Chris Finlay Partner

2. Chris Finlay Partner Mark Haworth Associate EMPLOYMENT LAW UPDATE CIPD LEICESTERSHIRE BRANCH 6 OCTOBER 2009

3. Repeal of the Statutory Disciplinary and Grievance Procedures ACAS Code of Practice

4. ACAS Code of Practice • Disciplinary matters • Grievance matters • Penalties for non-compliance (adjustment by up to 25%)

5. ACAS Code of Practice • Fairness and transparency promoted • Rules should be set down in writing, be specific and clear • Disciplinary or grievance process must be dealt with fairly • Issues should be dealt with promptly • Employers and employees should act consistently • Conduct “necessary investigations” • Inform employee of problem and provide opportunity to put their case • Right to be accompanied • Right to Appeal against any formal decision • Keep written records

6. ACAS Code of Practice Disciplinary matters • Establish the facts of each case • Investigatory meetings • Inform the employee of the problem • Disciplinary meeting • Right to be accompanied • Decision • Appeal

7. ACAS Code of Practice Grievance matters • Employee should “let the employer know the nature of the grievance….This is best done in writing.” • Meeting • Right to be accompanied • Decision • Employee “should be allowed to take the matter further on appeal”

8. London Borough of Lewisham v Malcolm

9. Malcolm • The Disability Discrimination Act 1995 is “an ambitious and complex Act, seeking to prevent disabled people being treated disadvantageously because of their disability” (Lord Bingham)

10. Malcolm Disability Related Discrimination A person discriminates against a disabled person if: • For a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and; • He cannot show that the treatment is justified.

11. Malcolm Summary • Applies to Employment cases. • Overrules Clark v Novacold in relation to comparators. • Knowledge required.

12. Malcolm Ways round it: • Reasonable Adjustments • Harassment • Disability Equality Duty • The Equality Bill

13. The Heyday Challenge to Compulsory Retirement ages

14. Heyday Challenge • Allegation that the Employment Equality (Age) Regulations 2006 did not correctly implement the European Framework Directive on discrimination • Retirement age of 65 held to be lawful • Would there have been the same result if the Regulations were more recent?

15. Heyday Challenge • The government is to bring forward its review of the default retirement age to 2010. • Consultation closes on 12 October 2009. • Rolls-Royce Plc v Unite the Union

16. Transition from “sick notes” to “fit notes”

17. Fit notes • Recommendations from Dame Carol Black in March 2008. • Government developing new “fit note”. • Trial of electronic certificate.

18. Trade Union Blacklists in the construction industry.

19. Blacklists • Not currently outlawed as such. • February 2009: offices of the Consulting Association raided by Office of the Information Commissioner.

20. Blacklists • More than 40 construction companies were current or previous members. • Is it actionable? • Government proposals: Employment Relations Act 1999 (Blacklists) Regulations 2009

21. Recent Legislative Changes

22. Recent Legislative Changes • Increase in maximum level of a week’s pay to £380.00 • Increase in national minimum wage (£5.73 to £5.80 per hour) • Increases with effect from 1 October 2009

23. The Equality Bill

24. The Equality Bill Aims • To harmonise Discrimination Law; and • To strengthen the law to support progress on equality Size • 205 sections and 28 schedules. Scope • Applies to England, Wales and Scotland • Will not apply to Northern Ireland

25. The Equality Bill Key concepts “Protected Characteristics” • Clause 4: The following characteristics are protected characteristics – age; disability; gender re-assignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

26. The Equality Bill Direct Discrimination • Clause 13 (1) A person (A) discriminates against another (B) if, because of a protected characteristic A treats B less favourably than A treats or would treat others.

27. The Equality Bill Indirect Discrimination • Clause 19 (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

28. The Equality Bill Discrimination arising from a disability Clause 15 (1) A person (A) discriminates against a disabled person (B) if – • A treats B in a particular way, • because of B’s disability, the treatment amounts to a detriment, and • A cannot show that a treatment is a proportionate means of achieving a legitimate aim

29. Equality Bill Other concepts: • Harassment • Victimisation • Secrecy clauses • Multiple discrimination • Positive action

30. Stringer & Others v HM Revenue & CustomsPereda v Madrid Movilidad SA

31. Stringer • Employees absent from work on long term sick leave • Had not taken any paid holiday • Employment terminated whilst on sick leave • Employees’ requests for payment in lieu of untaken holiday refused

32. Stringer European Court of Justice: • The employees were entitled to compensation in relation to untaken holiday. • A worker on sick leave who was unable to take entire annual leave entitlement must be allowed to carry it over to the next year. In the House of Lords: • Only issue related to whether claim for holiday pay can be made under Employment Rights Act 1996; • A payment in lieu of accrued holiday constitutes a sum payable to a worker in connection with his employment. As a result, it falls within the definition of “wages”. • Failure to pay such a sum was therefore an unlawful deduction from wages.

33. Pereda • Mr Pereda suffered an accident at work 14 days before starting his allocated period of 4 weeks’ annual leave. • The injury put him out of action for six weeks. • Would Mr Pereda “lose” his holiday?

34. Implementation of EU Temporary Agency Workers Directive

35. Agency Workers Consultation paper “The government supports the principle of ensuring fairer treatment for agency workers but we also consider it crucial to maintain the flexibility the agency sector provides for both workers and employers, which is a key strength of our labour market”.

36. Agency Workers Consultation paper “Basic Working and Employment Conditions” • Working time • Holidays • Pay

37. Agency Workers Consultation paper • Qualifying period of 12 weeks; • Improved access to permanent employment or training; • Temporary to permanent status; • Liability for breach

38. Very Recent Developments

39. Very Recent Developments • Increase in Vento damages • Extension of Paternity Leave rights • The meaning of “contemplating” collective redundancies; • Loss of pension rights in unfair dismissal compensation • Service provision changes and TUPE

40. Any Questions?