Clarkson Wright and Jakes LLP Valiant House 12 Knoll Rise Orpington, Kent, BR6 OPG. 01689 887887 EMPLOYMENT LAW UPDATE FOR HR MANAGERS + THE OCTOBER CHANGES

Clarkson Wright and Jakes LLPValiant House12 Knoll Rise

Orpington, Kent, BR6 OPG.01689 887887

EMPLOYMENT LAW UPDATE FOR HR EMPLOYMENT LAW UPDATE FOR HR MANAGERS + THE OCTOBER CHANGES MANAGERS + THE OCTOBER CHANGES

AND THE LATEST CASESAND THE LATEST CASES

Employment Law UpdateEmployment Law Update

Employment Law

Seminar

24 November 2009

April and October changes April and October changes and forthcoming legislationand forthcoming legislation

PRITTI BAJARIA

APRIL 2009APRIL 2009

• Increase in Statutory Annual Holiday Entitlement (www.bis.gov.uk)

• Increases to rates of SSP, SMP, SPP and SAP

• Register of Judgments, Orders and Fines


• Repeal of Statutory Dispute Resolution Procedures

• Changes to National Minimum Wage enforcement


• Extension of right to request flexible working

OCTOBER 2009OCTOBER 2009

• Increase to maximum limit of a weeks’ pay

• Changes to National Minimum WageIncrease to ratesProhibition on tips

OCTOBER 2009OCTOBER 2009

• Supreme Court Rules 2009 came into force

• Vetting and Barring Scheme for safeguarding vulnerable adults and children

FORTHCOMING LEGISLATION FORTHCOMING LEGISLATION

• The Equality Bill

• Review of Default Retirement Age

FORTHCOMING LEGISLATIONFORTHCOMING LEGISLATION

• Additional Paternity Leave and Maternity Pay

• Agency Workers Right to Equal Treatment

Recent case law reviewRecent case law review

WILLIAM ADDIS


Introduction


Recent headlines

• KPMG forced to pay £45,000 in discrimination case

• Employment tribunal judge finds claim by dyslexic former KPMG employee for unlawful discrimination is well founded.

• Accountancy Age, 06 Oct 2008


Recent headlines• Dismissal of probation officer for

involvement in sadomasochism not breach of human rights

• Fair to dismiss an employee whose private life was incompatible with job and brought employer into disrepute.

• Practical Law Company 7 October 2008


Recent headlines• Romanian accountant awarded £750

following £40 million compensation claim• An accountant who made a £40 million

compensation claim alleging bosses at a top City firm made her feel "like a prostitute" has been awarded just £750 for victimisation.

• The Telegraph online 25 Sep 2009


The Top Five


Case 1: Retirement of employees

• The Heyday case• 2009 EWHC 2336, 25 September 2009• The facts• The decision• The implications


Case 2: Recruitment of employees

• Cheltenham Borough Council v Laird• 2009 EWHC• The facts • The decision • The implications


Case 3: Redundancy and Discrimination of employees

• Grainger plc and others v Nicholson • UKEAT/0219/09• The facts• The decision• The implications


Case 4: Insolvent businesses and employees

• Oakland v Wellswood (Yorkshire) Ltd• The facts• The decision• The implications


Case 5: Costs in tribunals against Employees

• Daleside Nursing Home Ltd v Matthew• UKEAT/0519/08• The facts• The decision• The implications


Conclusions

Disciplinary & Grievance Procedures and Disciplinary & Grievance Procedures and the ACAS Code following the repeal of the the ACAS Code following the repeal of the statutory proceduresstatutory procedures

ROSA BRENNAN

The Statutory Disciplinary and Grievance The Statutory Disciplinary and Grievance ProceduresProcedures

• Repealed in April 2009• Transitional arrangements no longer

relevant• Replaced by the ACAS Code of

Practice and the ACAS Guidance• The Guidance does not have to be

taken into account by the Tribunal• Breach of the Code has consequences

DISCIPLINARY PROCEDUREDISCIPLINARY PROCEDUREWhat has changed?What has changed?

• Breach of Code will not make an organisation liable to proceedings (no automatically unfair dismissal)

• Only applies to disciplinary situation• Does not apply to dismissal on the

grounds of redundancy or termination of a fixed term contract

• Time limits have changed (back to 3 months – no 3 month extensions)

• Adjustments to compensation now maximum 25% up or down

Why is it important to follow the Code?Why is it important to follow the Code?

• Avoid an unfair dismissal claim• It can affect the level of

compensation • Tribunals will take the Code into

account when considering cases• Tribunals can adjust awards in

relevant cases by up to 25%

How should misconduct or poor How should misconduct or poor performance be handled?performance be handled?

• Investigate the issues• Inform the Employee of the issues

in writing• Hold a disciplinary hearing• Inform the Employee of the decision

in writing• The Employee has the right of

appeal

Areas of UncertaintyAreas of Uncertainty

• Involving Employees in developing procedures

• Evidence at disciplinary hearings • Only claims by Employees are

affected• Uncertainty over compensation

Practical Steps for EmployersPractical Steps for Employers

• Involve Employees and/or their reps in developing any new disciplinary procedures

• Manage conduct and performance issues pro-actively

• Investigate issues thoroughly• Keep written records• Communicate decisions effectively and

promptly

GRIEVANCESGRIEVANCES

• Why is it important to follow the ACAS Code?

• It can avoid a potential claim• It can affect the level of

compensation

How has the law changed?How has the law changed?

• Best practice advice should not change significantly

• Rules on admissibility of claims, time limits and compensation have changed

How Grievances should be How Grievances should be handledhandled

• The Employee should raise the grievance in writing

• The Employer should hold a meeting and investigate the complaint

• The Employee can bring a companion• The Employee has the right of appeal

Areas of UncertaintyAreas of Uncertainty

• Involving Employees in developing procedures

• Only Employees are covered• Handling grievances during a disciplinary

procedure• Do the parties have to try mediation?• Time limit for bringing claims is much

shorter• Uncertainty over compensation

Practical Steps for EmployersPractical Steps for Employers

• Involve Employees and/or their reps in developing any workplace procedures

• Encourage managers to resolve issues pro-actively

• Train managers to handle grievances effectively

• Keep written records• Communicate decisions effectively and

promptly setting out reasons

Overview of dealing with the Overview of dealing with the employment aspects of the employment aspects of the RecessionRecession

YASMIN AWAN


“Jobless numbers show smallest rise since spring 2008”

(News headline 11 November 2009

• The Office for National Statistics (ONS) said unemployment defied expectations with the jobless total rising by a smaller than expected 30,000 to 2.46 million. That was the lowest increase since May last year.

• The ONS said that numbers in work actually rose by 6,000 for the first time since summer last year. The number of full-time jobs dropped by 80,000, a fall offset by a 86,000 rise in the number of people in part-time work to a record high of 7.7 million. A 40% rise since last year.


• Redundancy 1IntroductionWhat is redundancy?Redundancy is defined as:

An employee is dismissed if his dismissal is wholly or mainly attributable to:

(a) the fact that the employer has ceased or intends to cease

(i) to carry on the business for the purposes of which the employee was employed by him; or

(ii) to carry on that business in the place where the employee was employed; or

(b) the requirements of that business –

(i) for employees to carry out work of a particular kind; or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed

have ceased or diminished or are expected to cease or diminish.


• Redundancy 2Redundancy Selection

Non-CompulsoryVoluntary redundancyEarly retirement

CompulsoryPool of redundanciesRedundancy selection criteria –

objective, non-discriminatory and applied consistently

Automatically unfair selection criteria.


• Redundancy 3The Redundancy Consultation Period

Collective consultationIndividual consultation


• Redundancy 4Employee entitlements on redundancy

Redundancy PaymentsNoticeHolidayAlternative employmentTrial periodTime off


• Redundancy 5Practical help for employeesAdvise employees to contact local

jobcentre for vacancies or trainingOutplacement counsellingContact local employers who may have

vacanciesGuidance on CV’s and interview techniquesRedeployment if business picks up


• Redundancy 6Redundancy pitfalls Potential claimsUnfair redundancy selectionFailure to offer suitable alternative

workFailure to properly consult

Practical considerationsCostDetrimental long term effectsMarket reputationDemoralising for the workforce


• Redundancy 7 Redundancy Checklist

1. Are redundancies necessary?2. How many redundancies are there

to be? More than 20 within 90 days or less? (Include voluntary)

3. Elect employee representatives.4. Decide upon appropriate selection

criteria/pools for selection and the selection panel.

5. Commence consultation with employee representatives.

6. General announcement to workforce (invite voluntary redundancies)

7. Notify Department of Employment8. First individual consultation

meeting. Discuss alternative employment (letters).

9. Apply the selection criteria.10. Further individual consultation

meetings.11. Confirm redundancies in writing –

redundancy payment, notice, time off to look for jobs/training. Consider help for employees – right of appeal.


• Avoiding Redundancies – the Commercial reality


Top 10 Alternatives to Redundancy

1. Improving Efficiency2. Cutting Absences3. Outsourcing/Selling part of business4. Pay Deferral Schemes5. Reducing Hours


6. Overtime Bans7. Reducing Pay8. Reducing Headcount9. Temporary Stoppages10.Recruitment FreezesPotential Claims

Holidays and SicknessHolidays and Sickness

LIZZIE LEAVER


• Introduction


• Case 1: Stringer & Others v HM Revenue & Customs [2009] IRLR 214, ECJ

• The Facts• The Decision• The Implications


• Case 2: HM Revenue & Customs v Stringer and others [2009] IRLR 67,HL

• The Facts• The Decision• The Implications


• Case 3: Francisco Vicente Pereda v Madrid Moviidad SA C-277/08; 10/09/09

• The facts• The decision• The implications

Documents

Clarkson Wright and Jakes LLP Valiant House 12 Knoll Rise Orpington, Kent, BR6 OPG. 01689 887887 EMPLOYMENT LAW UPDATE FOR HR MANAGERS + THE OCTOBER CHANGES