Looking back at 2011, Case law update: Top 5 cases, What to look for in 2012, Conclusions & questions

1. Annual Employment Law
Review – Key Developments
David Poddington, Partner
Jenny Arrowsmith, Associate
Tom Draper, Solicitor
8 December 2011

2. Outline
 Looking back at 2011
 Case law update: Top 5 cases
 What to look for in 2012
 Conclusions & questions

4. Paternity Leave Changes
 Additional Paternity Leave
 Applies to parents of babies born (and adoptive parents notified of a match) on or after 3 April
2011.
 Gives fathers the right to take up to 26 weeks paternity leave, if:
 they remain employed by the employer until the week before the first week of their APL;
 the child’s mother has been entitled to statutory leave; and
 the mother (or primary adopter) has returned to work early and has stopped claiming the
relevant pay.
 APL must be taken as multiples of complete weeks and as one period.
 The minimum amount of APL that can be taken is 2 weeks.
 The maximum amount of APL that can be taken is 26 weeks.
 APL must be taken in the period beginning 20 weeks after the child's date of birth and ending
12 months after the child’s date of birth.

5. Bribery Act 2010
 Came into force on 1 July 2011
 Introduced a new offence to prohibit someone obtaining or retaining a
business advantage through “bribery”
 Liability of non compliance for both individuals and company
 Civil liability – unlimited fines
 Criminal liability – maximum jail sentence of 10 years
 Defence: if organisation has “adequate procedures” in place
 Risk assessments – regular and comprehensive to assess exposure risks to bribery
 Top down commitment – establish a culture acknowledging that bribery is never accepted
 Due diligence – policies and procedures covering all parties to the business relationship
 Clear, practical and accessible policies and procedures - communicated to all in organisation
 Effective implementation – ensure policies are embedded throughout the organisation
 Monitoring and review – to ensure compliance and identify any issues

6. Default Retirement Age (DRA)
 The DRA was abolished on 1 October 2011
 For an employer to dismiss an employee fairly on the grounds of retirement
they must have issued notice of retirement on or before 5 April 2011 and the
employee must have reached 65 on or before 30 September 2011.
 The choices for employers now are either to:
 Abandon a retirement age – face up to the prospect of performance management of older
employees, including very old employees, and the risk of claims as a result; or
 Retain a retirement age – unless it can be justified, any compulsory retirement age will be age
discrimination and an unfair dismissal.
N.B Case law on justifying retirement ages now eagerly anticipated..........

7. DRA
 How to justify a retirement age:
 Workforce planning;
 Health and safety;
 Physical fitness;
 Having an age balanced workforce;
 Consider the alternatives (less discriminatory ways)
 Objective, not subjective, justification
 Evidence – assertions alone are not enough
 Implications of DRA removal
 “Workplace discussions” under ACAS Guidance
 Need a potential fair reason for dismissal
 Consider alternatives, e.g. Compressed hours, job sharing, redeployment
 Recruitment of older employees becomes more likely
 Need for consistent management of all employees
 Flexible working requests.
 Facilitating recruitment and retention of younger employees;
 Managing congenial working environment; and
 Cost.

8. Agency Workers Regulations 2010
 The Regulations came into force on 1 October 2011
 The Regulations apply to workers employed or engaged by an agency and:
 Assigned to a hirer to provide a service or who work under a contact to provide services;
 Work on behalf and for an agency; and
 Assigned to a hirer to work temporarily under the hirers supervision and direction.
 The Regulations do not apply to:
 self-employed independent contractors;
 consultants; and
 employees placed into permanent employment via an agency.

9. Entitlements
 Day 1 rights:
 Agency workers must be given access to certain facilities and be provided with
information on job vacancies, as they would if they were employed by the hirer
directly
 It is the hirer’s responsibility to provide such access
 12 week rights:
 Agency workers are entitled to the same basic terms and conditions which they
would have been entitled to if they had been employed direct by the hirer for the
same job
 It is primarily the agency’s responsibility to provide these rights
Alternatives / Exemptions
 Change agency workers or employ them directly
 Increase the use of casual labour - zero hour contacts
 The Swedish Derogation
 Managed Service Contracts

11. Case law update 2011
Davies v Sandwell Metropolitan Borough Council (EAT)
 Employers proposing to dismiss an employee who is on a final written warning
should not assume that the warning will be treated as valid by an Employment
Tribunal simply because the employee did not appeal against it at the time.
Implications
 Ensure that a fair procedure is followed at all stages.
 Review previous warnings before dismissal.

12. Case law update 2011
Noor v Foreign & Commonwealth Office (EAT)
 Adjustments to an interview process should still be made even if it would not
have guaranteed that the employee would get the job.
Implications
 Although the purpose of a reasonable adjustment is to prevent a disabled
person from being at a substantial disadvantage, an adjustment does not
have to be completely effective to be “reasonable”
 Consider adjustments prior and at interviews to remove disadvantage at that
stage, including enabling applicants to be as prepared as other candidates.

13. Case law update 2011
Marcroft v Heartland (Midlands) Ltd (Court of Appeal)
 An employee who had handed in his notice shortly before a TUPE transfer
had continued to be assigned to the undertaking despite not attending the
office and only doing a small amount of work from home.
Implications
 TUPE transfers the employment of those who have resigned from transfer at
date of transfer but have not yet left.
 There is a duty (under TUPE) to provide representatives of affected
employees with certain information, but this duty does not extend to notify
individual workers personally.

14. Case law update 2011
X v Mid Sussex Citizens Advice Bureau and others (Court of Appeal)
 Volunteers engaged under contracts “personally to do work”, or in a work
experience or vocational training placement may be entitled to protection under
UK discrimination legislation.
Implications
 Organisations using volunteers should review existing arrangements and
consider whether contracts are used and, if so, whether that practice will
continue, and what exposure they may already have for discrimination claims.
 If any exposure to discrimination claims exists then steps should be taken to
minimise liability and care should be taken when terminating any volunteer
arrangements.

15. Case law update 2011
Alemo-Herron v Parkwood Leisure Ltd (Supreme Court)
 TUPE transferred employees may still be entitled, post-transfer, to pay
increases negotiated under industry wide collective bargaining arrangements,
even though their new employer is not a party to collective agreement.
Implications
 This case could be regarded as bad news by private and third sector service
providers involved in public sector outsourcing.
 ECJ referral has been made.

17. What to look for in 2012
Tribunal reform
 Employer and employee protected conversations
 Compulsory lodging claims with ACAS before an ET claim can be lodged
 The qualifying period for unfair dismissal to be increased from one year to two
years with effect from 1 April 2012.
 Fees are to be introduced for Tribunal claims
 £250 when lodging a claim?
 £1,000 payable by the Claimant when the hearing is listed?
 Higher fees if the claim is worth over £30,000?
Implications
 Less ET claims? Less vexatious claims?
 More discrimination or statutory right claims?

18. What to look for in 2012
Collective Redundancy & TUPE Consultations
 Redundancy Consultation
 Single, short consultation period to replace the 30 to 90 day current structure;
 More guidance on when consultation starts and ends and when notice can be given
and end; and
 The overlap between collective and individual consultation.
 TUPE Consultation is likely to address issues such as:
 Is a separate category need for change of service provider, post-transfer change or
harmonisation of terms and transfers offshore;
 In relation to informing and consulting – clarity on where there is a redundancy
exercise as part of a transfer, where there will be two connected but distinct
obligations to inform and consult.

19. What to look for in 2012
Auto-enrolment and new employer pension duties – October 2012
 Four year staging process.
 Employers must automatically enrol eligible jobholders in a pension scheme.
 Employer’s own occupational pension scheme;
 Personal pension scheme; or
 National Employment Savings Trust (NEST).
 Staging date determined by number of people on PAYE scheme and reference number.
 Compulsory employer/employee contributions
 Eligible jobholder:
 An employee;
 Between the age of 22 and state pension age; and
 Earning at least £7,475 per year.
 The Pensions Regulator will write to employers 12 months before their staging date to confirm
the date that they are required to comply with auto-enrolment.

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from Taylor & Emmet LLP
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