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Employment Law: An Update

Employment Law: An Update. January 2006 Alison Bell. Hot Topics: . Discipline and grievance Long term sickness Changing terms and conditions Compromise agreements. New Legislation:. TUPE 2006 Work & Families Act 2006 Recent Cases What's in the pipeline. Hot Topics .

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Employment Law: An Update

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  1. Employment Law: An Update January 2006 Alison Bell

  2. Hot Topics: • Discipline and grievance • Long term sickness • Changing terms and conditions • Compromise agreements

  3. New Legislation: • TUPE 2006 • Work & Families Act 2006 Recent Cases What's in the pipeline

  4. Hot Topics Discipline and grievance

  5. Disciplinary/dismissal and grievance procedures • Statutory Dispute Resolution Regulations • In 2 parts: Disciplinary/Dismissal Procedure and Grievance Procedure • Standard 3 step procedure • Put it in writing • Meet and discuss • Appeal

  6. The disciplinary/dismissal procedure • Mandatory Disciplinary/Dismissal Procedure • An additional obligation • If the employer fails to comply: • Automatic finding of unfair dismissal; and • An increase in compensation

  7. Points to note in the standard procedure • Step 1 – Put it in writing, send it to the employee and invite the employee to a meeting • Step 2 – Arrange the meeting before action is taken • Step 3 – If the employee appeals, invite the employee to a further meeting and inform the employee of the final decision

  8. Practical implications • Post employment disputes • Overlapping procedures

  9. Practical Implications • Retirement • Redundancy

  10. Practical implications • Probationary periods • Fixed term contracts

  11. Grievance and disciplinary procedures • A wide definition of “grievance letter” • Solicitor’s letter (open or without grievance) • Flexible working request letter • Complaint about handling of earlier grievance • Solicitor’s letter asking for settlement not an appeal • Information required as part of a DDP • Employers must not rely on expired disciplinary warnings

  12. Long term sickness

  13. ACAS Code of Practice • Investigation • Establish underlying cause • No reason for absence – discipline • Genuine illness – capability • Sympathetic and considerate approach Consultation, consultation, consultation !

  14. Long term sickness - capability • Regular contact • Consult employee • Employee’s medical evidence • Own medical evidence • Need to replace

  15. Long term sickness (2) • Warn employee of dismissal • Meeting with employee to consider • Alternative employment • Reasonable adjustments

  16. Decision • Nature of the illness(es) • Likelihood of recurrences • Other sickness absence? • Length of absence

  17. Decision (2) • Spaces between absences • Need for particular employee • Impact on others • Length of employment • Consistency

  18. Varying terms and conditions

  19. Varying terms and conditions • Employment law implications • Possible routes forward • Contractual change • Consultation • Redundancy situation

  20. Contractual change ? • Terms and conditions • Employee handbook • Individual agreements • Longstanding practice

  21. If no contractual change • Discuss at consultative forum • Individual consultation process • Reason for objection • Discrimination issues • Disciplinary procedure for refusals

  22. If contractual change • How important • Business reasons

  23. Introducing contractual change • Four options • Through a contractual right • By agreement • By imposing the change • By dismissal and re-engagement

  24. Imposing the change • Resign and claim constructive dismissal • Continue to work under protest • Claim unlawful deduction from wages (if there is an effect on pay) • Claim breach of contract • Claim discrimination (eg if there is a negative effect on a particular group of employees)

  25. Dismiss and re-engage • Wrongful dismissal • Unfair dismissal whether or not re-engaged • Business need, ‘some other substantial reason’

  26. Redundancy • Very significant changes • Consultation with employees’ representatives • Individual consultation

  27. Varying Terms and Conditions – Summary • Employment Law implications • Possible routes forward • Contractual change • Consultation • Redundancy situation

  28. Compromise Agreements

  29. The technical requirements • When to use • Without prejudice conversations • Tactical considerations

  30. New Legislation

  31. Summary of main TUPE changes • More transactions likely to be TUPE transfers • Old employer can be liable for failing to consult • Old employer must disclose information to new employer • New employer has (limited) ability to change contracts of employment • Insolvency

  32. Work and Families Act • Maternity and adoption pay • Keeping in touch • Early return to work notice • Flexible working for carers • Paternity pay • Minimum annual leave entitlements

  33. Practical implications • Pay administration • Increased warning of return to work • Reasonable contact – KIT days • Sharing maternity/adoption leave • Impact of increase flexible working for carers

  34. Recent Cases

  35. Case law developments • Disability absence and sick pay schemes • Sickness vs disability • Vicarious liability for harassment • Whistleblowing – detriment after termination • Discrimination by association • ‘On racial grounds’

  36. Case law developments • Length of service and pay • Employers vicarious liability for discrimination • Public holidays for part time workers • Using the right procedures

  37. In the pipeline

  38. Future legislation • Commission for Equality and Human Rights – Oct 07 • Data protection fully implemented – Oct 07 • Smoking bans – 2007/08

  39. Smoking • Smoke free premises • Signage requirements • Vehicles • Penalties

  40. Age Discrimination January 2006

  41. Age discrimination • Outline of the Regulations • Specific issues • Recruitment • Service related benefits • Retirement • Other areas of impact

  42. General observations • Applies to all applicants/workers • Irish experience: 22% of claims about age • Many existing policies/practices are ageist • Uncapped compensation

  43. Some statistics… • 40% increase in age claims in the US • High numbers already facing age discrimination • Big cultural change required

  44. Main principles • Direct – different treatment actual/perceived age • Indirect – policy/practice/criterion disadvantages • Harassment • Victimisation • Positive discrimination • Selection must be age neutral

  45. Main Principles - Justification • Direct and indirect • Proportionate and legitimate • Evidence not assertion

  46. Other exemptions to AD • Genuine occupational requirements (very limited) • Pay based on national minimum wage • Complying with a statutory authority e.g. health & safety, under 18s doing bar work • Occupational pension schemes • Life Assurance • Some pay and other service-related benefits • Contractual redundancy payments

  47. What else… • Employers liable for acts of employees • No age limits for unfair dismissal and redundancy • Default retirement at 65 • Right to request to work longer

  48. Enforcement & Remedy • In the Employment Tribunal • Brought within 3 months of the discriminatory act • Provided compliance with the Statutory Grievance Procedure • Compensation = Uncapped

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