Employment Law Conference

Paris Smith LLP

26 March 2014

Introduction

Clive Dobbin

LLP Partner

Paris Smith LLP

Paris Smith HR Network

Essential Line Manager Training 2014

• 30 April – Performance management

• 18 June – Disciplinary and grievances

• 24 September – Absence management

Health and safety clinic

• Only takes an hour of your time!

• No cost to you!

• No strings attached

Contact:

Sarah Wheadon

023 8048 2109

sarah.wheadon@parissmith.co.uk

Paris Smith Human Resources

Paris Smith Human Resources is the innovative web service which helps you manage all your HR documentation and processes online, and which includes:

• Managers’ Toolkit - Key resources, guides and template letters for routine employment matters

• Contracts & Policies - Storage of contracts and policies, and creation of individual contracts

• HR Manager - Personnel files and absence management

• Regular updates and newsletters

Managers’ Toolkit provides useful basic guides on a range of common employment law issues and includes template letters and documents.

Topics covered include:•Disciplinary proceedings•Grievances•Absence and performance management•Equality issues and family friendly rights

Contracts & Policies enables you to store and access your contracts and policies online and create and issue contracts and policies to staff straight from your account.

The team at Paris Smith can also, for a fixed fee, audit your current contracts of employment and your policies and procedures, to ensure that your documents are kept up to date and in line with current employment legislation.

The HR Manager offers a range of features to streamline your HR Management including:

• Employee files and records plus easy storage for legally required documentation such as Visas, CRB checks and GP reports

• Self service management to record holiday, sickness and other absences

• Managing and creating staff rotas

• Integrates with Sage Instant and Sage 50 Payroll

• Complies with Data Protection legislation

Topics to be covered

• Changes in legislation – Clive Dobbin

• Case law update – David Roath

Changes in legislation

• Changes to TUPE

• Abolition of discrimination questionnaires

• Pre-claim conciliation• Financial penalties in Employment Tribunals

• Financial limits

• To come

Changes to TUPE

• Employee liability information

• Service provision changes

• Changing terms and conditions, including changes to place of work

• Collective agreements

• Redundancy consultation

• TUPE consultation for micro businesses• Changes came into force on 31 January

2014

TUPE – employee liability information

• Previously transferor had to provide employee liability information 14 days prior to transfer

• Many argued too late• Now, period extended to 28 days prior to transfer• Applies to transfers which take place on or after 1

May 2014

Service provision changes

• TUPE can apply to change of service provider

• Activities carried out after the transfer must be fundamentally the same as those carried our prior to the transfer

• Reflects current case law

• Changes should be substantial, minor changes are unlikely to be sufficient

Changes to terms and conditions

• Now easier to change terms and conditions• Can change terms and conditions, even if reason for

change is the transfer, if:• Reason for the change is an ETO reason, provided

employee agrees to the change• Terms of the employment contract permit the

employer to make such a change• The term is implied from a collective agreement and:

• 1 year has passed since the transfer; and• New contract is, overall, no less favourable to

the employee

TUPE – changes in workplace

• Previously, could only change workplace if ETO reason

• ETO reason – economical, technical or organisational reason

• Change in the number or functions of employees

• Arguably, change of workplace not ETO reason

• TUPE amended – change in workplace can be an ETO reason

TUPE – changes in workplace

• Can now change place of work if:• Employee agrees

• If have contractual right to do so• If not, can impose change by dismissing and offering

re-employment

Collective agreement

Issue

•Pay determined by national bargaining body

•Service outsourced•New employer (service provider) not party to national bargaining body

•National bargaining body agrees pay rise after transfer

Question

•Is the new employer bound by pay rise?

Collective agreements

Alemo-Herron v Parkwood Leisure

•Dynamic approach – continue to be bound by pay rises determined by national bargaining body; or•Static approach – not bound by pay rises agreed after transfer

•Held – static approach applies

Collective agreements

• TUPE now amended to reflect static approach

• Provided transferee is not a participant in the collective bargaining

Redundancy consultation

• Previously, unclear if could start consulting prior to transfer

• If couldn’t, couldn’t make changes, e.g. to location, until some time after transfer

Redundancy consultation

• Trade Union and Labour Relations (Consolidation) Act 1992 now amended

• Allows transferee to begin collective consultation on potential redundancies before transfer

• Transferee must elect, by written notice to the transferor, to start consultations prior to transfer

• Still requires co-operation and assistance of transferor

TUPE consultation

• Micro businesses – employers with nine or fewer employees

• Will be exempt from requirement to elect, and consult with, employee representatives

• Can consult with employees direct

• Applies to number of employees that employer has – and not number of employees affected by transfer

• Applies to transfers which take place on

or after 31 July 2014

Abolition of discrimination questionnaires

• Previously, if believe discriminated against, could serve discrimination questionnaire

• If not responded to, or if answers ambiguous or evasive, tribunal could draw inferences

• Government views questionnaire procedure as overly burdensome on employers

• To be repealed with effect from 6 April 2014

Abolition of discrimination questionnaire

• Will be replaced by informal procedure

• Under informal procedure, individual can still ask questions

• ACAS guide• No longer formal process for drawing inferences

• However refusal to answer questions can still be taken into account as part of wider factual matrix

Abolition of discrimination questionnaire

• Suggested process for asking questions• Give own details, and person being complained about

• Identify ‘protected characteristic’ being relied upon• Described treatment being complained about

Abolition of discrimination questionnaire

• Suggested procedure (cont)• Identify type of discrimination

• Why believe treatment discriminatory• Additional questions, e.g. requests for statistical

information

• Specify deadline for response

Abolition of discrimination questionnaire

• Suggested procedure for answering questions• Agree/disagree with the statement

• Do you consider the treatment was justified?• Respond to other questions

Abolition of discrimination questionnaire

• Process therefore very similar to discrimination questionnaire process

• May not, therefore, have a significant impact

Tribunal reform

• Tribunal reform – government has already:• Unfair dismissal claims – now heard by judge sitting

alone

• Introduced tribunal fees

• Aims• Reduce burden on businesses

• Save money

Tribunal reform

• Further changes• Pre claim conciliation

• Financial penalties in Employment Tribunals

Early conciliation

• Voluntary from 6 April 2014

• Compulsory from 6 May 2014

• Prior to presenting claim to tribunal, must submit details to ACAS for early conciliation

• ACAS then has 1 month in which to attempt settlement

• Pause in time limits

Early conciliation

• If either party unwilling to conciliate period can come to an end early

• If conciliation still active, period can be extended by up to 14 days

• At end of process, ACAS will issue Claimant with certificate, which will enable him/her to lodge claim

Penalties in Employment Tribunals

• Applies to cases presented on or after 6 April 2014

• If employer loses in tribunal, tribunal can require employer to pay an additional penalty

• Payable to government, not claimant

Penalties in Employment Tribunals

• Award – 50% of award made to claimant (minimum £100, maximum £5,000)

• Reduced by 50% if paid within 21 days• Tribunal will take into account ability to pay

Penalties in Employment Tribunals

• Penalty will be awarded where claim has one or more ‘aggravating features’

• Government has suggested that an employer who makes a genuine mistake will not be penalised

Penalties in Employment Tribunals

• ‘Aggravating features’ not defined

• Consultation paper – where ‘the breach involves unreasonable behaviour, for example where there has been negligence or malice involved’

• Explanatory notes state that relevant factors could include:• The duration of the breach• The employee’s and employer’s behaviour• The circumstances of the case; and• The size of the employer

Financial limits

Previously New limit

Unfair dismissal £74,200 £76,574

Weeks pay £450 £464

•Changes effective 6 April (previously 1 February)

Statutory amounts

Previously New

Maternity £136.78 £138.18

Statutory sick pay £86.70 £87.55

•Changes effective 6 April

Changes in legislation – to come

• Flexible working – right to be extended to all employees (with 26 weeks’ service)

• Currently just parents and carers• Comes into force – 30 June 2014• Current prescribed procedure to be repealed

• Replaced with obligation to consider requests in a reasonable manner

Flexible working

• ACAS Code – will have statutory force

• ACAS Guide

Flexible working

• ACAS Code• Can only make one request in any 12 month period

• Need to weigh up benefits against any adverse business impact

• Process must be completed within 3 months (can be extended by agreement)

• Employer can treat application as withdrawn if employee fails to attend original meeting and re-arranged meeting without a good reason

Time off – ante-natal care

• Unpaid time off

• Up to two ante-natal appointments

• Applies to woman’s husband, civil partner, partner, father, or intended parents in surrogacy arrangement

• Comes into force – 1 October 2014

Changes in legislation – to come

• 5 April 2015 – shared parental leave

Case law update

David Roath

LLP Partner

Paris Smith LLP

Redundancy

• Redundancy is a fair reason to dismiss

• Employer must act reasonably in all of the circumstances

• Procedural fairness is important

Redundancy

• Generally no obligation to:• ask for volunteers

• accept an application for VR• accept all applications for VR

• Employer can decide that volunteer has skills it can’t afford to lose

• But failure to accept application could affect fairness in certain circumstances

Redundancy

Stephenson College v Jackson

•7 employees in the pool

•A scored 1 point less than B•B applied for voluntary redundancy

•B’s application rejected and A was dismissed

•Decision no reasonable employer would have taken•Unusual circumstances

Unfair dismissal

• Dismissal for conduct• Employer must have reasonable belief that

misconduct has occurred• Decision to dismiss for that misconduct must be

within the “band of reasonable responses”• Size and administrative resources of the employer

are relevant factors• Is it fair to dismiss an employee on recommendation

of an external consultant?GM Packaging v Haslem

Unfair dismissal

• Owner and Director was witness and also investigated

• Generally:• Don’t conduct disciplinary hearing if a witness• Split roles of investigation, discipline and appeal

where possible

• Reasonable to:• Appoint external consultants to conduct disciplinary

and appeal hearings• Dismiss on recommendation

Unfair dismissal

• Employer must have fair reason as well as act reasonably

• Some other substantial reason is fair reason to dismiss

• Criminal charge or conviction can be fair reason to dismiss

• What about an allegation of criminal conduct?

Unfair dismissal

Z v A

•School caretaker

•Allegation of historic child abuse•No charge by police

•Police did not give a view

•No rule that mere allegation of abuse makes dismissal fair•Dismissal unfair in this case

Unfair dismissal

Z v A

•EAT referred to case of Leach v Ofcom

•Police had expressed a view in that case•Useful guidance in that case

•Very fine margins

Unfair dismissal

• Dismissal after final written warning

• Usually further act of misconduct will justify dismissal

• What if employee has appealed the earlier final written warning?

Unfair dismissal

Rooney v Dundee City Council

•Tribunal should take into account any proceedings that may affect the validity of that warning•Test is whether employer has acted reasonably•Fair to proceed in this case without hearing appeal

Recording

• Do you allow employees to record internal meetings?

• Covert recording?• Open and closed parts of disciplinary hearing

Recording

Punjab National Bank v Gosain

•Both private and public parts of recording were admissible•Be careful!•Vaughan v London Borough of Lewisham

•“distasteful but not necessarily inadmissible”

Maternity leave

• Whilst on maternity leave, employee entitled to:• the benefit of the terms and conditions of employment

which would have applied if she had not been absent• except for the terms as to remuneration• non cash benefits therefore must be retained• what about withdrawal of tools of job?• Section 18 Equality Act 2010• A person (A) discriminates against a

woman if, in the protected period in relation to a pregnancy of hers, (A) treats her unfavourably because of the pregnancy

Maternity leave

Metropolitan Police v Keohane

•Dog handler had 2 dogs

•1 removed during pregnancy•Removal and failure to reallocate were acts of discrimination

•Risk of impact on career progression and overtime on return

Post natal depression

• After maternity leave has ended, do you need to treat employee differently?

• Employee with post natal depression• S.18 Equality Act (pregnancy related discrimination)• Protected period – start of pregnancy to end of

maternity leave

• Sex discrimination

Post natal depression

Lyons v DWP Jobcentre Plus

•Maternity leave ended September 2010

•Dismissed for capability March 2011•Not pregnancy related discrimination

•Not sex discrimination

Vicarious liability

• Employer liable for discriminatory acts of employees under Equality Act 2010

• Away from discrimination, for employer to be vicariously liable needs to be:• such a sufficiently close connection with the

wrongdoing

• that it can be regarded as in the course of employment

Vicarious liability

Mohamud v WM Morrison Supermarkets

•Vicious and unprovoked attack on M

•Look at closeness of connection of:• Act of employee and

• Duties he is required to perform

•Contact between sales assistant and customer not enough

Vicarious liability

• Employer can also be liable for acts of agents

• S. 109 Equality Act 2010

• Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal

• Needs to be express or implied consent that agent works on principal’s behalf

• Outsourced services?

Vicarious liability

Kemeh v MOD

•MOD contracted out catering

•Racist comment of caterer to MOD employee•Caterer not acting on behalf of MOD

•Working for Sodexho for benefit of MOD

Disability discrimination

• Knowledge of disability generally a pre requisite for discrimination• Treatment arising from disability• Duty to make reasonable adjustments

• Knew or could reasonably have been expected to know• How do you know?• What if doctor says not disabled?

Disability discrimination

Gallop v Newport City Council

•G suffered from stress related illness

•OH Advisors concluded that G not disabled•Could Council rely on medical reports?

•No – question of disability is for Tribunal to decide

•Employer must make its own judgement

Disability discrimination

Gallop v Newport City Council

•Frame questions carefully – guidance from Court of Appeal•Don’t ask in general terms whether the employee is a disabled person within the meaning of the legislation

•Pose specific practical questions directed to the particular circumstances of the putative disability

Disability discrimination

• Duty to make reasonable adjustments

• Clinical psychiatrist recommends that employer pays for an employee with work-related stress and depression to have private medical treatment

• Is this a reasonable adjustment?

Disability discrimination

Croft Vets v Butcher•C suffers from depression•Doctor recommended that employer pays for CBT and further psychiatric sessions•Employer in breach by not actioning recommendation•Payment:

• Not for private medical treatment generally, but

• Support to enable C to return to work and cope with work related difficulties

Religious discrimination

• Can you require a Christian to work on a Sunday?

• Indirect discrimination

• Focus is often on justification• Must be a proportionate means of achieving a

legitimate aim

Religious discrimination

Mba v London Borough of Merton•M was a Christian•Contractually required to work 2 out of 3 Sundays•Was group disadvantage, but justified•Balancing exercise:

• Discriminatory effect• Reasonable needs of the employer

Religious discrimination

Mba v London Borough of Merton•Is there an alternative way of achieving aim?•No viable or practicable alternative way of running the care home effectively without requiring M to work on Sundays•M knowingly signed a contract requiring her to work on weekends

Thank you, any questions?

For further information and advice, please contact:

Clive Dobbin

LLP Partner

Paris Smith LLP

T: 023 8048 2370

E: clive.dobbin@parissmith.co.uk

www.parissmith.co.uk