This year is set to be as helter skelter as ever in terms of employment law developments. Sarah Lamont dusts off her crystal ball and looks at what may come to pass in 2011, in respect of new legislation, guidance and cases on appeal.

Bribery Act update – February 2011

On 1 February 2011, the government announced that the Bribery Act will not be brought into force, as originally proposed, in April 2011.  The Bribery Act will come into force 3 months after the publication of the government’s guidance on ‘adequate procedures to prevent bribery’.  Consultation on this guidance closed last November, but the government has not indicated when the final guidance will be published.  In the meantime, for further information on the Act and why it is important for HR, please see our article by David Widdowson, Why does HR need to know about bribery
 

January

A review of the vetting and barring scheme was launched in October 2010, with a view to the scheme being ‘remodelled’, and the outcome is expected to be published this month.

 

February

From 1 February 2011

  • the maximum compensatory award will rise to £68,400
  • the maximum amount of a week’s pay to rise to £400.

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March

30 March 2011 is the last day on which a valid ‘notice of retirement’ may be issued under the current default retirement regime (see below for more details).

 

April

  • From 11 April 2011, Statutory Maternity Pay, Statutory Paternity Pay and Statutory Adoption Pay and Maternity Allowance will rise to £128.73 per week.
  • The default retirement age (and all associated procedures) will be phased out, starting in April. The default retirement age will be abolished completely by 1 October 2011, and ‘retirement’ will no longer be one of the ‘potentially fair reasons’ for dismissal.   Please see this month’s round-up, plus August’s edition of Employment Eye for more information.
  • The ‘right to request flexible working’ regime will be extended to all employees with children up to the age of 18.
  • Guidance on the definition of ‘disability’, to reflect the Equality Act and the removal of the list of ‘capacities’ in the DDA, is expected imminently and will come into force this month. 
  • The new paternity leave regulations will come into force this month.  These were ‘under review’ but the government has now confirmed that they are going ahead.  Subject to satisfying eligibility requirements, fathers of children due, or born, after 3 April 2011 will be able to take up to 26 weeks Additional Paternity Leave, in addition to the current 2 weeks paternity leave. 
  • Most of the Equality Act 2010 came into force last October, but two key provisions were delayed until April 2011:
    • positive action in recruitment and promotion - where having a protected characteristic can be a deciding factor between two equally well qualified candidates, if the chosen candidate has a protected characteristic that is under represented in the employing organisation (the government has produced guidance on this); and
    • the single public sector equality duty – the current public sector duty to promote equality will be revised and will become a single public sector equality duty (please see this month’s round-up for more information). 

Note that the ‘socio-economic’ duty under the Equality Act 2010 will not now be brought into force, and we are awaiting further information on the fate of the Act’s ‘dual discrimination’ provisions.  If you would like a full briefing note on the Equality Act 2010, please click here.

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  • The case R (on the application of G) v X School and others will be heard by the Supreme Court in April 2011.   This is an appeal against the Court of Appeal's decision that a teaching assistant was entitled to legal representation during disciplinary proceedings for sexual misconduct with a child.  The appeal will consider the question of when Article 6 of the European Convention on Human Rights (the right to a fair hearing) is engaged in respect of disciplinary hearings.  Please see Julian Hoskin’s article, Human rights and disciplinary hearings for a summary of the Court of Appeal case, and an overview of the case law in respect of the right to legal representation at disciplinary hearings.
  • Also being heard by the Supreme Court in April is the case of Parkwood Leisure v Alemo-Herron (please see the February 2010 edition of Employment Eye for a summary).  This is an appeal against the Court of Appeal's decision that regulation 5(1) of TUPE 1981 should be given a ‘static’, rather than ‘dynamic’ interpretation, so that employers are not bound by collective agreements negotiated post-transfer. 
  • The extension of the ‘right to request time to train’ will take effect from 6 April 2011, so that this right will apply to all employers (currently they only apply to employers with over 250 employees).

 

June

This month, the Supreme Court will hear an appeal against the Court of Appeal’s decision in Chesterfield Royal Hospitals NHS Trust v Edwards.  This was the case that established that an employee could, in principle, recover damages for loss of future employment prospects when, as the result of breach of express contractual terms as to the conduct of disciplinary proceedings, findings of misconduct were made (which would not have been made had the disciplinary procedure been properly observed) resulting in dismissal.  This case is due to be heard on 22 June 2011.

 

July

On 12 July, the Employment Appeal Tribunal will hear Korashi v Abertawe Bro Morgannwg University NHS Trust, an employee's appeal against a tribunal's decision that, for a whistleblowing claim to succeed, all (and not just some) of the relevant allegations made by the employee had to be made in good faith.

 

October

  • From 1 October 2011, agency workers will be entitled to claim ‘equal treatment’ to employees in respect of a limited number of employment rights (pay, working time, and time off), after 12 weeks’ engagement by the same organisation.
  • The default retirement age, and all associated procedures, will be fully repealed by 30 October (see ‘April’ above for details).

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