rollits employment law breakfast briefing march 2013
TRANSCRIPT
Employment Law Breakfast
Briefing
March 2013
Review of 2012
Edward Jenneson
Qualifying period for unfair dismissal
Judges sitting alone
Witness Statements
Increase costs award
Increase deposit award
Increase cost of Tribunals - now at
record £84 million per year
Looking at mediation before litigation
Increase in statutory payments
National minimum wage - 1 October 2012£6.08 to £6.19 - 21 and over
£2.60 to £2.65 - Apprentices
Youth rate unchanged at £4.98
Last possible date to legally retire an employee!
Employment Law Reform
Donna Ingleby
Introduction
• The Enterprise Regulatory Reform Bill
• The Employment Tribunal Rules Review
• The Children and Families Bill
Dates to Look out for in Spring
2013
8 March
increase in unpaid parental leave (13 weeks to 18 weeks).
1 April
the Legal Aid Sentencing and Punishment of Offenders Act 2012.
Remove new employment cases from the scope of legal aid, except in relation to discrimination complaints.
6 April
Changes to collective consultation.
One hundred plus redundancies at one establishment - consultation reduced to 45 days.
9 April
Close of ACAS consultation on the Code of Practice for settlement agreements.
11 April
Close of Government consultation on repealing elements of TUPE.
Regulation of employment businesses and employment agencies.
Summer 2013
• Portable online DBS (previously CRB)
• Review of Agency Workers Regulations
• Whistle blowing reform
• New Tribunal fees and rules
• Making Settlement Agreements easier
• Twelve month cap on unfair dismissal compensation
Autumn 2013
• Employee shareholder employment status
• TUPE Regulation reforms
Spring 2014
• The right to request flexible working for all employees
• ACAS Early Conciliation introduced
• The introduction of Employment Tribunal penalties
Looking forward 2015
• Shared parental leave
• Changes to the Equality Act 2010
A Focus on Apprenticeships
Lottie Pigg
The Old Regime
Common Law Apprenticeship
1. Primary purpose training
2. Secondary purpose employment
3. Cannot dismiss on same grounds as an ordinary
employee
• Learoyd v Brook (1891)
– Apprentice’s actions must be so extreme that the apprentice is
effectively unteachable
• Dunk v George Waller & Son Ltd (1970)
– Lack of initiative and an unsatisfactory college report did not
justify dismissal
• Wallace v C A Roofing Services Ltd (1996)
– Redundancy only permitted if potential closure or fundamental
change to the character of the business
Common Law Apprenticeship
• Risks:
– Wrongful Dismissal
– Compensation based on lost earnings and loss of expected
earnings on achieving the qualification
The New Regime
Apprenticeships, Skills, Children and Learning Act
2009 (“ASCLA 2009”)
• Primary purpose employment
• Apprenticeship Agreement two main requirements:
– The Apprentice must undertake work for the employer
– The Apprenticeship must be in the “prescribed form”
Prescribed Form
• Must be a written contract of employment (section 1
Employment Rights Act 1996)
• Must include a statement of skill trade and occupation
• Must be and state entered into in connection with a
qualifying apprenticeship framework
Apprentice Rights
PayApprenticeship Rate: £2.65/hour Under 19 or over but 19 in first year of
apprenticeship
Development Rate: £4.98/hour Aged 18 -20
Standard Adult Rate: £6.19/hour Aged 21 or over
The Working Time Regulations
Working HoursUnder age 18 Age 18 or over
Max 8 hours work/dayMax 40 hours work/weekNo night work between 10 pm - 6 am or 11 pm - 7 am12 hours rest in each 24 hours30 minute rest break when working over 4.5 hours/day
Max 48 hours work/weekCan “opt out”Max 8 hours night work in each 24 hours11 hours rest in each 24 hours20 minute rest break when working over 6 hours/day
Holiday Entitlement Health & Safety
28 days/year or 5.6 weeksCan include bank holidays
Risk Assessment
Sickness Absence
• Entitled to SSP provided earn at least £107/week
(£109/week from April 2013)
• SSP currently £85.85/week
– Company Sick Pay
– Absence Procedure
Maternity & Paternity Leave
Exactly the same as your employees so provided have sufficient continuous employment and earn at least as much as the Lower Earnings Limit for NIC £107/week
(£109/week from April 2013)
Maternity Leave (52 weeks) Paternity Leave (2 weeks)
No qualifying level of employment Employed for 26 weeks before the 15th week before expected week of childbirth
Statutory Maternity Pay Statutory Paternity Pay
Employed for 26 weeks before the 15th week before expected week of childbirth6 weeks 90% of earnings 33 weeks at SMP£135.45
As above2 weeks at £135 or 90% of weekly earnings whichever is the lower
Summary
• Existing apprentices
• New apprentices
• Contractual documentation is key!
Case Update
Ed Jenneson
Employee or self-employed?
Quashie v Stringfellows.
• Dismissed and claimed unfair dismissal
• Mutuality of obligations
• Subject to disciplinary process
• Court of Appeal
• Had to consider how she was paid
Is it ok to shout?
Townsend v Gillette UK
Farnaud v Dr Hadwen Trust Ltd
• Importance of procedure
Be careful what you eat!
Kaczor v Booker Limited
• “a harsh dismissal will not always be an unfair dismissal”
• Theft justifies dismissal. Even if it is only 39p!
Note Employment Tribunal decision and not binding
Behave at the Christmas party!
Gimson v Display by Design Limited
• During the course of employment?
• Deemed sufficiently connected
Religious Discrimination
• The right to wear a cross
• A number of cases went to Europe
Ms Eweida v BA
• Deemed to be a manifestation of her religious belief
• BA wanted “clear corporate image”
• No evidence that wearing a cross would damage that
image
However, NOTE: This is the one which hit the press
Religious Discrimination
Chaplin v NHS Trust
• No discrimination on health and safety grounds
• Worn it since 1978
• Department of Health Guidelines to “protect the health
and safety of patients and staff”
Religious Discrimination
Ladele and McFarlane
• Refused to deal with gay individuals on the grounds of
their religion
• Marriage counsellor and civil servant who performed civil
ceremonies
• Employer was right to conclude that all employees
adhered to a non-discriminatory policy
Age Discrimination
Nolan v CD Bramall Limited/ta Evans Halshaw
• Be careful what you say as “Yoda” was discriminated
against.
• Brought claim for unfair dismissal and age discrimination
on the basis that he was selected for redundancy based
on the fact that he was nearing retirement.
• 104 year old team leader
• Changed number plates on his car
Any Questions?
Donna Ingleby
Partner, Head of Employment
01482 337314
Ed Jenneson
Associate
01482 337341
Lottie Pigg
Senior Solicitor
01482 337242