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

1. Clarkson Wright and Jakes LLP Valiant House 12 Knoll Rise Orpington, Kent, BR6 OPG. 01689 887887 EMPLOYMENT LAW UPDATE FOR HR MANAGERS + THE OCTOBER CHANGES AND THE LATEST CASES

2. Employment Law Update Employment Law Seminar 24 November 2009

3. April and October changes and forthcoming legislation PRITTI BAJARIA

4. 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

5. APRIL 2009 • Repeal of Statutory Dispute Resolution Procedures • Changes to National Minimum Wage enforcement

6. APRIL 2009 • Extension of right to request flexible working

7. OCTOBER 2009 • Increase to maximum limit of a weeks’ pay • Changes to National Minimum Wage • Increase to rates • Prohibition on tips

8. OCTOBER 2009 • Supreme Court Rules 2009 came into force • Vetting and Barring Scheme for safeguarding vulnerable adults and children

9. FORTHCOMING LEGISLATION • The Equality Bill • Review of Default Retirement Age

10. FORTHCOMING LEGISLATION • Additional Paternity Leave and Maternity Pay • Agency Workers Right to Equal Treatment

11. Recent case law review WILLIAM ADDIS

12. Recent case law review Introduction

13. 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

14. 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

15. 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

16. Recent case law review The Top Five

17. Recent case law review Case 1: Retirement of employees  • The Heyday case • 2009 EWHC 2336, 25 September 2009 • The facts • The decision • The implications

18. Recent case law review Case 2: Recruitment of employees • Cheltenham Borough Council v Laird • 2009 EWHC • The facts  • The decision  • The implications

19. 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

20. Recent case law review Case 4: Insolvent businesses and employees • Oakland v Wellswood (Yorkshire) Ltd • The facts •  The decision •  The implications

21. 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

22. Recent case law review Conclusions

23. Disciplinary & Grievance Procedures and the ACAS Code following the repeal of the statutory procedures ROSA BRENNAN

24. 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

25. DISCIPLINARY PROCEDUREWhat 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

26. 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%

27. 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

28. Areas of Uncertainty • Involving Employees in developing procedures • Evidence at disciplinary hearings • Only claims by Employees are affected • Uncertainty over compensation

29. 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

30. GRIEVANCES • Why is it important to follow the ACAS Code? • It can avoid a potential claim • It can affect the level of compensation

31. How has the law changed? • Best practice advice should not change significantly • Rules on admissibility of claims, time limits and compensation have changed

32. 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

33. 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

34. 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

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

36. 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.

37. 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.

38. 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:

39. (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

40. (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.

41. Overview of dealing with the employment aspects of the Recession • Redundancy 2 Redundancy Selection • Non-Compulsory • Voluntary redundancy • Early retirement

42. Compulsory • Pool of redundancies • Redundancy selection criteria – objective, non-discriminatory and applied consistently • Automatically unfair selection criteria.

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

44. Overview of dealing with the employment aspects of the Recession • Redundancy 4 • Employee entitlements on redundancy • Redundancy Payments • Notice • Holiday • Alternative employment • Trial period • Time off

45. 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

46. 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

47. Practical considerations • Cost • Detrimental long term effects • Market reputation • Demoralising for the workforce

48. Overview of dealing with the employment aspects of the Recession • Redundancy 7 • Redundancy Checklist • Are redundancies necessary? • How many redundancies are there to be? More than 20 within 90 days or less? (Include voluntary) • Elect employee representatives. • Decide upon appropriate selection criteria/pools for selection and the selection panel.

49. Commence consultation with employee representatives. • General announcement to workforce (invite voluntary redundancies) • Notify Department of Employment • First individual consultation meeting. Discuss alternative employment (letters).

50. Apply the selection criteria. • Further individual consultation meetings. • Confirm redundancies in writing – redundancy payment, notice, time off to look for jobs/training. Consider help for employees – right of appeal.