Employment Law Review 2009-2010
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2009 was another busy year for all those working in HR and employment law. The Government, through the Employment Act 2008, introduced important changes in abolishing the Statutory Disciplinary and grievance processes, and replaced this with a revised requirement to follow the ACAS Code of Practice on discipline and grievances. Other changes included proposals to give agency workers new or enhanced rights on the same basis as employees; the Equality Bill, which is currently progressing through Parliament promising changes to promote equality (although the Bill may not reach the statutory book, depending upon parliamentary time and who wins the next General Election); the Apprenticeship, Skills, Children and Learning Act 2009 which will overhaul apprenticeship legislation and introduce a new basic right to request time off for training; and new regulatory guidance on bankers' bonuses. At European level, perhaps the most significant change is the Lisbon Treaty which has important implications for UK employment law through the incorporation of the Social Charter on Employment Rights into European Union Law. Our annual Employment Law Review provides an overview of developments during 2009 and looks at what 2010 may have in store. |
Long Term Sickness - October 2009
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The termination of employment of an employee who is absent due to sickness is now a complex matter. Potential liabilities are more numerous and greater than before. An employer must take into account the type of illness or condition, the procedure to be followed, the information it needs to make key management decisions about the sick employee, and the employment rights it must observe to avoid expensive litigation. Those employment rights include notice rights (whether contractual or statutory), unfair dismissal rights, contractual entitlements to benefits under a Permanent Health Insurance policy (PHI) or Long Term Disability policy, disability discrimination rights under the Disability Discrimination Act 1995 (“DDA”), and ill-health early retirement pension rights. A structured approach is required by management so that the above rights are taken into account in arriving at the best solution, i.e. the solution which minimises liability for the Company. This requires careful management control. Getting it wrong can prove very expensive, as there is no statutory limit on compensation for disability or age discrimination; damages for not providing PHI benefits could reflect loss of benefits to normal retirement age or further, and given the maximum compensatory award for unfair dismissal, the employer must consider the type of illness or condition involved. This document deals primarily with those on long term sickness absence or where the illness or condition indicates a disability for the purposes of the DDA. |
Religious & Sexual Orientation Anti-Discrimination Law
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The Employment Equality (Sexual Orientation) Regulations 2003 came into force on 1 December 2003 and the Employment Equality (Religion or Belief) Regulations 2003 came into force on 2 December 2003 (together the "Regulations"). They prohibit discrimination on grounds of sexual orientation (or perceived orientation) or religion or belief. |
Part time workers
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On 1 July 2000 the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 were introduced into UK law. The Regulations introduced a prohibition on employers unjustifiably discriminating against "workers" on the grounds that they are employed on a part-time basis. So generally speaking, it is now unlawful to pay a part-timer less per hour or not provide the same pro-rated benefits as full-time workers, unless it can be objectively justified. This note provides a summary of the Regulations and should be considered in conjunction with other employment rights, such as the right not to be discriminated against, the Equal Pay Act and the Employment Act 2002 (right to request flexible working). |
Privacy At Work: Data Protection And The Regulation Of Investigatory Powers Act 2000
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Privacy at work has become a hot topic in recent times, and this paper, originally written by Peter Doyle, and updated by our data protection expert Piers Leigh-Pollitt, brings together all the key changes in recent times. Included is commentary on the Information Commissioner's Employment Practices Code, an up to date look at the Government's concerns about how public authorities are misusing the Regulation of Investigatory Powers Act, and advice on how the courts are approaching the thorny issue of covertly obtained evidence. |
TUPE Revised
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The Transfer of Undertakings (Protection of Employment) Regulations 2006 ("the Regulations") came into effect on 6 April 2006 replacing the original 1981 version. This document is an introduction to the key changes. The Regulations and the BERR Guide are available on the BERR website. The 2006 Regulations apply to TUPE transfers, which occur on or after 6 April 2006. |
Top Data Protection Issues for HR Managers
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This document summarises the key issues for HR professionals in dealing with data for the purposes of the Data Protection Act 1998. It is intended as a practical guide and not an exhaustive account of the relevant law which is complex and covers such areas as record keeping , requirements on recruitment , vetting, medicals, testing, email monitoring , and business disposals. |
Age DIscrimination Law
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The UK Government must implement age discrimination law by December 2006. The Government will introduce such legislation to give effect to the EC Equal Treatment Framework Directive 2000 in the area of age discrimination on 1 October 2006. The first consultation paper on age discrimination appeared in July 2003 “Equality and Diversity: Age Matters”. In July 2005, the second consultation paper entitled “Equality and Diversity: Coming of Age” was published which in large part was based on responses to the earlier paper and contained draft regulations. This consultation period came to an end on 17 October. The final draft Regulations were laid before Parliament in March. These were accompanied by a detailed Note on the Regulations and a Report on responses to the Consultation Paper. |
Job References File 1
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Basic Summary
• Any reference provided must be accurate as to its contents and must not be misleading;
• there is a need for a clear policy so that the giving of references whether in writing or orally is properly recorded;
• if a restricted reference approach is adopted, the company must stick to it;
• a restricted reference may still result in a claim as the law has yet to deal properly with the issues here;
• an employer should clearly set out who should be responsible for the giving of references to ensure mistakes are not made;
• all references given should be marked “Strictly Private & Confidential”;
• each reference should be accompanied with a disclaimer regarding any liability in negligence or otherwise arising from the reference;
• warn employees who are not responsible for giving references that they must not give out information even of an informal nature to a prospective employer, and in particular give guidance that there is no such thing as an “off the record” comment.
• There is no general duty to provide a reference, but employers who do not provide a reference may face claims for unlawful discrimination – as a refusal could amount to victimisation.
These points are explored in more detail in the accompanying document. |
