3 Month Probation Trial Employment Contract EMPLOYMENT LAW UPDATE FOR HR MANAGERS by wfb81115

VIEWS: 199 PAGES: 58

More Info
									 EMPLOYMENT LAW UPDATE FOR HR
MANAGERS + THE OCTOBER CHANGES
     AND THE LATEST CASES



        Clarkson Wright and Jakes LLP
                Valiant House
                 12 Knoll Rise
          Orpington, Kent, BR6 OPG.
                01689 887887
Employment Law Update




        Employment Law
           Seminar

       24 November 2009
April and October changes and
forthcoming legislation




          PRITTI BAJARIA
APRIL 2009




 • Increase in Statutory Annual Holiday
   Entitlement (www.bis.gov.uk)
 • Increases to rates of SSP, SMP, SPP
   and SAP
 • Register of Judgments, Orders and
   Fines
APRIL 2009



 • Repeal of Statutory Dispute Resolution
   Procedures

 • Changes to National Minimum Wage
   enforcement
APRIL 2009



 • Extension of right to request flexible
   working
OCTOBER 2009


 • Increase to maximum limit of a weeks’
   pay

 • Changes to National Minimum Wage
    Increase to rates
    Prohibition on tips
OCTOBER 2009



 • Supreme Court Rules 2009 came into
   force

 • Vetting and Barring Scheme for
   safeguarding vulnerable adults and
   children
FORTHCOMING LEGISLATION



 • The Equality Bill

 • Review of Default Retirement Age
FORTHCOMING LEGISLATION



 • Additional Paternity Leave and Maternity
   Pay

 • Agency Workers Right to Equal
   Treatment
Recent case law review




          WILLIAM ADDIS
Recent case law review




            Introduction
Recent case law review


            Recent headlines

 • KPMG forced to pay £45,000 in
   discrimination case
 • Employment tribunal judge finds claim by
   dyslexic former KPMG employee for
   unlawful discrimination is well founded.
 • Accountancy Age, 06 Oct 2008
Recent case law review


               Recent headlines
 • Dismissal of probation officer for
   involvement in sadomasochism not
   breach of human rights
 • Fair to dismiss an employee whose
   private life was incompatible with job and
   brought employer into disrepute.
 • Practical Law Company 7 October
   2008
Recent case law review


               Recent headlines
 • Romanian accountant awarded £750
   following £40 million compensation claim
 • An accountant who made a £40 million
   compensation claim alleging bosses at a top
   City firm made her feel "like a prostitute" has
   been awarded just £750 for victimisation.
 • The Telegraph online 25 Sep 2009
Recent case law review




            The Top Five
Recent case law review


 Case 1: Retirement of employees

 •   The Heyday case
 •   2009 EWHC 2336, 25 September 2009
 •   The facts
 •   The decision
 •   The implications
Recent case law review


 Case 2: Recruitment of employees

 •   Cheltenham Borough Council v Laird
 •   2009 EWHC
 •   The facts
 •   The decision
 •   The implications
Recent case law review


 Case 3: Redundancy and
 Discrimination of employees

 •   Grainger plc and others v Nicholson
 •   UKEAT/0219/09
 •   The facts
 •   The decision
 •   The implications
Recent case law review


 Case 4: Insolvent businesses and
  employees

 •   Oakland v Wellswood (Yorkshire) Ltd
 •   The facts
 •   The decision
 •   The implications
Recent case law review


 Case 5: Costs in tribunals against
 Employees

 •   Daleside Nursing Home Ltd v Matthew
 •   UKEAT/0519/08
 •   The facts
 •   The decision
 •   The implications
Recent case law review




            Conclusions
Disciplinary & Grievance Procedures and the
ACAS Code following the repeal of the statutory
procedures




              ROSA BRENNAN
The Statutory Disciplinary and Grievance
Procedures


  • Repealed in April 2009
  • Transitional arrangements no longer
    relevant
  • Replaced by the ACAS Code of Practice
    and the ACAS Guidance
  • The Guidance does not have to be taken
    into account by the Tribunal
  • Breach of the Code has consequences
DISCIPLINARY PROCEDURE
What has changed?

 • Breach of Code will not make an organisation
   liable to proceedings (no automatically unfair
   dismissal)
 • Only applies to disciplinary situation
 • Does not apply to dismissal on the grounds of
   redundancy or termination of a fixed term
   contract
 • Time limits have changed (back to 3 months –
   no 3 month extensions)
 • Adjustments to compensation now maximum
   25% up or down
Why is it important to follow the Code?



  • Avoid an unfair dismissal claim
  • It can affect the level of compensation
  • Tribunals will take the Code into account
    when considering cases
  • Tribunals can adjust awards in relevant
    cases by up to 25%
How should misconduct or poor performance be
handled?


  • Investigate the issues
  • Inform the Employee of the issues in
    writing
  • Hold a disciplinary hearing
  • Inform the Employee of the decision in
    writing
  • The Employee has the right of appeal
Areas of Uncertainty


  • Involving Employees in developing
    procedures
  • Evidence at disciplinary hearings
  • Only claims by Employees are affected
  • Uncertainty over compensation
Practical Steps for Employers


  • Involve Employees and/or their reps in
    developing any new disciplinary procedures
  • Manage conduct and performance issues pro-
    actively
  • Investigate issues thoroughly
  • Keep written records
  • Communicate decisions effectively and
    promptly
GRIEVANCES


 • Why is it important to follow the ACAS
   Code?

 • It can avoid a potential claim
 • It can affect the level of compensation
How has the law changed?


 • Best practice advice should not change
   significantly
 • Rules on admissibility of claims, time
   limits and compensation have changed
How Grievances should be handled


 • The Employee should raise the
   grievance in writing
 • The Employer should hold a meeting and
   investigate the complaint
 • The Employee can bring a companion
 • The Employee has the right of appeal
Areas of Uncertainty


  • Involving Employees in developing procedures
  • Only Employees are covered
  • Handling grievances during a disciplinary
    procedure
  • Do the parties have to try mediation?
  • Time limit for bringing claims is much shorter
  • Uncertainty over compensation
Practical Steps for Employers


  • Involve Employees and/or their reps in
    developing any workplace procedures
  • Encourage managers to resolve issues pro-
    actively
  • Train managers to handle grievances
    effectively
  • Keep written records
  • Communicate decisions effectively and
    promptly setting out reasons
Overview of dealing with the employment
aspects of the Recession




             YASMIN AWAN
Overview of dealing with the employment
aspects of the Recession


   “Jobless numbers show smallest
        rise since spring 2008”
    (News headline 11 November 2009
  • The Office for National Statistics (ONS) said
    unemployment defied expectations with the
    jobless total rising by a smaller than expected
    30,000 to 2.46 million. That was the lowest
    increase since May last year.
• The ONS said that numbers in work actually
  rose by 6,000 for the first time since summer
  last year. The number of full-time jobs dropped
  by 80,000, a fall offset by a 86,000 rise in the
  number of people in part-time work to a record
  high of 7.7 million. A 40% rise since last year.
Overview of dealing with the employment
aspects of the Recession



  • Redundancy 1
    Introduction
     What is redundancy?

     Redundancy is defined as:
        An employee is dismissed if his dismissal
        is wholly or mainly attributable to:
   (a) the fact that the employer has ceased
    or intends to cease
      (i)  to carry on the business for the
       purposes of which the employee was
       employed by him; or
      (ii) to carry on that business in the place
       where the employee was employed; or
   (b) the requirements of that business –
      (i)  for employees to carry out work of a
       particular kind; or
      (ii) for employees to carry out work of a
       particular kind in the place where the
       employee was employed
     have ceased or diminished or are expected
       to cease or diminish.
Overview of dealing with the employment
aspects of the Recession



  • Redundancy 2
    Redundancy Selection
        Non-Compulsory

          Voluntary redundancy
          Early retirement
 Compulsory

   Pool of redundancies
   Redundancy selection criteria –
    objective, non-discriminatory and
    applied consistently
   Automatically unfair selection criteria.
Overview of dealing with the employment
aspects of the Recession



  • Redundancy 3
    The Redundancy Consultation Period
        Collective consultation
        Individual consultation
Overview of dealing with the employment
aspects of the Recession



  • Redundancy 4
       Employee entitlements on redundancy
         Redundancy     Payments
         Notice

         Holiday

         Alternative   employment
              period
         Trial

         Time off
Overview of dealing with the employment
aspects of the Recession


  • Redundancy 5
    Practical help for employees
     Advise employees to contact local jobcentre
      for vacancies or training
     Outplacement counselling

     Contact local employers who may have
      vacancies
     Guidance on CV’s and interview techniques

     Redeployment if business picks up
Overview of dealing with the employment
aspects of the Recession


  • Redundancy 6
    Redundancy pitfalls
    Potential claims
     Unfair redundancy selection
     Failure to offer suitable alternative work

     Failure to properly consult
Practical considerations
 Cost

 Detrimental long term effects

 Market reputation

 Demoralising for the workforce
Overview of dealing with the employment
aspects of the Recession


  •    Redundancy 7
        Redundancy Checklist
        1. Are redundancies necessary?

        2. How many redundancies are there to
           be? More than 20 within 90 days or
           less? (Include voluntary)
        3. Elect employee representatives.

        4. Decide upon appropriate selection
           criteria/pools for selection and the
           selection panel.
5.   Commence consultation with employee
     representatives.
6.   General announcement to workforce
     (invite voluntary redundancies)
7.   Notify Department of Employment
8.   First individual consultation meeting.
     Discuss alternative employment
     (letters).
9.    Apply the selection criteria.
10.   Further individual consultation
      meetings.
11.   Confirm redundancies in writing –
      redundancy payment, notice, time off to
      look for jobs/training. Consider help for
      employees – right of appeal.
Overview of dealing with the employment
aspects of the Recession



  • Avoiding Redundancies – the
    Commercial reality
Overview of dealing with the employment
aspects of the Recession


  Top 10 Alternatives to Redundancy

  1.   Improving Efficiency
  2.   Cutting Absences
  3.   Outsourcing/Selling part of business
  4.   Pay Deferral Schemes
  5.   Reducing Hours
Overview of dealing with the employment
aspects of the Recession



  6. Overtime Bans
  7. Reducing Pay
  8. Reducing Headcount
  9. Temporary Stoppages
  10. Recruitment Freezes
  Potential Claims
Holidays and Sickness




         LIZZIE LEAVER
Holidays and Sickness



 • Introduction
Holidays and Sickness


 • Case 1: Stringer & Others v HM
   Revenue & Customs [2009] IRLR 214,
   ECJ
 • The Facts
 • The Decision
 • The Implications
Holidays and Sickness


 • Case 2: HM Revenue & Customs v
   Stringer and others [2009] IRLR 67,HL
 • The Facts
 • The Decision
 • The Implications
Holidays and Sickness


 • Case 3: Francisco Vicente Pereda v
   Madrid Moviidad SA C-277/08;
   10/09/09
 • The facts
 • The decision
 • The implications

								
To top