10 5 August 2010, EAT) concerned a woman who became pregnant after having had two separate affairs with work colleagues. 'Who's the daddy' gossip was widespread in the offices at which she and they worked and managers did nothing to stop it. The Employment Appeal Tribunal agreed that this amounted to sexual harassment on pregnancy grounds. In Willoughby v CF Capital (unreported, UKEAT/0503/09 13 July 2010, EAT) an employer was found by the Employment Appeal Tribunal to have dismissed a member of staff in law, despite the fact that the letter of dismissal had been sent to her by mistake. She was therefore free to pursue an unfair dismissal claim.

Future developments
Unfair dismissal compensation
From 1 February 2011 the cap on compensatory awards in unfair dismissal cases rises to 68,400. The cap on weekly pay to be used in calculating basic awards and statutory redundancy payments rises to 400, making 12,000 the maximum level that a basic award can reach.

16

Employment law update for CIPD tutors and students: January 2011

Abolition of mandatory retirement

This looks like being one of three truly significant developments in employment law during 2011. The plan is to repeal the part of age discrimination regulations which allows employers to retire employees on their 65th birthdays, or at a later date provided they follow a set procedure. The Government is planning to phase this out between 6 April and 1 October 2011. The current scheme requires employers to write to employees at least six months before the proposed retirement date asking if they wish to exercise their right to request to work beyond that date. Employers who want to do this before 1 October 2011 need to write to the employees concerned before 6 April 2011. From 1 October 2011 it will no longer be possible to retire people mandatorily unless this policy can be objectively justified. As we have seen from EU case law and from litigation in the UK involving non-employees, this means that it will continue to be possible to maintain mandatory retirement providing the policy can be objectively justified as 'a proportionate means of achieving a legitimate aim'. However, until more cases come through the courts, exactly what the grounds for objective justification are going to be is not clear. One possibility would simply be to raise the mandatory retirement age to 68 or 70. This would still have to be objectively justified, but doing so might well be easier than is the case at age 65. Moreover, research has long demonstrated that the numbers who want to continue working after age 70 is very small. Things may change in this latter respect once the right to request flexible working is extended to all employees in 2012 or 2013.

Additional paternity leave

This is the second major development planned for 2011. Something similar to what the Government is now proposing has been in the pipeline for a long time. The original plan set out in the Work and Families Act 2006 was to bring in a new right from April 2010, but this was postponed due to the recession. Fathers will be able to claim additional paternity leave (APL) in respect of any child due (or matched for adoption) on or after 3 April 2011. So a due date after midnight on Saturday 2 April 2011 is the crucial time. Eligible fathers will now be able to take up to a maximum of a further 26 weeks APL for the purpose of caring for the child. Essentially what is envisaged is a situation in which mothers will be able to return to work after taking the first part of their maternity leave, with the father being entitled to APL once the mother has returned to work. APL is therefore open only to fathers whose wife or partner works. The earliest APL can start is when the child is 20 weeks old (or when the child has been with its adoptive parents for 20 weeks) and ends one year after the child is born (or placed for adoption). APL can only be taken once the mother has returned to work, so that a mother and father will not be able to take maternity leave and APL at the same time. Statutory maternity pay (SMP) is currently available to mothers during the first 39 weeks of their leave (assuming certain qualifying conditions are satisfied). APL will be paid at a flat rate that is equivalent to SMP, for the portion of the APL which is taken during what would have been the remainder of the mothers paid maternity leave period. Some employers will have alternative arrangements in place for paying women and men more during their AML and APL. The interesting legal question is the extent to which employers will have to ensure that men taking APL are treated in the same way as women taking AML. For example if more generous contractual maternity pay packages are offered to female employees what contractual paternity pay packages should now be offered to men? 17

Employment law update for CIPD tutors and students: January 2011

The right to return to work after APL will be the same for men, as will the right to retain contractual benefits such as cars, lap-tops and even live-in accommodation. Ministers have made it clear that they are viewing these measures as temporary. Over time they are planning to bring forward legislation that will allow greater flexibility. The Conservative manifesto suggested swapping more leave and bringing the date forward to 14 weeks after a baby's birth. The Liberal Democrats went further, suggesting that it should be possible for a mother to pass on the remainder of her maternity leave to the father after the two weeks' compulsory maternity leave was over. The plan to increase paid maternity leave from nine months (39 weeks) to 12 months from April 2010 was put on hold indefinitely by the Labour Government due to the recession. This remains the situation. The European Commission has published a draft directive which, if adopted by the Council of Ministers, will increase compulsory maternity leave (CML) from two to eight weeks at some stage in the future.

Bribery Act 2010

The Bribery Act 2010 is expected to come into force on 6 April 2011. It is a piece of legislation conceived and taken through Parliament by the Labour Government. It consolidates several existing statutes into one place, creating two new criminal offences in the process: 1. 2. offering, promising or giving a bribe to another person, and requesting, agreeing to receive or accepting a bribe.

From an employer's perspective the measure which is significant is 'failing to prevent bribery' a new corporate offence. This makes an organisation legally liable if any person 'associated with it' bribes or intends to bribe another in order to: obtain business retain business gain advantage in the conduct of business. However, there is a defence which can be deployed, namely, demonstrating that there are in place 'adequate procedures' to prevent bribery from taking place. The situation that will be created is therefore not dissimilar from the law on sexual harassment, although this is criminal law. An organisation can accept that an act of unlawful bribery has occurred, but argue that on this occasion it is not responsible because it has taken all reasonable steps to ensure that bribery does not occur. The term 'adequate procedures' is thus central. Draft government guidance sets out six key points that employers will want to be able to demonstrate: 1. 2. 3. 4. 5. 6. risk assessment procedures top-level commitment to preventing bribery due diligence on business opportunities and associated third parties internal policies and procedures to prevent bribery an effective implementation strategy to prevent bribery internal monitoring and review of anti-bribery strategy.

In addition to fines and the possibility of prison sentences for senior directors, there is also the possibility that a firm could be banned or suspended from bidding for public sector contracts or those tendered by utility companies. 18

Employment law update for CIPD tutors and students: January 2011

Further, more detailed guidance for employers will be issued before the Bribery Act 2010 comes into force.

SMP, SPP, SAP and SSP rates

From 11 April 2011 the weekly rate for statutory maternity pay (SMP), statutory paternity pay and statutory adoption pay rises to 128.73. The lower earnings threshold over which SMP is payable will rise to 102 a week. The weekly rate of statutory sick pay (SSP) rises to 81.60.

Positive action in recruitment and promotion

While not yet finalised it looks as if the Government will be introducing the new rules on positive action in April 2011. These will apply in recruitment and promotion situations in which a number of candidates apply. It is a measure contained in the Equality Act 2010 that was opposed by the Conservatives and supported by the Lib Democrats before the election. The idea is that the UK should take advantage of a European Court ruling which permits employers to choose a member of an under-represented group (for example, women, ethnic minorities etc) when following a recruitment exercise, there are two or more suitable candidates of equal merit.

Right to request flexible working

The extension of the right to request flexible working to parents of 17 year olds will come into force on 6 April 2011. At present the right expires when someone's youngest child reaches age 17, but from 6 April 2011 it will be age 18. The long-term aim of the Government, however, is to extend this right to all employees whatever their age and whatever their parental status. The idea of allowing temporary flexible working requests as well as one-off permanent changes is also being considered.

Royal Wedding
The Government has announced that an additional bank holiday will take place across the UK on Friday 29 April 2011, to celebrate the royal wedding. As Easter is so late this year, this will mean that the country will enjoy two four day weekends consecutively (22 to-25 April) and (29 April to 2 May). The week in between will be only three days long. An important legal question is whether or not employers are obliged in law to give their staff this additional wedding bank holiday off work? The answer is 'no' unless there is a contractual obligation to do so. Rights depend on the precise wording of individual contracts - do they refer generally to bank holidays or are the bank holidays normally taken each year named? If it is the latter there is no legal right to a day off on 29 April 2010 and no right to be paid for that day.

New rights for agency workers

The Agency Workers Regulations 2010 are due to come into force in the UK on 1 October 2011. These implement the Temporary Agency Work Directive, agreed and then approved by the European Parliament in October 2008. The new Regulations mean that agency workers who work continuously with a single end-user for twelve weeks or more, will gain the right to have the same pay, overtime, working time and holiday entitlements as equivalent permanent employees, as well as equal 'basic working and employment conditions'. Pensions and sick pay will not be covered, nor will redundancy pay. In addition, from day one, agency workers will be entitled to equal treatment in the areas of:

19

Employment law update for CIPD tutors and students: January 2011

canteens child care facilities transport laid on by employers. The definition of the term 'agency worker' is going to be problematic as it has been framed to exclude people who are self-employed and effectively supply themselves on an agency basis as well as people supplied via 'managed contracts'. Agency workers who are employed for a period of twelve months or more at the same organisation will not be able to claim unfair dismissal or constructive dismissal. No change is planned to their existing employment status.

Parental leave
An EU directive has been agreed increasing parental leave entitlements across Europe from three to four months per child. The deadline date for implementation is 8 March 2012. However, if past experience is anything to go by the UK will implement in April 2012. Ministers are debating whether to introduce a right to 'shared parental leave' at the same time. The details of this plan are rather hazy at present, but would appear to permit parents to swap part of their four month entitlement among themselves so that, for example, a father could pass three of his four months on to the mother who could take a total of seven months unpaid parental leave. It is quite possible that these measures will be introduced alongside the extension of the right to request flexible working to all employees.

New pension rules

The increase in the dependency ratio as a result of population ageing has major implications for pensions. Unless action is taken soon, the country will be unable to support retired people financially in the future. The choices are all difficult: accept a lower level of average retirement income for older people work longer save considerably more increase taxation very considerably. Accepting that the first choice is unacceptable, and that the fourth choice is economically impractical, it is the second and third choices which the Government has decided to focus on. In May 2006 the Labour Government published a white paper entitled Security in retirement: towards a new pensions system which set out proposals for long-term, fundamental reform of state pensions. The white paper drew on the recommendations of the Turner Commission which reported in 2005 after having undertaken a lengthy, in depth investigation of the whole issue. The Pensions Act 2008 contained most of the resulting measures. The Coalition Government is not planning to make any radical changes. The major new requirements will be as follows: From October 2012 everyone who is employed will have access either to an occupational pension scheme or to the government's 'personal pension account scheme' which will invest monies through a body to be known as the National Employment Savings Trust (NEST).

20

Employment law update for CIPD tutors and students: January 2011

People will be able to opt out if they wish, but otherwise they will be automatically enrolled into one scheme or the other when commencing a new job. Employers will not be able to opt out, but they will have 12 weeks in which to enrol new staff. Minimum contributions will be as follows: o employees will contribute 4% of earnings o employers will contribute 3% o tax relief will mean that a further 1% is effectively contributed. It has now been established that the employer involvement will be phased in over three years. For employers running defined benefit schemes the full three years will be allowed. Further plans involve simplifying the rules for accessing the state pension and state second pension and making the system more accessible to people who take periods out of the workforce for the purposes of raising families and caring for elderly dependants. Additional financial incentives will also be introduced to encourage more people to work beyond the state pension age. The state pension age will also rise. The Labour Government plan foresaw a rise from age 65 to 66 in 2024, to age 67 in 2034 and to age 68 from 2044. However, before the General Election the Conservative Party announced its intention to bring the age 65-66 rise for men forward to 2016. No final decision on this has yet been made.

Other future possibilities

A variety of proposals for the reform of employment law and health and safety regulations have been floated by ministers and others close to them in recent months. Some are said to be 'under active consideration'. There are also proposals in the EU pipeline that may or may not ultimately come into our law. These include the following: going back to a two-year qualifying period for unfair dismissal increasing the number of situations in which costs are awarded by employment tribunals radically reducing health and safety requirements in low risk workplaces (for example an exemption from the need to undertake formal risk assessments) paying full pay for the first 20 weeks of maternity leave.

References
BARROW, C. (2002) Industrial relations law. 2nd ed. London: Cavendish.

Useful contacts
CIPD members can find more information on employment law developments, in the Employment Law at Work area of our website. The text of recent legislation is available online. Public General Acts since 1988 at www.opsi.gov.uk/acts.htm Statutory Instruments since 1987 at www.opsi.gov.uk/stat.htm Bills currently going through Parliament at www.parliament.uk/bills/bills.cfm Government department websites usually contain useful summaries of recent and forthcoming
legislation. The main departments for employment law are:
Department of Business Innovation and Skills at www.bis.gov.uk/
Department for Work and Pensions at www.dwp.gov.uk/

21

Employment law update for CIPD tutors and students: January 2011

The Employment Appeal Tribunal (EAT) www.employmentappeals.gov.uk deals with appeals from
the decisions of the employment tribunals. The website has the full text of judgments from July 1999 and a list of cases heard during the most recent month, as well as procedural information. British and Irish Legal Information Institute (BAILII) at www.bailii.org provides access to a comprehensive collection of British and Irish legal materials available free of charge.

22

Chartered Institute of Personnel and Development 151 The Broadway London SW19 1JQ Tel: 020 8612 6200 Fax: 020 8612 6201 Email: cipd@cipd.co.uk Website: cipd.co.uk
Incorporated by Royal Charter Registered charity no.1079797

Issued: January 2011 Reference: 5453 Chartered Institute of Personnel and Development 2011