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CIPD EMPLOYMENT UPDATE 2010. Keith Land Partner Sintons LLP . Redundancy. Get the depressing stuff dealt with first! The economy has driven us back to basics! Williams v Compare Maxam (1982) reasonable guidelines not for the ET to adopt its own view

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cipd employment update 2010


Keith Land


Sintons LLP

  • Get the depressing stuff dealt with first!
  • The economy has driven us back to basics!
  • Williams v Compare Maxam (1982)
    • reasonable guidelines
    • not for the ET to adopt its own view
    • assess what a reasonable employer would have done
  • Guidelines
    • warn employees of risk and consult
    • consider pool for selection
    • selection by way of objective criteria
      • Howard v Siemens Energy Services
    • criteria fairly applied
    • scores allocated can be supported / checked
      • e.g. attendance, efficiency, relevant experience
    • consider representations
    • consider alternative employment
  • Collective Redundancy - individual consultation must also take place
    • Mugford v Midland Bank (1997) IRLR 208
  • The employee who refuses consultation
  • April 2009 - The Return of Polkey
  • LIFO and Age Discrimination
    • Rolls Royce plc v Unite (2009) IRLR 49
alternatives to redundancy
Alternatives to Redundancy
  • Dispense with freelance and agency workers
  • Force employees to take annual leave
    • beware of prior arrangements
  • Ban overtime
  • Reducing hours / reducing pay
    • requires consent / variation to contract
    • persons refusing / subsequent redundancies
  • Compulsory Layoff / Short Time Working
transfer of undertakings
Transfer of Undertakings
  • Standard Transfer - Klarenberg v Ferrotron Technologies 2009 ICR 1263
  • Service Provision Change - Metropolitan Resource Ltd v Churchill Dulwich Limited 2009 ICR 1380
    • EAT guidance on establishing a ‘service provision change’
    • whether activities are fundamentally / essentially the same
    • services do not have to be identical
    • TUPE will still apply where there are minor differences in the way those activities are carried out
tupe service provision cont
TUPE – Service Provision cont ...
  • Clearsprings Management Limited v Ankers EAT 0054/08
    • three transferees and service so fragmented
  • OCS Group UK Limited v Jones EAT 0038/09
    • change in nature of services – no SPC
  • Royden v Barnets solicitors ET case 2103451/07
    • solicitors followed their client’s work
tupe consultation
TUPE - Consultation
  • Royal Mail Group Ltd v CWU 2009 IRLR 1046
    • no warranty as to the accuracy of information
    • genuine but mistaken belief – no breach
    • compare Hagen v ICI
  • UCATT v Amicus and ors, etc … 2009 ICR 852
    • no obligation to inform and consult after the date of transfer
  • Alemo-Heron v Parkwood Leisure Ltd 2009 ICR 703 and Gutridge v Sodexo and ors 2009 IRLR 721
working time
Working Time
  • Inland Revenue v Ainsworth 2005 ICR 1149; HM Revenue and Customs v Stringer 2009 ICR 985
    • CA decides workers on sick leave not entitled to claim holiday under WTR
    • HL decides fundamental issue between holiday pay and sick pay – refer to ECJ
    • ECJ combined it with a German case and decided four things
working time cont
Working Time cont …
  • ECJ Decision
    • workers off sick – entitled to be paid annual leave
    • employment terminated – payment in lieu of it
    • for national law to determine whether employees can take annual leave during sick leave but if not, must be able to take it at another time
    • extinguishment of right at the end of a leave year not lawful
  • Referred back to HL – only one point outstanding
effect of stringer
Effect of Stringer
  • Employees on long-term sick accrue leave
  • Sick employees deemed to be prevented from taking annual leave - entitled to take a payment in lieu of it on termination of employment
  • Claim = unlawful deductions - maximum of 6 years
  • Something for major concern?
    • long term sickness absence = minority
  • Amend contracts / policies
    • impact limited to statutory holiday
    • ensure leave can be taken in the appropriate year and hence not prevented from taking it or to designate when employee is on leave
working time cont12
Working Time cont ….
  • Pereda v Madrid Movilidad 2009-IRLR 959
    • worker is ill on holiday - must have the option to designate an alternative period of annual leave
    • applicable to private sector?
  • Hughes v Jones t/a Graylans Residential Home EAT 0159/08
    • worker provided with accommodation and on call is working and subject to WTR
age discrimination
Age Discrimination
  • The ‘Heyday’ challenge –
    • Age Concern (now Age UK) - judicial review of many elements including the default retirement age of 65
    • ECJ holds that DRA justified by social policy objectives and it is for the national courts to decide whether the legislation pursues such an objective and whether the means uses are appropriate and necessary
    • High Court holds compulsory retirement at 65 is lawful
    • Comment that may have reached a different decision of government not brought forward review from 2011 to 2010
    • Change of government in 2010?
age discrimination cont
Age Discrimination cont…
  • Justification – proportionate means of achieving a legitimate aim
  • London Borough of Tower Hamlets v Wooster 2009 IRLR 980
  • Baker v National Air Traffic Services Limited ET Case 2203501/2007
    • age bar on applicants training to be air traffic controllers of 36 or over – not justifiable
    • ET decision – not binding but contains a good resume of approach to deciding this question
disability discrimination
Disability Discrimination
  • Direct Discrimination
    • EBR Attridge Law LLP v Coleman EAT 0071/2009
  • Disability Related Treatment
    • Clark v Novacold CA 1999 ICR 951
    • Lewisham v Malcolm
    • Stockton on Tees BC v Aylott EAT 2009 ICR 872
  • Remember reasonable adjustments
    • Fareham College v Walters EAT 2009 IRLR 991
disability discrimination cont
Disability Discrimination cont …
  • Recurring conditions become easier to prove
  • Substantial adverse effect – proved if condition “likely” to recur
  • SCA Packaging Limited v Boyle HL 2009 ICR 1056
    • reversed previous case law
    • “likely” means “could well happen” rather than being “more probable than not”
equal pay sex discrimination
Equal Pay / Sex Discrimination
  • Red Circling and Genuine Material Factor Defence
    • Must be a good reason for it and that reason must continue
    • Fearnon v Smurfit Corrugated Cases Lurgen Limited CA 2009 IRLR 132
  • Homophobic abuse was discrimination even though it was common knowledge that the recipient was heterosexual
    • English v Thomas Sanderson Limited CA 2009 ICR 543
race religion discrimination
Race / Religion Discrimination
  • Harrasment – unwanted conduct, on racial ethnic grounds, has the purpose or effect violating dignity, etc…
    • Richmond Pharmacology Limited v Dhaliwal EAT 2009 IRLR 336
    • all three elements to be proved, in particular, the effect on the employee
  • Indirect Discrimination – religious convictions and job functions
    • London Borough of Islington and Ladale EAT 2009 ICR 387 and McFarlane v Relate Avon Limited EAT 0106/09 and Chondol v Liverpool City Council EAT 0298/08
religious discrimination
Religious Discrimination
  • Religion / Belief Regulations protect any “religious or philosophical belief”
  • Grainger plc v Nicholson EAT 0219/07
    • Any philosophical belief capable of protection, if
      • genuinely held
      • it is a belief, not just a opinion / viewpoint
      • relevant to a weighty / substantial aspect of human life
      • has a level of cogency, seriousness, importance
      • worthy of respect in democratic society, not incompatible with human dignity or in conflict with human rights of others
contracts of employment
Contracts of Employment
  • Cook v MSHK Limited CA 2009 IRLR 838
    • repudiatory breach of contract, disciplinary proceedings, sickness absence and affirmation
  • WRN Limited v Ayris HC 2008 IRLR 889
    • restrictive covenants must be linked to those with whom an employee has contact
  • JN Dairies Ltd v Johal Dairies Ltd 2009 EWHC 1331
    • stolen confidential information greater degree of protection than that provided by duty of fidelity
other issues
Other Issues

Right to Representation and Human Rights

  • Article 6 ECHR – Right to a fair hearing
  • R v Governers of X School 2009 IRLR 434
  • Kulkarni v Milton Keynes Hosp 2009 IRLR 829

Unfair Dismissal

  • Payroll and compromise agreements
    • Kirklees MC v Radecki CA 2009 ICR 2009
the equality bill
The Equality Bill
  • Stems the 2005 Discrimination Law Review
  • Is it and the Conservatives coming?
  • Is it a fuss over nothing?
    • codify existing law in one place
  • In force October 2010 (some public sector parts – April 2011)
the equality bill23
The Equality Bill
  • “Protected Characteristics”
    • less favourable treatment due to a “protected characteristic”
  • Nothing new!
    • age, disability, gender reassignment, marriage, civil partnership, pregnancy, maternity, race, religion or belief, sex, sexual orientation
  • Definition of race
    • colour, nationality, ethnic national origins
direct discrimination
Direct Discrimination
  • Discrimination against B if, because of a protected characteristic, A treats B less favourably…
  • Real/hypothetical comparator retained
    • discrimination about different treatment, not unfair treatment
  • Government’s view – nothing changes
    • association and perception
  • Indirect Discrimination
victimisation and harassment
Victimisation and Harassment


  • requirement for comparator removed and so proving this will be easier
    • NB why relevant here but not for direct discrimination


  • Only SDA currently covers 3rd parties – this will change where
    • failure to take reasonable steps to prevent harassment
    • harassment occurs on at least two occasions
    • NB – not necessarily the same harasser
association and perception
Association and Perception
  • Definition of Direct Discrimination – “because of a protected characteristic”
  • Definition of Harassment – “unwanted conduct … related to a relevant characteristic”
  • Covers employees who are associated with or perceived to be associated with those with protected characteristics
    • e.g. an incorrect assumption that a person is (or is not) of a certain religion or that their partner is (or is not) which leads to less favourable treatment
disability discrimination27
Disability Discrimination
  • Removal of the “specified functions” denoting an effect on normal day to day activities
    • mobility, manual dexterity, physical co-ordination, continence, ability to lift, etc…
  • Discrimination arising from disability
    • A treats B in a way
    • which because of B’s disability is a detriment
    • A cannot show the treatment is a proportionate means of achieving a legitimate aim
the equality bill general
The Equality Bill – General
  • Clauses preventing discussions on pay are unlawful
  • Requirement to publish pay information
    • power to issue regulations
    • 250 or more employees
    • will not act until 2013
  • Employment Tribunal Recommendations
  • Positive action – lawful
    • must show under representation of specific group
  • Commentary – nothing unlawful in rules preventing couples working together – objective justification
agency workers regulations
Agency Workers Regulations
  • New Regulations in force 2011
  • Definition of Agency Worker
    • employees of an agency
    • workers supplied by an agency
    • excludes self employed persons and those using a service company
  • Qualifying Period – 12 week in same role
agency worker regulations
Agency Worker Regulations
  • Entitled to the same basic working and employment conditions
    • pay, duration of working time, rest periods, rest breaks, annual leave (in excess of WTR)
    • pay scales and structures
    • handbooks
agency workers regulations31
Agency Workers Regulations
  • Enforcement
    • actual comparator
    • right to request basic working conditions
    • agency primarily liable
      • defence – all reasonably practicable to understand information
    • hirer responsible for infringement
    • apportionment of liability
    • 3 month time limit
    • protection from detriment
other legislation
Other Legislation
  • Unfair Dismissal / Redundancy Payments
    • weekly pay £380 – 1 October 2009
    • Compensation – max award reduced to £65,300
  • Apprenticeships, Skills, Children and Learning Act
  • Fit Notes?