Round up of HR and Employment Law 2011

There have been some substantial changes to employment legislation in the course of this year.  We have summarised important points below, along with significant case law and a quick look at what 2012 holds.

April:

The proposed extension of the right to request flexible working to include parents of children up to aged 18 was revoked before it was due to come into force on 6 April 2011.

• Additional paternity leave of up to 6 months available
• Equality Act 2010: a number of provisions of the Act will came into force including positive action in recruitment and promotion, but the decision was made not to proceed with the dual discrimination provisions in the Act.
• Taxation of termination payments: employers must use an OT PAYE code not a BR code for post-P45 payments.
• Immigration: the permanent migration cap came into effect restricting the number of certain non-EU immigrants entering the UK to work.

July:

Bribery Act creates a new offence which can be committed by commercial organisations that fail to prevent persons associated with them from bribing another person on their behalf.  An organisation that can prove it has adequate procedures in place to prevent persons associated with it from bribing will have a defence to the section 7 offence.

If you would like a policy and procedure for your organisation Hardwick HR can supply one.

October:

Default Retirement Age abolished meaning that employees can no longer be made to retire at 65 unless that retirement can be objectively justified. There will be a limited number of occasions where retirements are essential (e.g. for health and safety reasons).

Agency Workers Regulations ensure that after a 12 week qualifying period temporary agency workers receive the same working and employment conditions as someone directly employed to do the same job.  The regulations cover conditions such as remuneration, paid holiday, working hours, overtime, bonuses and commission, maternity and anti-discrimination provisions and Agency workers must now also have equal access to employment opportunities, collective facilities and training.

Employment Tribunal decisions this year have raised some interesting points:

Employee references references must be truthful and any negative comments must be placed in context, and if allegations have not been investigated this must be stated.  Take particular care when wording compromise agreements.

Whistleblowing: While an appeal found that an employer was not liable for the reactions of colleagues to whistleblowers, reasonable steps should be taken to protect them particularly since there is no cap on compensation for whistleblowing claims.

Disability Discrimination: The nature of ‘reasonable adjustments’ required for disabled workers can be influenced by costs, but all relevant factors must be considered.

The purpose of reasonable adjustments under the disability discrimination legislation is to enable disabled persons to fully participate in the world of work, not provide compensation for being unable to do so.

Sex Discrimination: Care must be taken when treating employees differently to remove disadvantage related to pregnancy to ensure that it is proportionate and does not discriminate against other employees.

Sick leave, holidays and the Working Time Regulations have led to conflicting outcomes. in the cases of Larner and Fraser during 2011 and it is yet to be finally decided on Appeal.  The most recent finding was that workers have a choice: to take statutory holiday while off sick, or to ask for the holiday to be deferred until their return to work. This does not mean the obligation to give notice of intention to do so is dispensed with; if a worker on sick leave wishes to defer taking their statutory holiday to another leave year, they must ask to do so.

Further litigation is inevitable. The case of Larner is currently on appeal to the Court of Appeal. As the Fraser decision contains a much fuller consideration of the preceding case law and is a decision of the President of the EAT, it is likely to hold more sway.

There is also some indecision on the time over which annual leave can be accumulated and carried forward. 

 Looking ahead to 2012

In November the Government confirmed plans to overhaul key areas of employment legislation, following a consultation and a review of employment law.

Changes to the dismissal system are expected, which could result in organisations with fewer than 10 employees being free to use the “compensated no-fault dismissal” system.  It has been confirmed that from April 2012 the qualification period for unfair dismissal will be increased from one to two years.

Changes to Employment law that will definitely be happening include:

• An increase in the unfair dismissal qualifying period to two years from April 2012
• Allowing employment judges to hear unfair dismissal claims alone, and making this the normal rule i n the EAT.
• Imposing a financial penalty on employers who lose in the tribunal, based on the total amount of any tribunal award against them.
• Increasing to £20,000 the maximum award of costs a tribunal can make without ordering detailed assessment.

Ideas that still need to be developed further include:

• Making ACAS the gatekeeper for new claims, with a bar on issuing a claim until ACAS has had a chance to conciliate.
• A fundamental review of the employment tribunals rules of procedure.
• The introduction of fees in employment tribunals so that employees pay an initial fee to lodge a claim and a second fee to take the claim to hearing.  Those seeking an award above a £30,000 threshold will pay more.
• Simplification of compromise agreements, combined with the introduction of “protected conversations”.
• The introduction of a “rapid resolution regime” for simpler claims.

The Government is also interested in exploring ways in which the TUPE Regulations and rules on collective redundancies could be clarified or amended, making CRB checks fully transferable and consolidating the national minimum wage regulations.