1. Employment
Law Update :
Where are we?
Stuart Chamberlain

2. Programme
A NEW UNFAIR DISMISSAL REGIME
DEVELOPMENTS IN DISCRIMINATION LAW
AMENDMENTS TO TUPE
WHAT’S IN STORE?
SELECTED and RELEVANT CASE LAW 2013

3. Coalition Government’s employment law policy – a
reminder
 Employment Law Review throughout the life of government
 Remove regulatory burdens – The Red Tape Challenge – A “light
touch”
 Remove barriers to “flexible, effective and fair” labour market
 Aim to support employers, individuals and their families
 Better information & guidance (e.g. the Employer’s Charter)
 Encourage parties to settle rather than go to ET - & save money!

4. The relevant legislation
 Enterprise and Regulatory Reform Act 2013
 Growth & Infrastructure Act 2013
 Collective Redundancies and Transfer of Undertakings
(Protection of Employment) (Amendment) Regulations
2014
 Children and Families Act 2014
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5. 1. CHANGES TO UNFAIR DISMISSAL
REGIME – including REDUNDANCY

6. Changes to unfair dismissal- a brief reminder
 Change in qualifying period increased from one to two years
 Cap on compensation for unfair dismissal: employee’s wages for
12 months or current cap of £76,574 – whichever is the lower.
 New unfair dismissal claim – where the reason for dismissal is
the employee’s political opinion or affiliation
 Introduction of Settlement Agreements
 Introduction of Fees at Employment Tribunals[
 And 2014 : referral of all claims to ACAS for Early Conciliation

7. Implications for LA employers
 Obviously now more difficult for employees to bring
claim of unfair dismissal. Claims by other routes?
 Will trade unions be able to fund multiple claims?
 Implications of announcement of fall in claims?
 “Whistleblowing” regime: new liabilities for employer
 Response to new claims for dismissals on grounds of
political opinion or affiliation (the Redfearn case)?

8. Redundancy
 Employees on fixed-term contracts excluded from
collective consultation obligations (but agency
workers?)
 Minimum consultation period reduced from 90 days to
45 days (where 100+ employees are affected within
90 days’ period)
 BUT upper limit on protective award remains 90 days
 ACAS non-statutory code of practice “How to manage
collective redundancies” – checklist of key points
 “Woolies” case referred to CJEU (legality of “one
establishment” in legislation)
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9. 2. Changes to DISCRIMINATION Law

10. DISCRIMINATION: A CLIMATE CHANGE?
 Significant changes to EHRC
 Removal of third party harassment: now what?
 Review of Public Sector Equality Duty and specific
equality duties – not fit for purpose?
 Discrimination questionnaire procedure repealed –
implications?

11. 3. AMENDMENTS TO TUPE 2014
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12. Amendments to TUPE 2014
 Amendments to TUPE 2006 in January 2014
 New BIS guidance on TUPE
 Major reform or merely tinkering?
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13. Amendments to TUPE 2014
 SPC retained with new test: “fundamentally the same”
 Changes to collective agreements
- the “static” approach to liability for terms and conditions (pay)
- possible variation after 12 months subject to “overall”, no less
favourable
 Amendments to dismissal regime ( new test: transfer the reason;
“connection with the transfer” removed from legislation)
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14. Amendments to TUPE 2014: variation of terms
More opportunities for transferee to vary terms and conditions:
Changes void if transfer the reason, unless:
ETO reason entailing changes in workforce- and new ETO
Express term in contract(mobility or flexibility clause) (location)
Collective agreements ; after 12 months but , overall, new terms
must be no “less favourable”
And, according to BIS guidance, where positive/ beneficial for
employee – can this be right?
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15. Amendments to TUPE 2014: variation to terms
 BUT “Harmonisation” remains unlawful ( contrary to EU law -
see Daddy’s Dance Hall) – UK to consult with EU partners –
 So what can the transferee do? Only safe legal way is
reorganisation – satisfies ETO reason entailing changes in
workforce
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16. Amendments to TUPE 2014
 Transferee can start to consult pre-transfer – subject to
transferor’s approval – how realistic?
 ETI – now 28 days
 All came into effect on 31 January 2014 – apart from ELI, which
will change on 1 May 2014.
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17. WHAT’S IN STORE ? LEGISLATION ETC
2014 - 2015

18. Legislation 2014: in place in April 2014
 ACAS Early conciliation
—The 4-stage process
—Potential problems?
—Will it work?
 Financial penalties in ET for employers (£5000?)-

19. Legislation 2014 continued
 Right of flexible working extended to all employees with 26
weeks’ service – but delayed (to end of June 2014?)
— Outline of the scheme
— Acas Code of Practice & Guidance
— Implications and problems?
 New Health & Work Service for employees absent for 4 weeks
due to sickness (spring 2014) & revision of “Fit-Note (?)
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20. Consultations 2014
 Consultation on ACAS Disciplinary & Grievance Code
 Zero Hours Contracts – to improve transparency
 Caste discrimination – but see ET case
 And remember need for changes in Working Time
Regs – carry over of annual leave
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21. Legislation 2015
 Flexible/ Shared Parental Leave – parents will have
the ability to “split” 52 weeks of parental leave at any
point from 2 weeks after birth
 Time off for Ante-natal appointments - fathers and
other qualified persons will be entitled to time off
work to attend 2 ante-natal appointments with
expectant mothers.
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22. 5. CASE LAW in 2013: a selection
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23. Case law - 1
 USDAW v Ethel Austin Ltd (in administration) – the
“Woolworths’ case” Collective consultation obligation is
triggered by 20 in business/organisation – regardless of the
number at individual sites-referred to CJEU.
 Wright v North Ayrshire Council: for constructive
dismissal claim the employer’s breach must be part of the cause
of resignation, not the effective cause.
 Toal v GB Oils: EAT ruled that the right to choose companion
was the employee’s choice and the employee’s alone -Acas
advice misleading – Code to be revised.
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24. Case law - 2
 Wade v Sheffield Hallam University (EAT): waiver of
competitive interview not a reasonable adjustment – Archibald
will not always apply
 Sohbi v Commissioner of Police of the Metropolis
(EAT): new second limb of test of disability: whether the
impairment impacts on someone’s participation in professional
life
 City and Council of Swansea v Gayle (EAT): Fraudster
not unfairly dismissed & no breach of Article 8 (right to privacy)
or of Employment Practices Code ( DPA).
 Working Time cases
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25. Case law - 3
Redundancy – alternative work – unfair selection:
Somerset County Council v Chaloner
City of Newcastle Council v Ford
Lessons for employers and HR?
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26. Conclusions & Questions
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