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Legal Update Workshop

Legal Update Workshop. 9 June 2010 Mr P Bogle, University Solicitor Mr J Hallam, Director of Human Resources Mr R Melville, Assistant University Secretary. Issues to Cover. Case Law Round up and Latest Breaking News Equality Act 2010 UKBA / Right to Work in UK etc

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Legal Update Workshop

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  1. Legal Update Workshop 9 June 2010 Mr P Bogle, University Solicitor Mr J Hallam, Director of Human Resources Mr R Melville, Assistant University Secretary

  2. Issues to Cover • Case Law Round up and Latest Breaking News • Equality Act 2010 • UKBA / Right to Work in UK etc • Independent Safeguarding Authority • Freedom of Information Act (FOIA) • Discussion / questions

  3. Case Law Round up • EAT held that it will only rarely be unfair for an employer to proceed with a disciplinary hearing prior to holding a related grievance appeal hearing. • ACAS code of practice on disciplinary and grievance procedures does not at any point suggest that grievances are required to be held first. • EAT did say that the claimants would have a stronger case where no grievance hearing at all had taken place. Samuel Smith Old Brewery v Marshall and another EAT/0488/09

  4. Case Law Update • A case of constructive dismissal Professor Paul Buckland from Bournemouth University. • Failed 18 out of 60 second year archaeology undergraduates • Won substantial damages following Court of Appeal hearing • Bournemouth University committed fundamental breach of implied term of trust and confidence in his employment contract by allowing exam papers to be marked for a third time and upping marks.

  5. Case Law Round up • Heyday finally put to bed • Age discrimination claim dismissed and all pending cases dealt with • Government to review default retirement age in 2011

  6. Case Law Round up • Age discrimination and criteria for career progression involving holding of degree qualification • Court of Appeal held that it was not discriminatory on the grounds of age for the employer to require an employee to hold a degree in order to be promoted to the top level of its career structure. • Notwithstanding that at age 61, the employer would not have time to undertake the necessary qualification prior to retiring at 65 • Any financial disadvantage Mr Homer encountered from not having a degree was in reality a consequence of age, not of age discrimination

  7. Case Law Round up It was reasonable for the employer to proceed with a disciplinary / dismissal hearing in the absence of the employee, given the complainant knew about the intended meeting, failed to request more time and had already failed to attend a previous hearing. Perera v APCOA Parking UK Ltd (ET/2200061/09)

  8. Case Law Round Up An NHS Consultant’s dismissal from employment was unfair, given that the initial assessment by the employer was that the alleged misconduct (bullying and harassment) was that this was not a serious matter. Employers must make a proper assessment of seriousness and should only take more serious action if this is warranted by new evidence. Sarkar v West London Mental Health NHS Trust [2010] IRLR 508 CA

  9. Case Law Round Up Fixed Term Contracts – Redundancies University of Ulster – no offer of alternative employment, no attempts to redeploy (March 2010) Warwick University – in breach of its own statute (February 2010) Stirling University – failure to adequately consult (January 2010)

  10. Latest / breaking news Coalition Government! ‘we will 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.’ National Minimum wage – keep / extend? Agency Workers Directive? Socio-economic duty – no? Positive action – yes? Retirement age – phasing? Flexible working – extension?

  11. Latest / breaking news Fit Notes New fit note offers an option of ‘may be fit for work taking account of the following advice....’ As is usual with such medical advice, managers may need to consider: • flexible working • amending duties • workplace adaptations • phasing return to work

  12. Latest / breaking news Statutory Right to Request Time Off for Training Statutory right to request time off for training from 6 April 2010 (250+ employees) Right covers employees with more than 26 weeks employment: • training leading to a qualification • training to help develop skills relevant to job / workplace / business Employer does NOT have to meet cost and can consider ‘detriment’ (e.g. cost, impact, change) Employer is required to discuss and to properly consider Employee has right to appeal internally and to ET (up to 8 weeks pay can be awarded)

  13. Equality Act 2010 • Received Royal Assent on 8 April 2010 • Replaces many different Equality Acts (largely but not entirely) with a single equality Act • Simplifies? • Removes inconsistencies • Extends some new rights and tackles discrimination • Commencement date(s) to be confirmed – October 2010?

  14. Protected Characteristics • Age • Disability • Gender reassignment • Marriage and Civil Partnership • Pregnancy / maternity • Race • Religion or (genuinely held philosophical) belief • Gender / Sex • Sexual orientation

  15. Extensions of the Law • A new duty on certain public bodies e.g. Local Authorities and schools - but not HE - to consider socio-economic disadvantage when making strategic decisions about how to exercise functions. (No recourse to private law to complain but can seek judicial review) • Specifically extends protection to a combination of two relevant protected characteristics (e.g. gender and age and also now extends to ‘caste’ in respect of race). • Confirms prohibition of discrimination by association e.g. carers • Creates a duty on public bodies to have due regard to the need to eliminate discrimination, to advance equality of opportunity, to foster good relations • Permits an extension of ‘positive action’ where ‘all things being equal’ there is a disadvantage or under-representation (but must be ‘proportionate.’) • Permits ‘positive discrimination’ in respect of disability • Gives further powers to ET’s to make recommendations to a respondent who has lost a discrimination case • Removes the prohibition on civil partnerships being registered in religious premises • Restricts the circumstances in which potential employees can be asked questions about disability or health. • Gives powers to require employers of over 250 staff to publish information about differences in pay between male and female employees.

  16. Key Principles / Concepts in the Equality Act 2010 • Direct discrimination (‘because of less favourable treatment’) • Indirect discrimination (where a provision, criteria or practice has an effect which particularly disadvantages people with a protected characteristic) – now applies to all protected characteristics excepting pregnancy and maternity. • Duty to make reasonable adjustments – practices, environment, aids / services (disability only) – where there is ‘substantial disadvantage.’ • Harassment • Victimisation (including post-employment) • In some cases (e.g. age, disability, equal pay) it will remain possible to justify some less favourable treatment as long as it is proportionate and achieving a legitimate aim • Burden of proof is on the claimant but once sufficient facts established shifts to respondent to show employer did not breach the Act.

  17. Some Examples - Direct • Direct: An employer rejects a job application form because the applicant has an African name. • Direct (dual characteristics) : A black woman is passed over for promotion because the employer thinks black women do not perform well in customer service roles. • Direct: a female to male transsexual takes time off work to receive hormone treatment. The employer cannot discriminate against him for absence from work for this treatment. • Direct: an employer must not demote, deny training or promotion opportunities to someone who is pregnant / on maternity leave. • Justification: an employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague.

  18. Some examples - Indirect (Occurs when a policy has an effect which particularly disadvantages people with a protected characteristic ) e.g. A woman is forced to leave her job because her employer requires her to work a new shift pattern which conflicts with her needs to look after her children and no consideration / allowance is given to those needs. May be indirectly discriminatory unless employer can justify.

  19. Some examples – failure to make reasonable adjustments (disability) An employee develops carpal tunnel syndrome which makes it difficult for him to use a standard key board. The employer refuses to pay for / provide a modified key board / voice activated software. Potentially unlawful failure to make a reasonable adjustment.

  20. Some examples - harassment An employee submits another employee to racially abusive language Employer may be liable for third party harassment when this has occurred on at least two previous occasions, the employer is aware but has not taken reasonable steps to prevent. Note: In determining the effect of the unwanted conduct (harassment), tribunals will continue to be required to balance competing rights on the facts of a particular case. For example this could include balancing the rights of freedom of expression (as set out in Article 10 of the European Convention on Human Rights) and of academic freedom against the right not to be offended in deciding whether a person has been harassed.

  21. Some examples - Victimisation • A woman makes a complaint of sex discrimination. As a result, she is denied promotion. This could amount to victimisation.

  22. Some examples – Equal Pay • An employer introduces a bonus payment to staff to encourage night working. Only a small number of female staff can work at night and the bonus payments go almost entirely to male employees. May be legitimate and proportionate.

  23. Some examples – positive action An employer which employs a disproportionately low number of people from an ethnic minority background identifies a number of candidates who are as qualified as each other for a post, including a candidate from an under-represented ethnic minority background. It would not be unlawful to give preferential treatment to that candidate provided the comparative merits of the other equally qualified candidates was properly considered.

  24. Enquiries about disability / health – permitted areas An employer must not ask about a job applicant’s health until that person has been offered a job or unless it can be justified for the following reason(s): • Assessing ability to participate in an assessment test for suitability for work • Making reasonable adjustments related to selection • Supporting positive action for disabled people • Enabling an employer to identify suitable candidates for a job where there is GOR for the person to be disabled

  25. Points Based Immigration System • Changes to the Immigration Rules came into force on 6 April 2010, affecting migrant students and educational providers sponsoring them under Tier 4 of the points-based system • Only sponsors holding a Highly Trusted Sponsor (HTS) licence can now offer ‘restricted courses’ to Tier 4 students • Education providers who hold a standard Tier 4 sponsor licence can only offer courses at or above National Qualifications Framework (NQF) level 4 or equivalent. Cannot offer courses that include work placements unless those courses are degree-led courses or foundation degrees

  26. Points Based Immigration System • If a student is studying a restricted course at an institution that does not hold an HTS licence they can continue to completion or until visa expires. Extending their stay to complete a course will involve studying at an institution with an HTS licence. • All universities, including CCCU were provisionally awarded HTS status on 6 April but must apply to the UKBA by 30 June 2010 to extend that status.

  27. Points Based Immigration System • CCCU’s status will be reviewed when audited by the UKBA in the future • Highly Trusted Sponsors have the option of holding a register of students 3 times per year or to maintain a monitoring system by which students who miss ten consecutive learning encounters are reported to the UKBA • University had already established the latter system and will continue to operate this arrangement • Colleagues encouraged to ensure vigorous implementation of the Student Attendance Policy and Cause for Concern procedures

  28. Points Based Immigration System • Tier 1 changes from 6 April 2010 – Highly skilled Tier • Removal of the requirement to have at least a masters degree – now minimum threshold is an undergraduate degree • Migrants with previous accrued earnings of £150,000 do not need to meet any education requirements • Initial leave to remain entitlement reduced from three years to two with the option of a three year extension

  29. UKBA / Right to Work Employer has a statutory duty to check right to work in UK for all / anyone employed. Must not work before checks completed. Penalties include: • withdrawal of Highly Trusted status / licence • Fines • Imprisonment / criminal conviction Includes external examiners (latest UKBA / UUK advice) and academic sessional staff and self employed

  30. Independent Safeguarding Authority

  31. Independent Safeguarding Authority • The Scheme aims to • remove barred people from all activity with vulnerable groups • Continuously update the registration status • Use an open and transparent process • No distinction made between paid and voluntary work • Employers and voluntary groups retain their responsibility for ensuring safe recruitment and employment practices. 31

  32. Definition of ‘Regulated Activity’ Involves contact with children or vulnerable adults and is: a specified role (e.g. Directors of Children’s Services, members of Youth Justice Board, School Governors) 32

  33. Definition of ‘Vulnerable Adult’ Health Social Care • receives any form of health care • lives in residential accommodation including sheltered housing • receives domiciliary care • receives support, assistance or advice to help them live independently • requires assistance in the conduct of their own affairs • receives a direct payment • is an expectant/nursing mother in residential accommodation provided by the LA or NHS • receives any service or participates in activity provided specifically because of disability • is detained in lawful custody • is on probation Sport, Faith, Voluntary Justice

  34. Effect of Scheme Registration Duties and responsibilities under the Act where an organisation is providing regulated activity: A barred individual must not undertake regulated activity An employer must not knowingly engage in regulated activity a barred person or a person who is not ISA-registered If an existing member of staff is barred they must be moved from regulated activity immediately To undertake regulated activity an individual must be ISA-registered Staff cannot refuse to become ISA registered and still carry out RA An employer mustcheck that a prospective employee who is in regulated activity is ISA-registered Apart from where there is a specific exception 34

  35. Cost of Scheme Registration Individuals in paid employment will pay a one off fee of £64when applying for registration with the Scheme. This includes the cost of an enhanced CRB disclosure Those involved only in unpaid voluntary activity do not payan application fee. Students undertaking vocational courses(medicine, nursing, teaching, etc) have to pay the application fee. Although ISA registration is portable, additional CRB checks can be obtained where required by law

  36. Since October 2010 • Individual must not engage in a regulated activity if barred – it is criminal offence • Employer must not knowingly allow a barred individual to engage in a regulated activity – it is criminal offence • Referral of information to the ISA by employer where permission is withdrawn for the individual to engage in regulated activity (e.g. by dismissal, suspension or transfer) or would or might have done so had the individual not ceased the activity.

  37. Since October 2010 • Individual must not engage in a regulated activity if barred – it is criminal offence • Employer must not knowingly allow a barred individual to engage in a regulated activity – it is criminal offence • Referral of information to the ISA –Employer must refer information to the ISA where permission is withdrawn for the individual to engage in regulated activity (e.g. by dismissal, suspension or transfer) or would or might have done so had the individual not ceased the activity.

  38. From July 2010 • New workers or the changing roles to take on regulated activity may apply for ISA registration

  39. From 1 November 2010 • ISA register becomes active, which includes all those who engage in regulated activities over a 5 year roll-out period • Those entering new regulated activity roles must not engage in a regulated activity if not on the ISA register – it becomes a criminal offence • It is a criminal offence from a later date for those in the existing workforce in next phases of registrations. • Employer must check ISA registration

  40. It’s not over until the Coalition sings... • “We will review the criminal records and vetting and barring regime and scale it back to common sense levels.” The Coalition: our programme for government May 2010 • The Department for Education announced in May 2010 the scrapping of • General Teaching Council for England (GTC) • Qualifications and Curriculum Development Agency (QCDA) • Becta (formerly known as the British Educational Communications and Technology Agency)

  41. Freedom of Information

  42. Leeds Metropolitan University Message from Chief Executive 22/04/09 • Over the last few months the Yorkshire Post has conducted a detailed investigation into some University procedures. We have responded openly to 40 Freedom of Information requests and almost 700 additional questions as well as supplying them with 5,000 staff purchasing card statements covering a three year period. The University wishes to be transparent and has nothing to hide.

  43. Exclusive: Leeds Met - the credit card university Yorkshire Post 11 September 2009 By Rob Waugh THOUSANDS of pounds has been spent on Leeds Metropolitan University credit cards without any evidence of a receipt or invoice and 40 per cent of staff had no set transaction limits, it can be revealed today.

  44. Leaked climate change emails scientist 'hid' data flaws UEA [was] criticised last week by the deputy information commissioner for refusing valid requests for data under the Freedom of Information Act. The Guardian has learned that of 105 freedom of information requests to the university concerning the climatic research unit (CRU), which Jones headed up to the end of December, only 10 had been released in full. The Guardian Monday 1 February 2010

  45. University of Central Lancashire v IC November 2009 • a request was made for disclosure of course materials relating to a BSc degree course in homeopathy • request refused initially because disclosure of the course materials would damage the University’s commercial interests • The question was whether and to what extent FOIA can be used as a device to open up public access to educational resources

  46. University of Central Lancashire v IC November 2009 • despite being a charity, the University had ‘commercial interests’ in respect of teaching materials • however at the time of the request there was no real and significant risk that disclosure of the course materials would prejudice the University’s commercial interests: that the university would lose any meaningful competitive advantage was in the circumstances more illusory than real • in any event, the public interest balance would have favoured disclosure (a) the strong public interest in being able to examine for themselves the quality of publicly funded courses and, further (b) the intensity of public debates over the validity of homeopathy as a form of treatment

  47. Freedom of Information • Increases number of requests • Gradual increase in the number of requests at the University • Requests focussing on the use of University resources • The Round Robin • Increase in the use of circular requests to universities • Creation of website to display results of FOIA requests to universities

  48. Freedom (Great Repeal) Bill • extension of the scope of the Freedom of Information Act • Strengthening the accountability of bodies receiving public funding in light of lessons learnt so far from the operation of the Freedom of Information Act. • protecting privacy through the further regulation of the use of CCTV • ending of storage of internet and email records without good reason • Ensuring the storage of internet and email records is only done when there is good reason to do so

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