Walker Morris Employment Update Seminar - 30th September 2011

1. PRESENTATION PREPARED FOR THE CIPD EMPLOYMENT LAW UPDATE PREPARED BY ANDREW RAYMENT, LOUISA DEBOER AND LYDIA NEWMAN WALKER MORRIS 29 September 2011

2. Parental Leave and Flexible Working Proposals 10 Parental leave: Unpaid leave for fathers to attend antenatal appointments; An 18-week period of maternity leave; A new 34-week period of shared parental leave; Increase parental leave Changes may come into force in April 2015 Flexible working: Changes to the statutory request procedure More than one request may be made in any 12 month period

3. Employment Tribunal Statistics and Figures 9 Total Number of claims – 218,000 (8% decrease) 122,800 (9% increase), 12 % cases successful Mean awards: Unfair dismissal - £8,924 Race discrimination - £12,108 Disability discrimination - £14,137 Age discrimination - £30,289 Ministry of Justice statistics

4. The Equality Act update 8 Equality Act under review Combined discrimination abolished Third Party Harassment Socio-economic duty

5. TUPE 7 Albron Catering v FNVBondgenoten Parkwood Leisure Ltd v Alemo-Herron OTG v Barke Oakland decision wrong Pre-packs not exempt from TUPE

6. Employment Status 6 Employee, Worker, Self-employed Autoclenz v Belcher Reality of Legal relationship Discarding/Ignoring contractual terms Importance of a genuine right of substitution Impact for business – review the reality of relationship

7. Facebook and Social Networking 5 Preece v Wetherspoon Whitham v Club 24 Ltd t/a Ventura Damage to reputation Importance of Social Media Policy Acas Guidance

8. Right to Legal Representation 4 G v The Governors of X School No right to legal representation Article 6 not engaged as no determination of civil rights Kulkarni v Milton Keynes NHS Trust Profound career consequences may engage Article 6

9. Abolishment of Default Retirement Age 3 Impact on business Retirement is no longer a fair reason for dismissal Conduct, Capability, Redundancy, Illegality, SOSR Workforce management and planning Ignore age – it is a protected characteristic Greer v Coulter (t/a Alphreso Cafe) NIIT/2750/10

10. Case Study – Retirement 3 You have a 64 year old man, John Smith in your team. John's role involves a substantial degree of heavy lifting. You have noticed that John has had difficulty with lifting and other elements of his role for a few months but you have not taken any action because he is close to retirement age. What can you do about this situation? What steps should you now take?

11. Agency Workers Regulations 2 1 October 2011 – in force Day one rights Collective facilities, information on vacancies 12 week rights Pay, annual leave, rest periods and rest breaks, night working Swedish Derogation Tribunal claims BIS - Guidance

12. 2 Agency Workers Regulations Agency Workers are individuals who are: supplied by a Temporary Work Agency (TWA); and work temporarily for and under the supervision of a Hirer; and have an employment contract or any other contract with the TWA to perform work or services personally A Temporary Work Agency is an entity engaged in - supplying individuals to work temporarily for and under the supervision/direction of Hirers; or paying, receiving or forwarding payment for, the services of individuals who are supplied to work temporarily for and under the supervision/direction of Hirers A Hirer is an end user to whom individuals are supplied to work temporarily for and under the supervision and direction of that person

13. 2 Agency Workers Regulations The Regulations do apply to: Typical agency staff – where there is a tri-partite arrangement; Individuals working for Umbrella Companies; and Individuals who operate limited liability companies but are not genuinely self-employed The Regulations do not apply to: The genuinely self-employed; Workers who operate under Managed Service Contracts; Bank staff; or Seconded employees

14. Case Study – Agency Workers 2 You hire an agency worker to work as a receptionist. After 16 weeks she approaches you and complains that she is not being paid the same amount as other receptionists. They are all employed directly by you. What action should you take? How would you act differently if she complained that she was not being allowed access to the site’s staff common room?

15. The Future 1 Unemployment now stands at 2.51 million – 7.9% 20 million jobs already lost in G20 countries, expected to rise to 40 million by the end of 2012 “We are looking at a half decade of jobs drought. For the UK it will get worse before it gets better” – Dr John Philpott, chief economist CIPD Consequences: Increased unfair dismissal and discrimination claims Increased liquidations, administrations and redundancies Reduced levels of morale, workforce problems

16. The Future 1 Red Tape Challenge: Discrimination compensation TUPE Collective redundancy Tribunal Proposals: Unfair dismissal – 2 year qualifying period; Acas pre-claim conciliation; Increased powers to strike out, order deposits, case management; Calderbank offers Judges to sit alone in Unfair Dismissal claims

17. Questions?

18. Andrew Rayment Employment and Human Resources Partner Contact details: andrew.rayment@walkermorris.co.uk Tel: 0113 283 2500

19. Louisa Deboer Employment and Human Resources Associate Contact details: louisa.deboer@walkermorris.co.uk Tel: 0113 283 2500

20. Lydia Newman Employment and Human Resources Solicitor Contact details: lydia.newman@walkermorris.co.uk Tel: 0113 283 2500

22. The end of the Default Retirement Age (DRA) and succession planning with your business