Taylors Solicitors

| Bookmark | Help | Print

Call us on 01254 297900 


Oliver McCannn   


Employers Update - December 2010

Welcome to the last Employ edition for 2010.

How quickly time passes by! Rather than the usual round up of HR and employment law developments over the past month we take a look at the five most important developments over the past year and the five things to watch out for in 2011.

If you have any queries or wish to have a chat about Taylors Employment Services please contact Oliver McCann on 0844 8000 263 or oliver.mccann@taylors.co.uk.

In the meantime best wishes for Christmas and 2011.

Oliver McCann - Partner and Head of Employment
James Bellamy - Employment Solicitor

Tel: 0844 8000 263
Email: oliver.mccann@taylors.co.uk


In This Edition:

5 Important Developments in 2010
1. Implementation of Equality Act 2010
2. Scrapping the Default Retirement Age of 65
3. Legal Representation at Internal Disciplinary Hearings
4. Variation to Employees T & C’s
5. Ongoing Holiday Saga Finally Determined?

5 developments to look out for in 2011
1. Government consultation on implementing a contractual retirement age
3. Whether employees can claim ongoing loss of earnings as a breach of contract claim
4. Paternity leave changes
5. Agency workers to be afforded equal protection

5 Important Developments in 2010


1. Implementation of Equality Act 2010

Introduced with effect 1st October 2010 it is still early day. The intention was to bring under one umbrella all discrimination legislation – that has worked but we now have an enormous piece of legislation which at times is hard to navigate through.

All though much of the Equality Act simply retains what was previously in place there are new developments, some which are in now and some which are to come in place next year or later on.

Discrimination by perception and association are now formally set out in legislation for all protected characteristics.

The Equality Act has also redefined the comparator in discrimination claims to the pre Malcolm position. This means that a relevant comparator now is someone with the same or similar disability but who has not done the act in question. i.e. they have not been absent due to an alleged disability. One addition and glimmer of hope for employers is that the treatment may be objectively justified although there is little guidance what will constitute objective justification but presumably it will be akin to what reasonable adjustments could be made if any.

Pre employment medical questionnaires are now unlawful until the offer stage and as such many employers across the Country will have to modify their recruitment process. There are exceptions to the rule but extreme care needs to be taken in this regard.

2. Scrapping the Default Retirement Age of 65

Following the long awaited decision in Heydey the Government decided recently to abolish with a default retirement age in the UK with effect 1st October 2011 with the retirement procedures being abolished with effect 6th April 2011. It will be unlawful to retire anyone after the 1st October (at any age) unless you can objectively justify such a decision.

What is clear however is that employers can adopt their own contractual retirement age but you must ensure that you can objectively justify such a policy. The decision this year in Seldon v Clarkson, Wright and Jakes and also in a ECJ case of Rosenblat v Ollerking both provide useful guidance as to what may constitute objective justification for a retirement decision.

3. Legal Representation at Internal Disciplinary Hearings

There has been a string of recent cases on this point. The first case which granted an employee this right was Kulkarni v Milton Keynes Hospital but this appeared to limit its scope to public sector employers. More recent cases of R v X School & Hameed v Central Manchester University Hospitals Foundation Trust have extended its scope to private sector employers.

What employers should however bear in mind is that employees will only be entitled to legal representation if the consequences of any disciplinary sanction go beyond possible dismissal. i.e. that wider implications such as that person being prevented from working within their profession may result as a finding of guilt. e.g. a professional such as a solicitor being prevented from practising due to the fact that they are barred from continued membership to the profession.

The case of Kirk v Middlesborough Borough Council 2010 distinguished the previous cases and limited the scope of the right to legal representation to situations when future employment opportunities are affected. Kirk (who was a social worker) involved an allegation that a mother had allowed a man into her home who had previously been accused of sexual abuse against her son which placed her partners daughter at risk. The disciplinary proceedings were brought by her employer for a failure to inform them of the investigation into the allegation and as such that in itself could not have led to a barring order from the ISA and did not fall within the previous cases for exercising the right to legal representation. The court also pointed out that this principle should not apply to private law employment matters with a standalone disciplinary issue.

4. Variation to Employees T & C’s

The Bateman v ASDA case appeared to have opened the way for employers to unilaterally change employees terms and conditions of employment. This hasn't however given employers a carte blanche authority to do so and employers must still take care to ensure they have a contractual right to do so and that the change can be justified on business grounds.

However it does act as an important reminder to build flexibility in to your employment documents particularly in relation to pay, hours and place of work.

5. Ongoing Holiday Saga Finally Determined?

We all thought that this issue would finally be resolved in the case of Stringer however due to the key issue being conceded it fell some way short of providing all the answers. What we now know from this and the subsequent cases of Pereda and Shah is that:

a. workers can carry over leave from one year to the next if they have been prevented from claiming leave due to sickness
b. Workers can reclaim leave already booked and possibly taken if they have fallen ill during or just before it
c. Outstanding holiday pay can be claimed as an unlawful deduction of wages claim

5 developments to look out for in 2011


1. Government Consultation on Implementing a Contractual Retirement Age

As above we are all waiting for clearer guidance on what the options are for employers if the government, as expected, abolishes the default retirement age completely.

The government’s response to consultation is due imminently so keep your eye out for it as it is also anticipate that they will give guidance on both contractual retirement policies and running an organisation without a retirement age.

 Despite the fact that employers can objectively justify a contractual retirement age this is still a risky line to take and careful consideration needs to be given to the organisations policy in this regard and no later then end of March 2011.

Employers may prefer to use conduct or capability issues to remove employees in that age bracket which in turn does not lead to a harmonious end to what may have been a long a good natured working relationship. Some form of guidance is therefore eagerly awaited by all


Whether the circumvention of TUPE under Reg 8(7) (which covers transfers arising form a transferor subject to insolvency proceedings with a view to liquidation of assets) following Oakland v Wellswood 2010 will remain good law.

We are awaiting the decision of the EAT in a number of cases that are putting the decision of Oakland to the test. At the moment, under Oakland, employees of a company in administration may not be afforded the protection of TUPE even if the business is purchased by a third party and those employees transfer across where it is held the administration process was with a view to liquidation of assets such that Regulation 8(7) TUPE applies which in turn disapplies automatic transfer of contracts of employment and liability for pre transfer dismissals.

BIS has always stated before in guidance to insolvency practitioners that an administration can never fall under Regulation 8(7) and hence the reason Oakland was deemed ground breaking law as it turned on its head previously accepted practice that sales of businesses from administrations would always be caught by TUPE.

It is widely anticipated that the current cases proceeding through the EAT will disagree with Oakland which will mean companies in administration being less attractive to potential purchasers. It is uncertain as to the extent they will disagree but assuming they do then it maybe necessary to wait further for on those cases to proceed to the Court of Appeal for a binding decision for greater clarity.

3. Whether Employees Can Claim Ongoing Loss of Earnings as a Breach of Contract Claim

Edwards v Chesterfield. This is a case in which an employee is claiming ongoing loss of earnings for what is a breach of contract claim whereby ordinarily such claims would be limited to the value of earnings during any contractual notice period.

Here a doctor was dismissed summarily, allegedly in breach of the NHS Trusts contractual disciplinary procedure. The Doctor alleges had the Trust complied with its contractual obligations under the disciplinary process he would not have been dismissed and as such pursues £4m compensation for loss of earnings arising from the breach of contract. The Trust argue that any claim should be limited to the contractual notice period as the Trust could have lawfully terminated the contract by simply giving such notice without further liability.

Although the doctor may struggle on causation issues ie proving that the breach of contract has led to the decision to dismiss and ultimately his loss this case demonstrates that employers are exposed if they breach express terms of the contract of employment such as an express contractual disciplinary or grievance procedure. Careful review of your internal procedures should be undertaken.

4. Paternity Leave Changes

Expectant fathers will soon be entitled to take additional Paternity leave of anything from 2 weeks up to 6 months (the first 2 weeks being Ordinary Paternity leave) if the mother decides to go back to work early.

This was originally withdrawn by the Labour government when the global recession kicked in but has now been reinstated and will take effect for those children born after 3rd April 2011. Watch this space as the European Union continue to try and impose further onerous obligations on member states relating to maternity pay, maternity leave and paternity leave although member states recently rejected proposals to increase the right to full pay during maternity leave to 20 weeks.

5. Agency Workers to be Afforded Equal Protection

The benefits afforded to employers of employing agency staff may now be over. Under the new regulations, which come into force on 1st October 2011, agency workers are to be afforded (after a period of 12 weeks continuous work) equal treatment in relation to terms and conditions of employment as permanent employees.

It remains to be seen how this will work out and whether employers will still bear the additional cost to have the benefit of a flexible workforce to meet fluctuating demands. Taylors will continue to keep you informed of development on this matter throughout 2011.

Copyright 2006 - 2010 Taylors Solicitors

» Print          »

Home  |  Services  |  News  |  People  |  About  |  Contact
Blackburn: Rawlings House, Exchange Street, Blackburn, BB1 7JN.
Tel: 01254 297900 / Fax: 01254 297916
Manchester: Ninth Floor, 80 Mosley Street, Manchester, M2 3FX.
Tel: 0161 200 5690 / Fax: 0161 200 5699
©Taylors Solicitors  |  Website Terms  |  Data Protection  |  Website Design  |  Sitemap
Regulated by The Law Society