EMPLOYMENT LAW UPDATE CIPD – 26 MARCH 2009 BECKY HODGKINS AND MICHAEL BRIGGS

INTRODUCTION Legislation Update - recent and future developments Case Law Update

LEGISLATION UPDATE

FROM OCTOBER 2008 Increases in National Minimum Wage –Standard (adult) rate - £5.73 per hour –Development rate - £4.77 per hour –Young Workers rate - £3.53 per hour

DECEMBER 2008 Temporary Agency Workers Directive –Published 5 December Member States have to implement it by 2011 –Expected to be introduced to Parliament this year with a view to implementation in 2010 –Requires agency workers to be given equal basic working and employment conditions to comparable permanent employees –Workers in the UK will benefit from this right after 12 weeks of employment

FROM FEBRUARY 2009 Employment Rights (Increase of Limits) Order 2008 –A week’s pay increases from £330 to £350 –Maximum redundancy payment is £10,500 –Maximum basic award for unfair dismissal is £10,500 –Maximum compensatory award for unfair dismissal increases from £63,000 to £66,200

FUTURE DEVELOPMENTS Working Time (Amendment) Regulations 2007 –Increase in statutory annual leave entitlement effective from 1 April 2009 –Increase from 4.8 weeks to 5.6 weeks –An additional four days for full-time employees

FUTURE DEVELOPMENTS Employment Act 2008 –Expected to come into force 6 April 2009 –Repeals Statutory Dispute Resolution Procedures. Instead Tribunals will have regard to the new ACAS Code of Practice on discipline and grievance

EMPLOYMENT ACT 2008 ACAS Code of Practice – repeal of the Statutory Dispute Resolution Procedures –Applies to warnings and suspensions without pay –Will not apply to dismissals due to redundancy or non-renewal of fixed-term contracts –A disciplinary process can be temporarily suspended in order to deal with a grievance, or can they can both be dealt with together, if appropriate –Tribunals can adjust compensation by up to 25% depending on the employer or employee’s “unreasonable failure” to follow the ACAS Code

EMPLOYMENT ACT 2008 ACAS Code of Practice on dismissal and disciplinary procedures (1) –In misconduct cases different people should carry out the investigation and the disciplinary hearing –Notification of disciplinary hearing should contain sufficient information about the alleged misconduct or poor performance and the possible consequences –Disciplinary hearing should be held without unreasonable delay –Employees should be allowed to be accompanied

EMPLOYMENT ACT 2008 ACAS Code of Practice on dismissal and disciplinary procedures (2) –The employee should be given a reasonable opportunity to ask questions, present evidence and to call relevant witnesses –Where an employee is “persistently unable or unwilling” to attend a hearing without good cause the employer should make a decision on the available evidence –A decision to dismiss must only be taken by a manager who has specific authority to do so –Employees wishing to appeal the decision must do so without unreasonable delay

EMPLOYMENT ACT 2008 ACAS Code of Practice on grievances –Applies to grievances raised by employees against fellow employees –Does not apply to collective grievances –Employees no longer required to raise a grievance before submitting an employment claim – likely to result in more “out of the blue” claims –Grievance must set out the “nature of the grievance” –Right to be accompanied –Employees to appeal without unreasonable delay and put appeal in writing

EMPLOYMENT ACT 2008 Transitional Provisions: does the old or new regime apply? –Where the first step of a disciplinary and dismissal action has taken place by 6 April 2009 = existing statutory procedure will apply –Where the date of the incident the employee is raising a grievance about takes place before 6 April 2009 or begins before 5 April 2009 and continues beyond that date and the employee presents a complaint or submits a valid grievance within the 3month/6month time limit = existing statutory grievance procedure will apply

FUTURE DEVELOPMENTS Right to request flexible working –The right to request flexible working is extended to parents of children up to the age of 16 –Likely to come into force in April 2009

FUTURE DEVELOPMENTS Additional paternity leave and pay –Consultation ended in 2007 and the Government now intend to introduce its proposals to Parliament –Fathers can take up to 26 weeks “additional paternity leave”, some of which could be paid if the mother of the child is entitled to statutory maternity pay or maternity allowance –Leave needs to be taken before child’s first birthday –Entitled to return to the same job and on the same terms and conditions as before taking leave –Details to be confirmed when the final Regulations are published

CASE LAW UPDATE QUIZ

Is the use of length of service as a selection criterion in a redundancy process discriminatory on the basis of age? YES NO QUESTION 1

Is the use of length of service as a selection criterion in a redundancy process discriminatory on the basis of age? YES NO QUESTION 1

Is it reasonable for one individual to carry out a redundancy selection process without reference to company documents and where there is no supporting evidence? YES NO QUESTION 2

Is it reasonable for one individual to carry out a redundancy selection process without reference to company documents and where there is no supporting evidence? YES NO QUESTION 2

Can the Disability Discrimination Act protect those associated with disabled persons from harassment? YES NO QUESTION 3

Can the Disability Discrimination Act protect those associated with disabled persons from harassment? YES NO QUESTION 3

Is it indirect age discrimination to require an employee to hold a law degree in order to be paid a higher pay scale? YES NO QUESTION 4

Is it indirect age discrimination to require an employee to hold a law degree in order to be paid a higher pay scale? YES NO QUESTION 4

Can an employee be exercising their rights to time off for dependants if they have advance warning of the unavailability of their child minder? YES NO QUESTION 5

Can an employee be exercising their rights to time off for dependants if they have advance warning of the unavailability of their child minder? YES NO QUESTION 5

Can an employer be liable for stress caused to an employee where they have a confidential counselling service and suggests to the employee that they use it? YES NO QUESTION 6

Can an employer be liable for stress caused to an employee where they have a confidential counselling service and suggests to the employee that they use it? YES NO QUESTION 6

Can it be unlawful to harass an employee by virtue of another person’s religious beliefs? YES NO QUESTION 7

Can it be unlawful to harass an employee by virtue of another person’s religious beliefs? YES NO QUESTION 7

Is British Airway’s policy of forbidding a silver cross from being visibly warn outside the uniform indirect discrimination against Christians? YES NO QUESTION 8

Is British Airway’s policy of forbidding a silver cross from being visibly warn outside the uniform indirect discrimination against Christians? YES NO QUESTION 8

Is it unlawful discrimination to subject a colleague who you know is straight to homophobic banter? YES NO QUESTION 9

Is it unlawful discrimination to subject a colleague who you know is straight to homophobic banter? YES NO QUESTION 9

Can workers who are absent due to sickness continue to accrue paid annual leave? YES NO QUESTION 10

Can workers who are absent due to sickness continue to accrue paid annual leave? YES NO QUESTION 10

EMPLOYMENT LAW UPDATE CIPD – 26 MARCH 2009 BECKY HODGKINS AND MICHAEL BRIGGS