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Employment law roundup

publication date: Sep 15, 2006
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The employment law landscape is for ever changing as a result of the introduction of further legislation and developments in case law. In this article, Gareth Edwards reviews recent changes in the law and also highlights key changes to watch out for in the next 12 months. Disability Discrimination At the end of last year, the definition of disability was amended to specifically include individuals who were diagnosed as suffering from HIV, multiple sclerosis and cancer. Previously, if an individual suffered from a mental impairment, it had to be clinically recognised. This requirement has now been removed. To supplement the revised definition of disability, the statutory guidance and the meaning of disability has also been revised and re-issued.

Unfair Dismissal Awards

The annual review of unfair dismissal rewards took place in February 2006 and the maximum weekly pay for the purposes of calculating the basic award was increased to £290 which means that the maximum basic award has now increased to £8,700. The compensatory award was increased from £56,800 to £58,400. The higher awards apply to any dismissal after 1 February 2006.

The Transfer of Undertakings Regulations 2006 (TUPE)

In April 2006 the long awaited new TUPE Regulations were issued and the DTI has issued guidance which can be found on their website, www.dti.gov.uk

TUPE applies to protect employees and their terms of conditions when their employer changes as a result of a sale of a business or an outsourcing of work. The key changes include:

  • A widening of the scope of the Regulations to specifically cover outsourcing or change in contractor situations;
  • A new duty on the old employer to provide the new employer with information about the employees’ terms and conditions of employment at least two weeks prior to the transfer;
  • Additional provisions dealing with transfers arising out of insolvency situations; and
  • Both the old and the new employer will now be jointly and severally liable for any failure to comply with the collective consultation obligations which apply prior to a transfer taking place.

Increase in statutory sick pay, maternity, paternity and adoption pay

From 2 April 2006, the amount of statutory sick pay was increased from £68.20 to £70.05 per week. At the same time, the rate of maternity, paternity and adoption pay was increased from £106 to £108.85.

Case law clarifies the Dispute Resolution Procedures

Under the statutory grievance procedure, an employee is required to send a written grievance to the employer and wait for 28 days before presenting a complaint to an employment tribunal. If this is not done the employee may be debarred from issuing employment tribunal proceedings.

In a number of cases the employment appeal tribunal (EAT) has considered what is sufficient to amount to a grievance so that an individual can proceed with his/ her employment tribunal claim.

The main principles to come out of the cases are:

  • A letter of resignation from an employee may be sufficient to comply with the first stage of the grievance procedure;
  • A solicitor’s pre-action letter written on behalf of an employee was also sufficient to amount to a grievance, as was a solicitor’s letter marked “without prejudice”;
  • A formal request for flexible working which followed an informal request that was refused was also sufficient to amount to a grievance;
  • The issuing of a statutory questionnaire under the discrimination legislation which raised concerns about the workplace could not amount to a grievance.

The courts have also looked at what constitutes an appeal in a disciplinary procedure. What amounts to reasonable grounds was considered in the recent case of Piscitelli -v- Zilli Fish Limited. In this case, a solicitors letter to the employer alleging unfair dismissal and seeking to negotiate a settlement does not for the purposes of the statutory dismissal procedures. This is because the letter did not seek reinstatement or re-engagement which is invariably the purpose of an internal appeal against dismissal.

Calling time on a working time exemption

The flexibility that employers enjoyed in relation to employees who had some pre-determined hours but also voluntarily worked for longer was removed in April this year and the employees with partly unmeasured working time will now be subject to the usual limits on average weekly working time and in relation to any night work that they do.

Age Discrimination

Possibly the largest change to the employment laws in the work place in the UK for 30 years is due to take place in October 2006 when the Employment Equality (Age) Regulations 2006 are introduced. The Regulations will outlaw age discrimination in employment and remove upper age limits on the right to claim unfair dismissal and redundancy payments. A statutory procedure with regard to retirement at the age of 65 and the options to work beyond 65 will also be introduced.

The final version of the Regulations can be found at www.dti.gov.uk/si/si2006/20060246.htm and ACAS has published useful guidance on the new Regulations which can be found at www.acas.org.uk.

Commission for Equality and Human Rights (CEHR)

The Equality Act 2006 establishes the CEHR which will come into effect in April 2007. The existing EOC, CRE and DRC will be merged to form the new CEHR which will also have enhanced powers of enforcement.

Work and Families

The Government is currently consulting on proposed changes to the maternity and adoption leave rules to extend the maternity and adoption pay from 6 months to 9 months from April 2007. It is also proposing to extend the right to request flexible working to carers of adults from April 2007. The Government is also currently consulting on an additional paternity leave scheme which would give fathers the rights to up to 26 weeks leave, some of which could be paid if the mother returns to work during her maternity or adoption leave period.

Protecting Vulnerable Workers and Support Good Employers

In March this year, the Government launched its strategy to protect vulnerable workers and support good employers. This is largely an aspirational document but does set out the focus of the Government’s employment strategy for this Parliament and includes proposed additional regulations for the low paid and those who work flexibly and look to achieve a work life balance.