employ law update 27-01-2011

8/3/2019 Employ Law Update 27-01-2011

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Employment law update forCIPD tutors and students

January 2011


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Employment law update for CIPD tutors and students

January 2011


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Employment law update for CIPD tutors and students: January 2011

Written by Stephen Taylor, CIPD Examiner for Employment Law and Senior Lecturer in HRM,Manchester Metropolitan University Business School.

This document is intended for tutors and students studying the employment law module of CIPDsAdvanced Level Qualifications and Professional Development Scheme. Those studying the CIPDsIntermediate Level Qualifications and HR practitioners may also find it useful.

It provides a comprehensive update at the time of writing on the most important employment lawdevelopments in the UK and anticipates the further changes that lie ahead. It is planned to update itevery 6 months.

CIPD members can keep up to date with legislative and case law developments since this documentwas written at the Employment Law at Work area of the CIPD website

Non-members can see our Employment law developmentsfactsheet which covers major law changes.

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Contents

Introduction 1The Coalition Government 1Employment tribunal claims 2

Recent statutory developments 3Acas code of practice on time off for trade union activities 3Blacklists of union activists 3SMP, SPP, SAP and SSP rates 4Right to request time off for training 4Fit notes 4Immigration limits 4Equality Act 2010 4National Minimum Wage 7Bonfire of the quangos 7Abolition of the two-tier code 7

Significant developments in case law 8Sexual harassment 8Age discrimination 8TUPE 9Redundancy consultation 9Disability discrimination 9Constructive dismissal 10Industrial action 10Equal pay 12Summary dismissal 12Mandatory retirement 13Other interesting cases 14

Future developments 16Unfair dismissal compensation 16Abolition of mandatory retirement 17Additional paternity leave 17Bribery Act 2010 18SMP, SPP, SAP and SSP rates 19Positive action in recruitment and promotion 19Right to request flexible working 19Royal wedding 19New rights for agency workers 19Parental leave 20New pension rules 20

Other future possibilities 21

References 21

Useful contacts 21

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Introduction

The Coalition Government

At present there is a need for caution when setting out future developments in employment law.Already there have been several instances of ministers stating an intention to do something, only to withdraw it soon afterwards. There are also a number of reviews and consultations that are in progress, the outcomes of which are yet to be fully announced. It is also clear that most planned changes in the field of employment are having to be negotiated within government and that compromises are having to be made. This makes it hard to predict what exactly is going to happen beyond next summer. The reasons are as follows:

the Conservative and Liberal Democrat manifestos differed in important respects on someareas of employment policy

there was little in the post-election Queens Speech on employment matters, suggesting thatlittle major legislation beyond that which was already in the pipeline is planned for 2011

the Coalition Agreement is quite vague on employment regulation, simply making general

pronouncements of intent.

The Coalition Agreement which was negotiated in the days following the general election contained thefollowing:

The Coalition Government plans to phase out the 'default' retirement age of 65.

The Coalition Government supports the need to introduce extended paternity leave along thelines proposed by the previous Labour government.

The Coalition Government aims to retain the UK's opt-out system from the 48 hour workingweek.

The Coalition Government aims to extend the right to request flexible working.

The Coalition Government is committed to ending 'gold-plating' of European Union (EU) lawswhen transposing principles into UK legislation.

The Coalition Government plans to put an annual cap on the number of migrants from outsidethe EU entering the UK to work.

There is also a general commitment in the Coalition Agreement to 'review employment andworkplace laws, for employers and employees, to ensure they maximise flexibility for bothparties while protecting fairness and providing the competitive environment required forenterprise to thrive'.

A number of reviews of relevance to employment regulation are now ongoing / have recentlyreported that may lead to changes in employment law over the longer term:

o health and safety law under Lord Youngo poverty under Frank Field MPo public sector pensions under John Huttono public sector pay under Will Hutton

There is also a proposal to 'look to promote gender equality on the boards of listed companies'.

The Coalition Government has also stated that it wishes to regulate in order to deter thepayment of 'unacceptable' bonuses in the financial sector.

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Before the general election the Conservative Party advocated the following measures aimed at'de-gold-plating' existing / proposed EU law :

o amending the agency workers regulationso removing the 'service provision' elements from TUPEo reviewing regulations on part-time and fixed term workers

The Conservatives also argued for a 'one law in one law out' approach to business regulationand were also committed in general terms to reviewing the employment tribunal system with aview to making it simpler and more efficient.

They also announced plans for incentives aimed at encouraging employers who were makingredundancies to help employees find new jobs (that is by engaging outplacement consultants?)

Pre-election, the Liberal Democrats advocated the use of 'name blind' application forms inrecruitment situations.

The Liberal Democrat manifesto contained a commitment to extend the right to request flexibleworking to all employees.

Some of this will happen, other parts will not. It is all going to depend on what is agreed by ministerswho have rather different approaches to employment regulation.

It is worth pointing out, however, that almost all of the ministerial posts that directly relate toemployment law matters are held by Liberal Democrats rather than by Conservatives:

Business Secretary: Vince Cable MPEqualities Minister: Lynne Featherstone MPPensions Minister: Steve Webb MPEmployment minister: Ed Davey MP

This may well mean that Liberal Democrat priorities get more of a look in than Conservative ones inthis area of government policy. For example, although ministers have re-stated their commitment to the

'one in one out' policy on employment law, there is no sign whatever of any significant repeals beingintroduced as yet.

This may yet happen as a result of the setting up by ministers of a website called Your Freedom onwhich people could leave suggestions for regulations that they think ought to be repealed. The websitehas now closed.

Employment tribunal claims

The other issue worth highlighting is the recent, very considerable growth in the number of employmenttribunal claims that are being lodged.

In July 2010 the Employment Tribunal Service (ETS) published its annual report, including the statisticson the cases dealt with between April 2009 and March 2010. These are usually unremarkable, but thisyear there were some interesting surprises.

The most striking finding was that the number of claims submitted to (and accepted by) employmenttribunals increased hugely last year to 236,100. This represented an increase of 56% on 2008-9.

The extent of growth over time is enormous. Ten years ago the figure was just 103,935 and twentyyears ago a mere 34,703, reflecting increases in both the amount of employment regulation and thewillingness of employees to pursue grievances against their employers in court.

This year's rise is accounted for partly by a rise in multiple claims (that is, groups of claimants pursuingthe same case against their employer on a collective basis) and partly by rises in the number of casesrelated to dismissal.

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The number of dismissal claims always rises in a period of recession and for a few years afterwards.This is because more people are dismissed as redundancy programmes take effect and also becausedismissed employees typically take much longer to find new jobs.

Moreover, as the level of compensation awarded to winning claimants in unfair dismissal cases isdetermined in large part by the extent of their lost earnings, recessionary conditions also mean that

former staff are more likely to consider it worth their while to pursue a claim than they would if theyfound a new job within a few weeks of being dismissed.

The ETS also reported increases in the level of the awards they made to successful claimants. In unfairdismissal cases the average award made in 2009-2010 was 9120. The figures for discriminationclaims were, as always, rather higher reflecting the practice of making awards for 'injury to feelings' insuch cases as well as for financial losses. The average awards made in cases relating to sex, race andsexual orientation discrimination was close to 19,000. It was rather lower for religious and agediscrimination (5000) but much higher in cases concerned with disability discrimination (52,087).

The biggest award made by an employment tribunal was 729,347. This was made to a sportsjournalist who was sacked while he was on leave suffering from a breakdown that had been caused bybullying at work.

The report also confirms how very rare it remains for either claimants or respondents in tribunal casesto have costs awarded against them. This really only happens when a party insists on pursuing acompletely hopeless claim and it only happened in 412 cases last year.

Recent statutory developments

Acas Code of practice on time off for trade union activities

From 1 January 2010 a revised Acas Code of practice on time off for trade union duties has applied,replacing the last one issued in 2003.

There are no major changes of substance. The revised Code takes account of e-learning (urging itsuse where possible by union officials for training purposes) and asks employers to provide areas forconfidential discussions to take place between union officials.

The revised Code also states that it is not necessary in most cases for employers to pay for time spentby union officials on union business outside normal working hours.

Blacklists of union activists

Since 1990 the law has sought to protect freedom of association by making it unlawful to fail to recruit(or re-recruit) someone for a reason related to their membership or non-membership of a trade union.

At present this only covers trade union membership. Employers can still refuse to employ people

because of their past record of trade union activity.

The Employment Relations Act 1999 gave the Government the right to issue Regulations prohibitingthe maintenance of blacklists of union troublemakers by employers or employers associations. Thisright was not exercised for over a decade on the grounds (according to ministers) that blacklisting wasno longer as common as it was in the 1980s and 1990s.

In May 2009, however, it was announced that new Regulations outlawing blacklisting of this kind wouldsoon be issued. This followed a finding by the Information Commissioner against the maintenance of asecret blacklist by a group of employers in the construction industry.

The Employment Relations Act 1999 (Blacklists) Regulations 2010 (SI 2010/493) came into force on 2March 2010.

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SMP, SPP, SAP AND SSP rates

From 4 April 2010 the rates for Statutory Maternity Pay (SMP), Statutory Paternity Pay (SPP) andStatutory Adoption Pay (SAP) rose to 124.88 a week.

The rate of Statutory Sick Pay (SSP) remained at 79.15 in 2010, but the lower earnings threshold

below which an employee does not have the right to SMP, SPP or SAP rose to 97 a week.

Right to request time off for training

This right to request time off for training which came into force on 6 April 2010 applies to organisationsthat employ over 250 people. The legislation (passed by the Labour Government) envisages anextension to smaller employers from April 2011.

This is still under review by Coalition Government ministers and may not in practice be implemented infull. Smaller employers may well be exempted.

The right is restricted to employees who have completed six months' service.

It operates in a similar way to the existing right to request flexible working. That means one opportunitya year to make a quite specific request and a duty on employers to treat such requests seriously. Thesame eight reasons that exist for legitimately turning down requests to work flexibly apply for theserequests too.

Time-off will be unpaid unless the employer wishes to contribute. Similarly, employers are not obligedto contribute to any of the training costs.

Fit notes

The existing and very long-established sick note scheme run by the Department of Health wasreplaced from 6 April 2010 with a new scheme. Doctors will now be able to certify that an employee isunfit for work or 'may be fit for some work, taking account of the following advice'. They will also be

able to suggest ways of helping an employee get back to work.

The aim is to reduce absence rates by making it harder for employees to take time off 'sick' when intruth they are fit to carry out some, if not all, of their duties.

Immigration limits

In July 2010 the Home Office announced that in order for would-be migrants from non-EU countries toenter the UK to work under Tier 1 (formerly the highly skilled migrant programme), 100 points would berequired rather than 95.

In November 2010 the Government reaffirmed its intention to cap non-EU immigration from April 2011.The intention is that in 2011-12, only 21,700 will be admitted under Tier 1, a further 20,700 under Tier2, and 1000 under a new 'exceptionally talented' category. Caps for the other tiers are yet to beannounced.

Equality Act 2010

Most of the employment-related provisions of the new Equality Act 2010 (The Act) came into force on 1October 2010. It was brought forward by the Labour Government and received Royal Assent justbefore it lost power at the General Election.

The new Coalition Government is introducing it in two slices - October 2010 and April 2011 - but hasapparently decided to abandon some of the more controversial measures.

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As is often the case with new pieces of employment law, a great deal has been written about the Actwhich tends to shed more heat than light and which over exaggerates its practical significance foremployers. The truth is that the Act, while being huge in terms of its volume, creates precious few newemployment rights of any great significance. For the most part it is simply concerned with:

consolidating diverse pieces of equality legislation into one single statute

ensuring that our statutes catch up with recent developments in the case law, and particularlydecisions of the European Court of Justiceharmonising the terminology that is used across different areas of equality law

clarifying the law in areas where things have not always been so clear in the past.

The following is a list of the main employment-related changes that came into force on 1 October 2010:

Discrimination against people on grounds of gender reassignment and pregnancy andmaternity were explicitly added to the existing list of 'protected characteristics'. The full list ofprotected characteristics reads as follows:

o ageo disabilityo gender reassignmento marriage and civil partnershipo pregnancy and maternityo raceo religion or beliefo sexo sexual orientation.

The requirement for gender reassignment to be occurring 'under medical supervision' at thepoint of discrimination in order for an individual to be able to bring a claim has been removed.

The wording of the definition of direct discrimination has been changed, though not the legalmeaning. The new wording is 'less favourable treatment because of a protected characteristic'.This means that associative and perceptive discrimination in respect of all the protectedgrounds are now included.

Associative and perceptive discrimination, as well as harassment laws, do not however applyin the case of civil partnerships and marriages. Pregnancy and maternity are also excluded asgrounds that can lead to harassment claims.

The need for a comparator in victimisation claims has been removed. It is now simply sufficientto demonstrate that a detriment has been suffered for a reason related to the employee'sactions.

The principle of indirect discrimination, long established in the fields of sex and racediscrimination and present in the more recent discrimination laws has been extended to cover

disability discrimination. This measure could have the most impact in practice.

The highly controversial 'Malcolm judgement' has been overturned with the creation of a newtype of disability discrimination labelled 'discrimination arising from disability'. There istherefore now no requirement for a disabled person to establish that they have been treatedless favourably than any comparator.

The statutory definition of a 'disability' has been amended so that there is no longer a need toshow that someone's impairment affects one of eight named 'bodily functions'. Therequirement for a condition to have an adverse effect on 'normal day to day activities' remains,but a wider range of conditions will now potentially be covered. The exclusions for sociallyundesirable mental conditions remain, with voyeurism being added to the list. Hay fever,however, can now potentially give rise to claims.

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Confusion in the previous disability discrimination law is clarified by stating that an employerwill not be committing an act of disability discrimination if at the time it could not reasonablyhave been expected to know about an employee's disability.

Extends disability discrimination to cover situations in which otherwise suitable job applicantsare rejected after having been asked questions about their health, having completed health

questionnaires or having undergone medical examinations. There are, however, severalsituations specified in the Act in which health-related questions can be asked lawfully, includingthose in which a significant part of a job could not be carried out by someone with a particulardisability even if reasonable adjustments were made.

Equal pay law has been amended in mainly minor ways to make it more easily understood andto bring occupational pensions fully within its remit. 'Comparators' are now 'colleagues' while'genuine material factors' are now simply 'material factors'.

Contractual 'pay secrecy' clauses have been made unenforceable in a bid to make it easier forcolleagues to find out how their pay compares to that of their colleagues.

The power of employment tribunals is increased to make recommendations about an

employer's practices in rulings on discrimination matters so that they apply across a wholeworkforce and not just the individual claimants.

There is a specific reference to 'third party harassment', which means unlawful harassmentperpetrated on a member of staff by a customer or a supplier, or anyone else who is not afellow employee. This makes the employer liable if it knows about the harassment and has nottaken 'reasonably practicable steps' to stop it from happening. It must, however, have occurredon at least two previous occasions before the employer becomes legally liable.

Lawyers specialising in equality law have also spotted that the Act, whether intentionally or not, opensup a new potential avenue for claimants to pursue when they consider that they are not being paidequally vis a vis someone of the opposite gender. The argument runs as follows: It may becomepossible for a claim that relates to pay and which before October 2010 would have to have been

brought under the Equal Pay Act 1970 to be able to be brought instead under the regime that formerlyapplied under the Sex Discrimination Act 1975. If so, this will mean that a woman seeking todemonstrate that she is underpaid will no longer have to cite a male comparator (or vice versa).Instead she will simply have to demonstrate that 'but for her sex she would have been treated morefavourably'.

If this proves to be a runner in practice, it raises the possibility that 'injury to feelings' awards will nowbe made in equal pay cases in addition to back-pay, increasing substantially the compensation that asuccessful claimant can win and therefore encouraging many more speculative claims to be made.

What employers need to do

Whenever new law comes into force, substantial numbers of test cases are brought which seek toclarify exactly what the impact will be. Until these have run their course it makes sense for employersto err on the side of caution so as to avoid tribunal actions.

Employers should review any existing policies and practices which could have a general,adverse impact on people who suffer from a particular disability - unless they are confident thatthese can be objectively justified.

Employers who currently issue a pre-employment health questionnaire or take account ofhealth records when selecting new staff should stop doing so. They should only ask suchquestions of candidates who have a disability which may well prevent them from carrying out arole and which they would still be unable to carry out even if reasonable adjustments weremade to it.

Employers should review any written equality policies to ensure that they include reference todiscrimination by association (that is, discrimination against someone who is related to orfriendly with people who have protected characteristics) and by perception (that is,

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discrimination against someone who does not have a protected characteristic but is thoughtto).

In the case of harassment policies reference should also be made to third-party harassmentand training given to managers so that they recognise this and know how to deal with it when ithappens.

Employers should take additional care not to discriminate or be seen to discriminate against atranssexual person.

Employers should amend contracts of employment (by writing to the employees concerned) toremove any pay secrecy clauses.

National Minimum Wage

From 1 October 2010 the rates of the National Minimum Wage were increased as follows:

Adult rate: 5.93Lower rate: 4.92

Youth rate: 3.64Apprentice rate: 2.50

The accommodation offset rose to 4.61 per day.The adult rate now starts on a worker's 21st birthday rather than their 22nd. Bonfire of the quangos

In October 2010 the Government announced the abolition of nearly 300 government-funded bodiesknown as 'quasi-autonomous non-government organisations' or quangos.

However, pretty well all of those that play a part in the employment law system survived, althoughchanges were made to some of their remits.

On the survival list, at least for the time being, are:

Acas

Equality and Human Rights Commission

Health and Safety Executive

Information Commissioner

Low Pay Commission

The Central Arbitration Committee (CAC) and the Certification Officer's Office will merge to form asingle quango.

Abolition of the 'two-tier' code

Under TUPE regulations special rules have applied to private sector organisations which take overservices previously provided by a public sector agency (that is public private outsourcing).

Under these rules even after the transfer, new employees had to be employed on 'no less favourableconditions' than their former public sector colleagues.

The statutory code was withdrawn in December 2010 and replaced with a voluntary code which merelyurges reasonableness and consultation with recognised trade unions.

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Significant developments in case law

This section is structured as a 'top ten countdown' of case law ranked broadly in order of their practicalsignificance for day to day human resource management. In 2010 however, there were only eightareas of genuine significance to report.

10. Sexual harassment

Munchkins Restaurant Ltd and another v Karmazyn and others (unreported, UKEAT/0359/09 28January 2010, EAT)

This case concerns the relatively common situation in which sexual banter is prevalent in a workplaceover a long period, subsequently leading to sexual harassment claims. Here, four waitresses claimedthat they had resigned due to unwanted remarks of a sexual nature having been directed to themregularly by the owner of the business.

The defence offered was that the conduct complained of cannot have been 'unwanted' because thewomen concerned had remained employed at the restaurant without complaining and had on someoccasions initiated sexual banter themselves.

The Employment Appeal Tribunal found for the women, ruling that sometimes people put up with suchan atmosphere and will not complain even though they object because they fear the potentialconsequences of complaining. This should not be taken by an employer as proof that the banter iswelcomed.

9. Age discrimination

Woodcock v Cumbria Primary Care Trust (unreported, UKEAT/0489/09 12 November 2010, EAT)Kraft Foods UK v Hastie [2010] ICR 1355, EAT)Ingeniorforeningen i Danmark acting on behalf of Andersen v Region Syddanmark (unreported,C-499/08 12 October 2010, ECJ)Two cases decided in the UK courts found for employers justifying actions which involved age-relateddiscrimination, while a European Court of Justice (ECJ) decision was much more helpful from anemployee perspective. The cases all concern the paying of so-called 'windfalls'.

In the Woodcock case the employer sped up an employees redundancy, dismissing him beforecompleting a full redundancy consultation. The reason was to sack him before he accrued entitlementto an enhanced pension. In other words they got rid of him early to save the costs associated withpaying him a pension that he would otherwise have been due in addition to his redundancy payment.The justification offered was thus largely to achieve financial savings. He would have received a'windfall' had he got both the redundancy payment and the enhanced pension.

The employer won the case both in the employment tribunal and again subsequently at the

Employment Appeal Tribunal (EAT). Windfall avoidance was found to be a potential justification forindirect age discrimination.

A similar situation arose in the Hastie case. The employer had a scheme in place that taperedredundancy payments downwards as employees approached retirement. Again the purpose was toavoid paying 'windfalls' in the form of large redundancy payments to staff who were due to retire soonon a pension. The claimants redundancy payment was capped at a sum equal to that he would haveearned had he continued to work until 65. The EAT agreed with the employer that this policyrepresented 'a proportionate means of achieving a legitimate aim.'

However, more recently the ECJ ruling in the Andersen case casts some doubt on how long these UKprecedents will remain good law. This case relates specifically to a Danish law which stipulates thatemployers can avoid paying redundancy payments when the people they dismiss are due to receive a

pension paid for by the employer that is, prevents entitlement to a double payment / 'windfall'.

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Here, the ECJ found against the Danish government. It said that employees should have the right towaive the pension and continue working if they wish to. To deny such a person their severancepayment amounts to age discrimination which is not justifiable.

The situations are not identical. But this case does at least cast some doubt on the two earlierjudgements in the EAT.

8. TUPE

Parkwood Leisure Ltd v Alemo-Herron and others [2010] IRLR 298, CAWorrall and others v Wilmott Dixon Partnership Ltd (unreported, UKEAT/0521/09DM 9 July 2010, EAT)These two cases concern situations in which collectively agreed terms and conditions transferred withemployees at the time of a TUPE transfer because the relevant collective agreement had beenincorporated into their individual contracts of employment. The situations were where private sectororganisations have taken over part of the activities of public authorities.

In both cases, the Court of Appeal and the Employment Appeal Tribunal respectively, decided that a

'static' approach needed to be taken, whereby only the elements of a collective agreement that were inforce at the time of a transfer need transfer with the employees. Subsequent changes made innegotiations with trade unions do not apply once people have transferred.

The Supreme Court will hear a further appeal on this matter by Alemo-Herron in 2011.

7. Redundancy consultation

Pinewood Repro Ltd v Page (unreported, UKEAT/0028/10 13 October 2010, EAT)

This is an important case with implications for employers who use matrix-type scoring systems toselect employees in a pool for redundancy. Here the employer used a variety of criteria, somesubjective in nature, others more objective (absence rates, productivity etc). One of the subjective

criteria was 'flexibility'.

The claimant scored very poorly on 'flexibility' and during his consultation meetings he asked why thiswas. No answer was given. He was not therefore in a position to challenge the score he had beengiven.

Subsequently, having been made redundant, he brought an unfair dismissal claim to an employmenttribunal and won. The employer had not consulted fully because it had not shared with the claimant thereasoning behind his low score on a subjective measure. The decision was upheld by the EmploymentAppeal Tribunal.

6. Disability discrimination

Chief Constable of South Yorkshire v Jelic [2010] IRLR 744, EAT

A police officer developed chronic anxiety syndrome. This meant that he was unable to work in roleswhich gave him much by way of face to face contact with the public in case a confrontational situationdeveloped. As a result he had been given a back office role. Over time however, his job evolved andmore public contact was required. He was unable to cope and was referred to a doctor. The medicalreport confirmed that his condition was likely to be permanent, so he was medically retired.

Subsequently the officer brought a disability discrimination claim, part of which rested on the contentionthat the police should have given him a different job, despite no vacancy being available at the time. Inother words, he argued that a job swap with another officer should have been brought about in order toenable him to continue working. Not to have considered this amounted to a breach of the duty to makereasonable adjustments.

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The Employment Appeal Tribunal agreed with the officer. They distinguished between a job swapsituation and one in which a new job is created purely for the purposes of keeping a disabled person inemployment. The latter is not reasonable, the former can be.

Also relevant here was the view that the police force, being highly disciplined, gave managers theoption of simply ordering someone to swap jobs with the officer. It was accepted that this might not

always be a practicable possibility.

5. Constructive dismissalBuckland v Bournemouth University Higher Education Corporation [2010] IRLR 445, EAT

In this case the Court of Appeal cleared up two areas of confusion that emanated from judgements oflower courts pointing in different directions. The case concerned a professor who resigned after a setof exams he had marked (many being failed) were re-marked in order to secure a higher pass ratewithout consulting him. He subsequently made a formal complaint to the University's 'executive group'who set up an enquiry which vindicated him and criticised his manager. In any event, concerned thathis integrity had been questioned, he decided to resign and claim constructive dismissal.

The University defended itself on two counts:

1. Even though there had been a breach of trust and confidence, its actions were nonethelessjustified as falling within the band of reasonable responses, and

2. In setting up an inquiry which vindicated the professor, the University had 'cured' its initialbreach.

On both counts the Court of Appeal found against the University and for the professor. Repudiatorybreaches cannot subsequently be 'cured' and the band of reasonable responses test is irrelevant to thequestion of whether or not a repudiatory breach has or has not occurred.

4. Industrial actionMetrobus v Unite the Union [2009] IRLR 851, CABritish Airways v Unite the Union (2) [2010] IRLR 809, CA

There have been a number of instances in the last year or two in which employers have successfullyapplied to the High Court for interlocutory injunctions which have the effect of postponing strike actionbecause of balloting irregularities. High profile cases have involved railway engineers, airline cabincrew and even university lecturers. In each case managers successfully petitioned the High Court toissue an injunction which, in effect, prevented strikes from going ahead.

These cases all followed on from the Metrobus case which was originally decided in July 2009. Herethe union appealed the decision to the Court of Appeal and lost, in the process helping to ensure thatthe High Court is in future likely to take a stricter line than was the norm before this case.

It is helpful to set out exactly what the law says in this area:

The approach used is for the employer to seek an interim interlocutory injunction in the HighCourt either to stop action from going ahead or to halt it once it has already started.

Technically this is an emergency remedy provided by the court pending a full trial to bescheduled at a later date. In practice, however, because it serves to stop the industrial actionconcerned in its tracks until such time as a full hearing can take place (for example, severalmonths later), to all intents and purposes it brings it to an end.

As a result, where there are balloting irregularities, where a proposed strike involves secondaryaction, where it does not fall within the legal definition of 'a trade dispute' or where there is somedoubt about these matters, an employer instructs its lawyers to apply for an interlocutoryinjunction.

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The tests used by the High Court in such cases have long been criticised for being too employer-friendly in that it is no longer necessary (as it used to be) for the employer to present the courtwith a convincing prima facie case to support the granting of an injunction.

The employer is not now required to present evidence which shows that it would be likely to wina full trial. Instead it merely has to convince the court that there is 'a serious question to be tried'.

Effectively this simply means showing that the employer's case is not trivial or vexatious in anyway.

Having established that this is so, the court goes on to consider the issue of the 'balance ofconvenience' in the case. (Barrow 2002, p356) sums this approach up as follows: 'It means that the court should balance the extent to which the plaintiff would not be compensated by damages if the injunction were not granted and if he won at trial, against the loss the defendant would suffer if the injunction were granted, if he won at trial' As the defendant in industrial action cases (the union) inevitably nearly always stands to lose less financially than the employer (the plaintiff) in an industrial dispute, it is not difficult for an employer to get its injunction and for the industrial action to be stopped - provided of course thereis some legal irregularity.The consequences for a union of failing to abide by an interlocutory injunction are very serious. Senior officials may be fined for contempt of court (as happened to Arthur Scargill the miner's leader in 1984) and the union itself can be fined too.More commonly a court will order that the union's assets be sequestrated. This means that unionbank accounts are frozen for the period for which the contempt lasts (that is, the duration of theindustrial dispute) and until such time as a judge considers the union to have 'purged' thecontempt (for example, by issuing an apology). Assets are later returned minus any fines thathave been levied and, of course, legal costs.

In the Metrobus case there were minor defects in the information provided on ballot papers and someirregularities in the provision to the employer of the names of those going on strike. They had also

delayed 20 hours before formally informing Metrobus of the ballot result. These were pretty minorinfringements, but the Court of Appeal found that they were sufficient to justify an interlocutoryinjunction.

Importantly, in presenting its case, the Union had sought to invoke the Human Rights Act using Article11 of the European Convention on Human Rights - the right to freedom of assembly and association asthe basis for its major legal argument. In other words, it was asking the Court to rule that UK law as itcurrently stands breaches the Convention.

In passing judgement the Court of Appeal stated that in its view the provisions in the law on ballotingand notice to employers 'are not so onerous or disproportionate as to be incompatible' with Article 11.

The impact of this ruling has been very substantial, allowing the High Court to grant injunctions wherethere have been minor infringements by unions which were unintended and also of no consequencewhatever to the final outcome of ballots.

However, one case this year bucked the trend and went in favour of the union. This happened in one ofa number of battles between British Airways and Unite who were representing cabin crew. In May2010, the Court of Appeal overturned an earlier High Court ruling to award an injunction against aunion whose only failure was to have communicated the result of a strike ballot by text and through e-mail rather than by letter, and to have failed to include information on the number of spoiled ballots.

The Court of Appeal decided that these breaches of the regulations were mere 'technicalities' and thatthey should not be allowed to prevent staff from taking strike action the ballot had shown over 80% tobe in favour of taking industrial action.

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3. Equal pay

Abdulla and others v Birmingham City Council (unreported, [2010] EWHC 3303 (QB), HC)Wilson v Health and Safety Executive [2010] IRLR 59, CA

The Abdulla case led to a most significant judgement concerning jurisdiction in equal pay matters.

Before, the rule had always been that equal pay matters were heard in the employment tribunal andthat a time limit of six months applies. In other words, claimants must lodge their forms with a tribunaloffice within six months of a date at which their pay was lower than they believe it should have been.

Thanks to this case this is no longer the situation, at least for employees. As equal pay is guaranteedthrough an implied 'equality clause' in every employment contract, breaching the statutory right alsoamounts to breaching a contractual right. This means, according to the High Court, that it can hearclaims for up to six years after a point at which an unlawful pay situation is alleged to have been inplace.

In practice the impact may not be as significant as it first appears. This is because the losing side hasto pay costs when breach of contract claims are brought before the County Court or the High Court.This is likely to deter anyone who is not very sure indeed of the strength of their case.

The Wilson case deals with a long-standing issue in equal pay law, namely whether or not seniority-based pay scales can constitute a 'genuine material factor' justifying a difference in pay between a manand a woman doing like work. In this case the pay scale continued to reward length of service with anincrement for ten years. The Court of Appeal ruled that this was too long, stating that only five yearswas justifiable. After that, performance would be the same and reward should be too.

Five years is also the maximum permitted in principle under age discrimination law. We now know thatthe same principle applies to equal pay law too.

2. Summary dismissal

Weston Recovery Services v Fisher (unreported, UKEAT/0062/10 7 October 2010, EAT)

This is a case which has not been widely reported but is deeply concerning from an employeeperspective. It is one in a long line of cases in recent years that have widened to a number of situationsin which employers can lawfully summarily dismiss without giving any notice. It brings some clarity tothis area of law, but in many people's eyes it will simply serve to give employers too much of the whiphand.

In a nutshell the Employment Appeal Tribunal (EAT) decided that even though an employee was foundby an employment tribunal not to have been guilty of an act of gross misconduct (some seats in a minibus were not properly secured after he had borrowed it to drive to France on holiday), it shouldnonetheless have found the summary dismissal to be fair.

Essentially the EAT appears to have decided that 'gross misconduct' and what it represents does not

need to play a part in justifying summary dismissals. All that matters is that the employer satisfies theBurchell test (that is, believes the employee is guilty and has grounds for that belief following a fullinvestigation), gets its dismissal right procedurally and more generally acts within 'the band ofreasonable responses.' This ruling therefore takes little account of the Acas Code of practice ondisciplinary and grievance procedures which is where guidance on what should and should not 'count'as gross misconduct is set out.

There was a twist in this case though. That occurred because the employer had a contractualdisciplinary policy in which 'gross misconduct' was defined. The EAT ruled that if the employmenttribunal decided that the conduct did not amount to 'gross misconduct' it must follow that there was abreach of contract in this case. The claimants claim of wrongful dismissal should therefore have beenwon.

The potential implications of this case for employers and employees are substantial. It would appear tomark the end of the road for most claims which are based on the argument that 'my conduct was notgross enough to justify summary dismissal' unless the misconduct was of such a trivial nature to place

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any subsequent dismissal outside of the band of reasonable responses. Only time will tell whetherother established precedents in this field concerning definitions of 'gross misconduct justifyingsummary dismissal' are, or are not, affected.

1. Mandatory retirement

Petersen v Berufungsausschuss fur Zahnartze fur den Bezirk Westfalen-Lippe [2011] IRLR 51,ECJRosenbladt v Ollerking Gebaudereinigungsges mbH [2010] IRLR 51, ECJMartin and others v Professional Game Match Officials Ltd (unreported, ET2802438/09, ET)Seldon v Clarkson Wright and Jakes [2010] IRLR 865, CA

Substantial numbers of cases considering questions relating to mandatory retirement are now makingtheir way up the hierarchy and into the higher courts. These are now particularly significant for the UKbecause of the impending removal of the statutory procedure employers can use when mandatorilyretiring employees.

This procedure does not operate in other EU countries. Nor does it apply to non-employees (that is,workers) in the UK. Here employers who wish to maintain mandatory retirement at a fixed age must be

able to objectively justify their actions. The test applied by the courts is to ask whether the mandatoryretirement policy amounts to 'a proportionate means of achieving a legitimate aim'.

Those who have campaigned for an end to mandatory retirement are not at all happy with the drift ofthe 2010 rulings. It appears that the courts are being easily persuaded by employers that they havegood enough reasons for maintaining their policies.

The Martin case was decided by an employment tribunal and is not binding on other courts. However itreceived some publicity in the summer because it concerns the lawfulness of mandatorily retiringfootball referees at the age of 48. The case was won by the referees. The tribunal accepted that'succession planning' could potentially form the basis of a justification, as could 'the need to ensure amixture of ages' and 'ensuring a career route'. In this case, however, they were not strong enoughbecause they were only of relevance to the particular organisation. The tribunal decided that wider

social policy concerns had also to play a part if an objective justification was to be made out.

This interpretation of the European Court's view was subsequently scuppered in the Seldon case themost important single case of 2010. Here the Court of Appeal (CA) ruled that while social policyobjectives should underpin a justification, all that mattered was that the justifications advanced by anemployer were consistent with them. In other words, the justification advanced by the employer mustbe broadly consistent with the government's social policy aims. In this case, which concerned themandatory retirement (at age 65) of partners in a law firm, the CA decided that the following aims were'legitimate, fair and proportionate' and hence lawful:

giving senior solicitors an opportunity to become partners

facilitation of workforce planning

maintaining a congenial culture whereby aging partners were not dismissed due to declining

performance.

There was, however, one other feature of this judgement that may well serve to distinguish it fromcases relating to employees when they start to come to tribunal in 2011. This was the fact that thepolicy of mandatorily retiring at age 65 had been agreed by 'partners of equal standing' - that is,negotiated between partners and not imposed by managers unilaterally on staff.

A similar point played a role in the decision of the European Court of Justice (ECJ) in the Rosenbladtcase. Here the ECJ found in favour of an employer's practice of mandatorily retiring its staff at age 65.The fact that the policy had been negotiated with a trade union and formed part of an establishedcollective agreement played a part in the decision to find in favour of the employer. The provision of anoccupational pension was another factor they took into account, as was the fact that retired pensionerswere not barred at all from working while still claiming their pensions. Here the justification advancedwas based on:

sharing employment between the generations

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avoiding dismissing older employees for reasons of capability

facilitating employment for young people.

The Petersen case concerned established practice in the German National Health Service, where amaximum age of 68 has long been in force for people working as doctors or dentists. The ECJ saidthat the practice was objectively justified on the following two grounds:

promoting access to employment for younger people

ensuring the financial viability of the system

A third justification, ensuring professional competence, was not justifiable.

So where does this leave employers as the abolition of mandatory retirement procedures for UKemployees approaches? The answer is uncertain. In time further case law will be developed that bringssome clarity to the question of when it is and when it is not lawful to maintain mandatory retirement.This may come sooner rather than later because the Seldon case has been appealed to the SupremeCourt.

Other interesting cases

The following are brief summaries of cases decided in 2010 that are notable, interesting orentertaining, confirming points or developing less significant new precedents. Some have significancefor specific types of employment situation, while others are simply curiosities:

In Dunn v AAH Ltd [2010] IRLR 709, CA the Court of Appeal (CA) upheld the decision of thelower courts that when an employee acts in such a way as to breach trust and confidence, theemployer can assume that the contract has been repudiated. This case concerned employees failure to inform managers at group HQ of a risk, hence denying them an opportunity to assessit for themselves. Despite this not really being an act of misconduct, it was deemed to be grossmisconduct.

In Wolf v Stadt Frankfurt am Main[2010] IRLR 244, ECJthe European Court of Justicedecided that restricting recruitment to the German fire service to people under age 30 wasjustifiable because of the need to get 20 years service from someone in a physicallydemanding role.

In Newcastle-upon-Tyne NHS Hospitals Trust v Armstrong and others [2010] ICR 674, EATtheEmployment Appeal Tribunal ruled against an employer who argued that the need to becompetitive in a competitive tendering exercise was not a genuine material factor capable ofjustifying not paying bonuses to a group of cleaners whose work had been judged to be ofequal value to that of porters.

In BP plc v (1) Elstone (2) Petroctechnics [2010] IRLR 558, EATa person who had blown thewhistle when working for a past employer alleged that he had been caused a detriment on that

account by his current employer. The Employment Appeal Tribunal held that he was protectedunder the Public Interest Disclosure Act 1998.

In Tullett Prebon plc v BGC Brokers [2010] IRLR 648, HCthe High Court found that BGC hadunlawfully induced a group of Tullett's staff to breach their contracts when it sought to 'poach'them en masse. BGC was also found guilty of conspiring to injure Tullett's business usingunlawful means.

In Autoclenz v Belcher and others [2010] IRLR 70, CA the Court of Appeal ruled that a group ofcar valeters were employees despite the presence of a substitution clause in their contracts(that is, permitting them to send someone else to work in their place) and a statement to theeffect that there would be no mutuality of obligation. In practice, despite what these contractualterms said, the men were in an employment relationship and were therefore entitled to all

employment rights.

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In Bateman and others v Asda Stores Ltd [2010] IRLR 370, EATthe Employment AppealTribunal made a somewhat contentious decision in favour of the employer. The employer hadmoved all staff onto a new pay structure without first securing their agreement. The defencewas based on a statement in the employer's staff handbook in which managers warned thatfrom time to time they would revise policies and introduce new ones as business needsrequired. Because the handbook was incorporated into employees' contracts, it was held that

this constituted a flexibility clause.

In Hinsley v Chief Constable of West Mercia(unreported, UKEAT/0200/10 9 November 2010,EAT) a probationary police officer resigned and then quickly regretted it. She asked if shecould be reinstated but this request was turned down. She failed to persuade an employmenttribunal that her mistake in resigning was due to a long-standing depressive illness. Refusingto consider her request for reinstatement represented a failure on the part of the employer totake account of reasonable adjustments. The Employment Appeal Tribunal agreed with thepolice officer.

In Keane v Investigo and others (unreported, UKEAT/0389/09 11 December 2010, EAT) aserial litigant was given short shrift by the Employment Appeal Tribunal (EAT). She had madesome twenty applications for accountancy jobs for which she was over-qualified. She would

apply to an agency and then when turned down, lodge an age discrimination claim beforeseeking to settle out of court. She settled five cases this way. The EAT decided that becauseshe had no real interest in the jobs she was applying for, no detriment had been suffered.Costs were also awarded against her.

In City of Edinburgh Council v Dickson (unreported UKEATS/0038/09 2 December 2009, EAT)the Employment Appeal Tribunal ordered the reinstatement of a man who had been dismissedfor downloading pornography from the internet while at work. There had been a failure to takeaccount of the fact that he suffered from diabetes and of his claim that he had viewed thepornography during a 'hypoglycaemic episode' and was therefore unaware of what he wasdoing. A doctor's note backed up these points, but had been disregarded by the employerduring its investigation.

In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, CA the Court of Appealfound in favour of a dismissed nurse due to procedural failings in the investigation into herconduct. A number of points were made in the judgement, the most significant of which was afailure to properly investigate a conflict of evidence in the statements that witnesses had made.The investigation had not been sufficiently even-handed.

Gisda Cyf v Barratt [2010] IRLR 1073, SCis the first case of significance in the employmentfield to be considered by the Supreme Court in its new guise. The case concerns what exactlyshould be taken to be the 'effective date of termination' in situations in which a dismissal iscommunicated by letter. The answer is the date on which the letter is opened, unless theemployee concerned unreasonably delays opening it.

In Hunter v Timber Components (unreported, UKEATS/0025/09 17 November 2009, EAT) anemployee was permitted by the Employment Appeal Tribunal to pursue a claim of constructivedismissal based on breach of trust and confidence after witnessing a manager's tendency tobully fellow members of staff. The employee had not been bullied himself.

The case of City of Edinburgh Council v Wilkinson [2010] IRLR 756, EATis a reminder that theterm 'establishment' in equal pay law is not the same thing as a 'workplace'. An establishmentcan consist of several workplaces across which claimants can choose comparators of theopposite gender.

In Tao Herbs and Acupuncture v Yin (unreported, UKEATPA/1477/09 14 July 2010, EAT) theEmployment Appeal Tribunal ruled that the fact that an employment tribunal award mightcause the employer in a case to go bust should not influence how much to award or whether to

make an award following a tribunal case.

Ravet v Halliburton Manufacturing Services [2010] IRLR 1053, CSand Wallis v Ministry ofDefence [2010] IRLR 1035, EATare both recent cases dealing with the evolving law on when

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expatriate workers can and can't make employment related claims in the UK tribunals. Thenumber of situations in which they can appears to be gradually expanding to include postingsoverseas to organisations in 'British enclaves' or organisations with some 'equally strongconnection to Britain.

In Simpson v Endsleigh Insurance and others (unreported, UKEAT/0544/09 27 August 2010,

EAT) a woman was made redundant from a London-based job while on maternity leave.Alternative jobs with the company were available, but she was not offered any because theywere based in Cheltenham and her managers assumed they would not be of any interest toher. The Employment Appeal Tribunal ruled that there had been no breach of the requirementto offer any suitable vacant posts to women who are made redundant while on maternity leave.

In Rutherford v Seymore Pierce Ltd [2010] IRLR 606, HCthe High Court said that the claimantwas entitled to his share of a profit-related bonus even though he had left the company'semployment at the time it became due. In the absence of any contractual term which statesthat employees forego bonuses on leaving, such payments must be made.

Brown v G4 Security (Cheltenham) (unreported, UKEAT/0526/09 27 April 2010, EAT) was arare example of an employer being fined in this case 20,000 for failing to comply with the

Information and Consultation with Employees Regulations 2004 (known as ICE or ICER).

Samuel Smith Old Brewery v Marshall (unreported, EAT/0488/09 31 March 2010, EAT)concerned overlapping discipline and grievance hearings the type of situation that ariseswhen an employee raises a grievance in response to an employer accusing him of misconductor poor performance. In this case two married employees tried to argue that their employershould have held back on disciplining them formally until the grievance they had raised washeard in full. The Employment Appeal Tribunal disagreed with them. Overlapping procedures isfine as far as the law is concerned.

Kulikasoskas v MacDuff Shellfish (unreported, EATS/0062/09 and EATS/0063/09 6 July 2010,EAT) concerns the dismissal of a Lithuanian man for helping his partner to lift heavy weights inthe factory where they both worked. She was pregnant and the pair had only been working at

the factory for a month when they were both dismissed. Her case for pregnancy discriminationwas relatively straight forward. His case was not because he was trying to establishassociative discrimination on grounds of pregnancy. He failed to persuade the tribunal andlater the Employment Appeal Tribunal that such a provision should be read into the law. Hewould have had an easier time had he been dismissed after October 2010 when the EqualityAct 2010 had become law.

Nixon v Ross Coates Solicitors (unreported, UKEAT/01081/10 5 August 2010, EAT) concerneda woman who became pregnant after having had two separate affairs with work colleagues.'Who's the daddy' gossip was widespread in the offices at which she and they worked andmanagers did nothing to stop it. The Employment Appeal Tribunal agreed that this amountedto sexual harassment on pregnancy grounds.

In Willoughby v CF Capital (unreported, UKEAT/0503/09 13 July 2010, EAT) an employer wasfound by the Employment Appeal Tribunal to have dismissed a member of staff in law, despitethe fact that the letter of dismissal had been sent to her by mistake. She was therefore free topursue an unfair dismissal claim.

Future developments

Unfair dismissal compensation

From 1 February 2011 the cap on compensatory awards in unfair dismissal cases rises to 68,400.The cap on weekly pay to be used in calculating basic awards and statutory redundancy paymentsrises to 400, making 12,000 the maximum level that a basic award can reach.

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Abolition of mandatory retirement

This looks like being one of three truly significant developments in employment law during 2011. Theplan is to repeal the part of age discrimination regulations which allows employers to retire employeeson their 65th birthdays, or at a later date provided they follow a set procedure. The Government isplanning to phase this out between 6 April and 1 October 2011.

The current scheme requires employers to write to employees at least six months before the proposedretirement date asking if they wish to exercise their right to request to work beyond that date.Employers who want to do this before 1 October 2011 need to write to the employees concernedbefore 6 April 2011.

From 1 October 2011 it will no longer be possible to retire people mandatorily unless this policy can beobjectively justified.

As we have seen from EU case law and from litigation in the UK involving non-employees, this meansthat it will continue to be possible to maintain mandatory retirement providing the policy can beobjectively justified as 'a proportionate means of achieving a legitimate aim'. However, until more casescome through the courts, exactly what the grounds for objective justification are going to be is not

clear.

One possibility would simply be to raise the mandatory retirement age to 68 or 70. This would still haveto be objectively justified, but doing so might well be easier than is the case at age 65. Moreover,research has long demonstrated that the numbers who want to continue working after age 70 is verysmall.

Things may change in this latter respect once the right to request flexible working is extended to allemployees in 2012 or 2013.

Additional paternity leave

This is the second major development planned for 2011. Something similar to what the Government is

now proposing has been in the pipeline for a long time. The original plan set out in the Work andFamilies Act 2006 was to bring in a new right from April 2010, but this was postponed due to therecession.

Fathers will be able to claim additional paternity leave (APL) in respect of any child due (or matched foradoption) on or after 3 April 2011. So a due date after midnight on Saturday 2 April 2011 is the crucialtime.

Eligible fathers will now be able to take up to a maximum of a further 26 weeks APL for the purpose ofcaring for the child. Essentially what is envisaged is a situation in which mothers will be able to returnto work after taking the first part of their maternity leave, with the father being entitled to APL once themother has returned to work. APL is therefore open only to fathers whose wife or partner works.

The earliest APL can start is when the child is 20 weeks old (or when the child has been with itsadoptive parents for 20 weeks) and ends one year after the child is born (or placed for adoption). APLcan only be taken once the mother has returned to work, so that a mother and father will not be able totake maternity leave and APL at the same time.

Statutory maternity pay (SMP) is currently available to mothers during the first 39 weeks of their leave(assuming certain qualifying conditions are satisfied). APL will be paid at a flat rate that is equivalent toSMP, for the portion of the APL which is taken during what would have been the remainder of themothers paid maternity leave period.

Some employers will have alternative arrangements in place for paying women and men more duringtheir AML and APL. The interesting legal question is the extent to which employers will have to ensurethat men taking APL are treated in the same way as women taking AML. For example if more generous

contractual maternity pay packages are offered to female employees what contractual paternity paypackages should now be offered to men?

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The right to return to work after APL will be the same for men, as will the right to retain contractualbenefits such as cars, lap-tops and even live-in accommodation.

Ministers have made it clear that they are viewing these measures as temporary. Over time they areplanning to bring forward legislation that will allow greater flexibility.

The Conservative manifesto suggested swapping more leave and bringing the date forward to 14weeks after a baby's birth. The Liberal Democrats went further, suggesting that it should be possiblefor a mother to pass on the remainder of her maternity leave to the father after the two weeks'compulsory maternity leave was over.

The plan to increase paid maternity leave from nine months (39 weeks) to 12 months from April 2010was put on hold indefinitely by the Labour Government due to the recession. This remains thesituation.

The European Commission has published a draft directive which, if adopted by the Council ofMinisters, will increase compulsory maternity leave (CML) from two to eight weeks at some stage in thefuture.

Bribery Act 2010

The Bribery Act 2010 is expected to come into force on 6 April 2011. It is a piece of legislationconceived and taken through Parliament by the Labour Government.

It consolidates several existing statutes into one place, creating two new criminal offences in theprocess:

1. offering, promising or giving a bribe to another person, and2. requesting, agreeing to receive or accepting a bribe.

From an employer's perspective the measure which is significant is 'failing to prevent bribery' a newcorporate offence.

This makes an organisation legally liable if any person 'associated with it' bribes or intends to bribeanother in order to:

obtain business

retain business

gain advantage in the conduct of business.

However, there is a defence which can be deployed, namely, demonstrating that there are in place'adequate procedures' to prevent bribery from taking place.

The situation that will be created is therefore not dissimilar from the law on sexual harassment,although this is criminal law. An organisation can accept that an act of unlawful bribery has occurred,

but argue that on this occasion it is not responsible because it has taken all reasonable steps to ensurethat bribery does not occur.

The term 'adequate procedures' is thus central. Draft government guidance sets out six key points thatemployers will want to be able to demonstrate:

1. risk assessment procedures2. top-level commitment to preventing bribery3. due diligence on business opportunities and associated third parties4. internal policies and procedures to prevent bribery5. an effective implementation strategy to prevent bribery6. internal monitoring and review of anti-bribery strategy.

In addition to fines and the possibility of prison sentences for senior directors, there is also thepossibility that a firm could be banned or suspended from bidding for public sector contracts or thosetendered by utility companies.

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Further, more detailed guidance for employers will be issued before the Bribery Act 2010 comes intoforce.

SMP, SPP, SAP and SSP rates

From 11 April 2011 the weekly rate for statutory maternity pay (SMP), statutory paternity pay and

statutory adoption pay rises to 128.73. The lower earnings threshold over which SMP is payable willrise to 102 a week. The weekly rate of statutory sick pay (SSP) rises to 81.60.

Positive action in recruitment and promotion

While not yet finalised it looks as if the Government will be introducing the new rules on positive actionin April 2011. These will apply in recruitment and promotion situations in which a number of candidatesapply.

It is a measure contained in the Equality Act 2010 that was opposed by the Conservatives andsupported by the Lib Democrats before the election.

The idea is that the UK should take advantage of a European Court ruling which permits employers to

choose a member of an under-represented group (for example, women, ethnic minorities etc) whenfollowing a recruitment exercise, there are two or more suitable candidates of equal merit.

Right to request flexible working

The extension of the right to request flexible working to parents of 17 year olds will come into force on6 April 2011. At present the right expires when someone's youngest child reaches age 17, but from 6April 2011 it will be age 18.

The long-term aim of the Government, however, is to extend this right to all employees whatever theirage and whatever their parental status.

The idea of allowing temporary flexible working requests as well as one-off permanent changes is also

being considered.

Royal Wedding

The Government has announced that an additional bank holiday will take place across the UK onFriday 29 April 2011, to celebrate the royal wedding. As Easter is so late this year, this will mean thatthe country will enjoy two four day weekends consecutively (22 to-25 April) and (29 April to 2 May). Theweek in between will be only three days long.

An important legal question is whether or not employers are obliged in law to give their staff thisadditional wedding bank holiday off work? The answer is 'no' unless there is a contractual obligation todo so. Rights depend on the precise wording of individual contracts - do they refer generally to bankholidays or are the bank holidays normally taken each year named? If it is the latter there is no legalright to a day off on 29 April 2010 and no right to be paid for that day.

New rights for agency workers

The Agency Workers Regulations 2010 are due to come into force in the UK on 1 October 2011.These implement the Temporary Agency Work Directive, agreed and then approved by the EuropeanParliament in October 2008.

The new Regulations mean that agency workers who work continuously with a single end-user fortwelve weeks or more, will gain the right to have the same pay, overtime, working time and holidayentitlements as equivalent permanent employees, as well as equal 'basic working and employmentconditions'. Pensions and sick pay will not be covered, nor will redundancy pay.

In addition, from day one, agency workers will be entitled to equal treatment in the areas of:

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canteens

child care facilities

transport laid on by employers.The definition of the term 'agency worker' is going to be problematic as it has been framed to excludepeople who are self-employed and effectively supply themselves on an agency basis as well as peoplesupplied via 'managed contracts'.

Agency workers who are employed for a period of twelve months or more at the same organisation willnot be able to claim unfair dismissal or constructive dismissal. No change is planned to their existingemployment status.

Parental leave

An EU directive has been agreed increasing parental leave entitlements across Europe from three tofour months per child.

The deadline date for implementation is 8 March 2012. However, if past experience is anything to goby the UK will implement in April 2012.

Ministers are debating whether to introduce a right to 'shared parental leave' at the same time.

The details of this plan are rather hazy at present, but would appear to permit parents to swap part oftheir four month entitlement among themselves so that, for example, a father could pass three of hisfour months on to the mother who could take a total of seven months unpaid parental leave.

It is quite possible that these measures will be introduced alongside the extension of the right torequest flexible working to all employees.

New pension rules

The increase in the dependency ratio as a result of population ageing has major implications forpensions. Unless action is taken soon, the country will be unable to support retired people financially in

the future.

The choices are all difficult:

accept a lower level of average retirement income for older people

work longer

save considerably more

increase taxation very considerably.

Accepting that the first choice is unacceptable, and that the fourth choice is economically impractical, itis the second and third choices which the Government has decided to focus on.

In May 2006 the Labour Government published a white paper entitled Security in retirement: towards anew pensions systemwhich set out proposals for long-term, fundamental reform of state pensions.

The white paper drew on the recommendations of the Turner Commission which reported in 2005 afterhaving undertaken a lengthy, in depth investigation of the whole issue.

The Pensions Act 2008 contained most of the resulting measures. The Coalition Government is notplanning to make any radical changes.

The major new requirements will be as follows:

From October 2012 everyone who is employed will have access either to an occupationalpension scheme or to the government's 'personal pension account scheme' which will invest

monies through a body to be known as the National Employment Savings Trust (NEST).

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People will be able to opt out if they wish, but otherwise they will be automatically enrolled intoone scheme or the other when commencing a new job. Employers will not be able to opt out,but they will have 12 weeks in which to enrol new staff.

Minimum contributions will be as follows:o employees will contribute 4% of earningso employers will contribute 3%o tax relief will mean that a further 1% is effectively contributed.

It has now been established that the employer involvement will be phased in over three years.For employers running defined benefit schemes the full three years will be allowed.

Further plans involve simplifying the rules for accessing the state pension and state second pensionand making the system more accessible to people who take periods out of the workforce for thepurposes of raising families and caring for elderly dependants.

Additional financial incentives will also be introduced to encourage more people to work beyond thestate pension age.

The state pension age will also rise. The Labour Government plan foresaw a rise from age 65 to 66 in2024, to age 67 in 2034 and to age 68 from 2044.

However, before the General Election the Conservative Party announced its intention to bring the age65-66 rise for men forward to 2016. No final decision on this has yet been made.

Other future possibilities

A variety of proposals for the reform of employment law and health and safety regulations have beenfloated by ministers and others close to them in recent months. Some are said to be 'under activeconsideration'.

There are also proposals in the EU pipeline that may or may not ultimately come into our law. These

include the following:

going back to a two-year qualifying period for unfair dismissal

increasing the number of situations in which costs are awarded by employment tribunals

radically reducing health and safety requirements in low risk workplaces (for example anexemption from the need to undertake formal risk assessments)

paying full pay for the first 20 weeks of maternity leave.

References

BARROW, C. (2002) Industrial relations law. 2nd

ed. London: Cavendish.

Useful contacts

CIPD members can find more information on employment law developments, in the Employment Lawat Work area of our website.

The text of recent legislation is available online.Public General Acts since 1988 atwww.opsi.gov.uk/acts.htmStatutory Instruments since 1987 atwww.opsi.gov.uk/stat.htmBills currently going through Parliament atwww.parliament.uk/bills/bills.cfm

Government department websites usually contain useful summaries of recent and forthcominglegislation. The main departments for employment law are:Department of Business Innovation and Skills atwww.bis.gov.uk/

Department for Work and Pensions atwww.dwp.gov.uk/

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http://www.opsi.gov.uk/acts.htmhttp://www.opsi.gov.uk/acts.htmhttp://www.opsi.gov.uk/stat.htmhttp://www.opsi.gov.uk/stat.htmhttp://www.parliament.uk/bills/bills.cfmhttp://www.parliament.uk/bills/bills.cfmhttp://www.bis.gov.uk/http://www.bis.gov.uk/http://www.bis.gov.uk/http://www.dwp.gov.uk/http://www.dwp.gov.uk/http://www.dwp.gov.uk/http://www.dwp.gov.uk/http://www.bis.gov.uk/http://www.parliament.uk/bills/bills.cfmhttp://www.opsi.gov.uk/stat.htmhttp://www.opsi.gov.uk/acts.htm


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The Employment Appeal Tribunal (EAT) www.employmentappeals.gov.uk deals with appeals fromthe decisions of the employment tribunals. The website has the full text of judgments from July 1999 and alist of cases heard during the most recent month, as well as procedural information.

British and Irish Legal Information Institute (BAILII) atwww.bailii.org provides access to acomprehensive collection of British and Irish legal materials available free of charge.

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