Blake Lapthorn solicitors HR Forum held on 2 February 2010

1. Thames Valley HR forum
Review of 2009
Looking forward to 2010

2. Review of 2009 – the highlights
Alexandra Robinson

3. Dismissals - general
Date of termination
– Where dismissal is communicated by letter, the date of
termination will generally be the date on which the letter is
read by the employee
Gisda Cyf v Barratt

4. Redundancy dismissals
Time limits
– A redundant employee may have more than three months to
bring a claim for unfair dismissal
Cambridge and Peterborough Foundation NHS Trust v Crouchman
Criteria for selection
– “Length of service” is capable of being justified as criteria for
selection
Rolls Royce plc v Unite the Union
– Selection criteria must not only be objective, but must also
be objectively assessed
Howard v Siemens Energy Services

5. Dismissals - compensation
Notice payments
– In a case of constructive dismissal, earnings from new
employment during the notional notice period must be taken
into account when assessing compensation
Stuart Peters Ltd v Bell
"Stigma" compensation
– An employee was entitled to claim compensation from his
former employer for the fact that third parties would not
employ him because he had brought a discrimination claim
Chagger v Abbey National plc

6. Discrimination - age
Default retirement age
– Employers can continue to rely on the default retirement age
for the time being
Heyday

7. Discrimination - religion and belief
Climate Change
– Belief in climate change and the need to act in the interests
of the environment are capable of amounting to a
philosophical belief and therefore capable of protection
Grainger plc and ors v Nicholson
Psychic belief
– Belief that psychics can help solve criminal investigations is
also capable of protection
Power v Greater Manchester Police

8. Discrimination – civil partnerships
Civil partnerships
– A Christian registrar did not suffer discrimination when
threatened with dismissal for refusing to register same-sex
civil partnerships
Ladele v Islington LBC
– A Christian relationship counsellor did not suffer
discrimination when dismissed for not counselling same-sex
couples about their sex lives
McFarlane v Relate Avon Ltd

9. Discrimination
Harassment
– Harassment "on the grounds of religion or belief" covers
conduct on the ground of another person's religion or belief
Saini v All Saints Haque Centre
Work permits
– Refusal to consider job applications from candidates
requiring a work permit constituted unlawful indirect race
discrimination
Osborne Clarke Services v Purohit

10. Discrimination - sexual orientation
“Sexual orientation”
– An employee who was known by his colleagues to be
heterosexual was protected from homophobic harassment
English v Thomas Sanderson Blinds Ltd

11. Discrimination - disability
Discrimination by association
– The Disability Discrimination Act can be interpreted as
prohibiting direct discrimination or harassment by
association with a disabled person
Coleman v EBR Attridge Law LLP
Disability related discrimination
– Lewisham v Malcolm applied by the EAT
Child Support Agency v Truman; Stockton-on-Tees BC v Aylott

12. Discrimination - compensation limits
Vento guidelines increased
– lower band: £5,000 increased to £6,000
– middle band: £15,000 increased to £18,000
– upper band: £25,000 increased to £30,000

13. Holiday entitlement
Holiday and sickness absence
– A claim for backdated holiday pay can be brought by using
the concept of a series of “unlawful deductions from wages”
Stringer
Sickness during holiday
– An employee was entitled to a replacement holiday period as
he was unable to take holiday during a period of illness
Pereda v Madrid Movilidad SA

14. Refused holiday leave lost
– An employee lost his entitlement to leave where his request
was refused shortly before the end of the holiday year
Lyons v Mitie Security
Holiday pay on termination
– Pay in lieu of untaken holiday on termination of employment
is not necessarily confined to the current holiday year
Wang v Beijing Ton Ren Tang (UK) Ltd

15. Annual leave entitlement
- Statutory annual leave under the Working Time Regulations
1998 increased in April last year from 4.8 weeks to 5.6
weeks (with a maximum statutory entitlement of 28 days)

16. Disciplinary and grievance procedures
Abolition of Statutory Procedures
ACAS Code of Practice – all change?

17. Family friendly provisions
Right to request flexible working
– Extended to parents of children up to and including 16 from
April 2009

18. Looking forward to 2010
Debbie Sadler

19. Equality Bill
Why?
– Manifesto commitment
– Harmonise discrimination law
– Strengthen discrimination law
When?
– Royal Assent April 2010
– Effective from October 2010
Equality and Human Rights Commission - guidance

20. Equality Bill
Protected Characteristics
– age
– disability
– gender reassignment
– marriage and civil partnership
– pregnancy and maternity
– race
– religion or belief
– sex
– sexual orientation

21. Equality Bill
Direct Discrimination
– “because of” not “on the grounds of”
associative discrimination
perceptive discrimination
dual discrimination
NB: not marriage and civil partnership (or maternity
and pregnancy for dual discrimination

22. Equality Bill
Indirect discrimination
– disability discrimination
– gender reassignment
Harassment
– third party harassment
Victimisation
– removes need for absolute comparator

23. Equality Bill
Disability discrimination
– Normal day to day activities
eight functions removed
– Associated discrimination
– “Discrimination arising from disability”
– Indirect discrimination

24. Equality Bill
Equal Pay and Positive Action
– “genuine Material Factor” defence
– secrecy clauses
– publication of pay differences
Positive action
– Recruitment and promotion

25. Additional Paternity Leave and Pay
Current right – 2 weeks paid leave
– if employed for 26+ weeks
– within 56 days of birth
From April 2010 – up to 26 weeks within first year
– From 20 weeks after birth
– 13 weeks paid if mother returns to work
Applies to births or adoptions after 3 April 2011

26. The Safeguarding Vulnerable Groups Act 2006
Independent Safeguarding Authority (ISA)
– central vetting and barring scheme
– brings previous lists under one agency
– decisions re who works with children and vulnerable
adults
– database to be regularly monitored and updated

27. The Safeguarding Vulnerable Groups Act 2006
Regulated activities
– anyone working with children or vulnerable adults on a
frequent or intensive basis e.g. healthcare, teaching,
training, care
– frequent – once a week or more
– intensive – four or more days in one month or
overnight

28. The Safeguarding Vulnerable Groups Act 2006
Commit criminal offence if
– permit a barred or unregistered worker to engage in
regulated activity where they know or have reason to
believe that the person is barred/unregistered
– fail to provide information as part of duty to refer
– fail to check the worker is ISA registered
Obligation falls on regulated activity providers,
employment businesses etc.

29. The Safeguarding Vulnerable Groups Act 2006
Controlled activity
– frequent and intensive activity ancillary to healthcare in
hospitals etc
– end users will be able to engage someone barred from
regulated activity in certain circumstances

30. The Safeguarding Vulnerable Groups Act 2006
Duty to refer where individual has ceased work
because harmed child/vulnerable adult or placed at
risk of harm

31. Tribunal Compensation limits
Changes 1 February each year
Employment Rights (Revised Limits) Order 2009
– from £66,200 to £65,300
Weeks pay
– unfair dismissal basic award
– statutory redundancy calculation
– £380 per week (October 09)