UK: International Employment Update: New Legislation (UK) - February 2010

Last Updated: 25 March 2010
Article by Crystal Miles

Originally published February 2010

Draft Immigration Bill Published

On 12 November 2009, the draft Immigration Bill was published. The aim of the bill is to "simplify and consolidate" immigration law by replacing the current five categories of leave that may be applied for by those seeking entry to the UK with one "immigration permission". The new category is intended to complement the Points-Based System.

Bankers' Pay To Be Regulated

The Financial Services Bill was introduced in the House of Commons on 19 November 2009. The Bill will require the Financial Services Authority to regulate financial sector remuneration and will give the FSA the power to make rules to prohibit specified types of remuneration in the interest of securing effective risk management or compliance with international standards; to make contractual terms void if they breach such a prohibition; and provide for the clawback of payments made under void terms.

Final Draft Regulations For Additional Paternity Leave Published

The Government has published six sets of draft regulations to facilitate the introduction of additional paternity leave and pay, following an eight week consultation period that closed on 20 November 2009. The Regulations will come into force on 6 April 2010 and will apply to parents of babies due on or after 3 April 2011 and for adoptive parents who are notified of having been matched with a child on or after 3 April 2011.

New ACAS Code Of Practice On Time Off For Trade Union Duties And Activities

The new ACAS Code, which came into effect under The Employment Protection Code of Practice (Time Off for Trade Union Duties and Activities) Order 2009, replaces the previous guidance issued in 2003 and came into effect on 1 January 2010.

The Code provides guidance on time-off for union learning representatives. The Code is also accompanied by non-statutory guides on managing time-off for union representatives and non-union employee representatives.

Final Regulations On Pension Scheme Auto-Enrolment

From 1 October 2012, employers will be required to auto-enrol workers into a pension scheme and make minimum contributions. Following a period of consultation, on 12 January 2010 eleven sets of Regulations were laid before Parliament to implement this plan. As the consultation revealed strong views on several aspects of the reforms, there are a number of major amendments to the draft regulations that were provided for the consultation.

In addition, the Department of Work and Pensions has published its formal response to the consultation, and an impact assessment.

The Employment Rights (Revision Of Limits) Order 2009

From 1 February 2010, the maximum compensatory award for unfair dismissal has been reduced from £66,200 to £65,300 because of the drop in the Retail Price Index. The maximum guarantee payment per day has also reduced from £21.50 to £21.20. In most cases involving dismissal, the new figures will apply where the effective date of termination is on or after 1 February 2010.

REPORTED CASE LAW

Grainger Plc And Others v Nicholson - Employment Appeal Tribunal (3 November 2009)

The EAT has upheld an Employment Tribunal's decision that an individual's belief in man-made climate change and the existence of a moral duty to live in a way that mitigates or avoids it is capable of being a 'philosophical belief' under the Employment (Religion or Belief) Regulations 2003. However, tribunals should not take a claimant's professed belief at face value: cross-examination may be required.

In reaching its decision, the EAT provided guidance on the types of belief that will be considered a philosophical belief.

Chagger v Abbey National Plc And Another - Court Of Appeal (13 November 2009)

In this case, which concerned an employee who had been made redundant and had successfully sued for race discrimination, the Court of Appeal considered the assessment of compensation. Of particular note was the decision that in a case involving a discriminatory dismissal, where other employers are unwilling to employ the dismissed employee because he brought discrimination proceedings, the dismissing employer can be held liable for 'stigma' compensation.

Veakins v Kier Islington Ltd - Court Of Appeal (2 December 2009)

The Protection from Harassment Act 1997 has previously been held to be applicable to cases of bullying in the workplace.

The Court of Appeal has now provided guidance on the level of conduct required to amount to harassment, stating that the primary focus should be on whether the conduct is "oppressive and unacceptable", and that the conduct must also be of the type that "would sustain criminal liability".

Ladele v London Borough Of Islington - Court Of Appeal (15 December 2009)

The Court of Appeal has upheld the EAT decision that a registrar who refused to carry out civil partnership ceremonies in accordance with a council's policy was not directly or indirectly discriminated against on the grounds of her religion or belief. The council would have been in breach of its own legal obligations if it had not required the claimant to perform civil partnership duties.

This case demonstrates the delicate balance that has to be made where there is a direct conflict between legislative protection afforded to religion/belief and sexual orientation.

Sahota v Home Office And Pipkin - Employment Appeals Tribunal (15 December 2009)

The EAT has considered the extent of protection from sex discrimination during IVF treatment.

Discrimination on the grounds of pregnancy is automatically discriminatory on the grounds of sex without the need for a male comparator, as pregnancy is a condition only applicable to women. Under the Sex Discrimination Act, a woman who is undergoing IVF treatment is protected from the time a fertilised ova is implanted until two weeks after the implantation fails and the pregnancy ends.

The claimant argued that in cases where a woman is not pregnant, but undergoing IVF treatment, that to subject her to a detriment on the grounds that she is undergoing treatment is direct sex discrimination. Furthermore, the claimant argued that, as in cases of pregnancy, it would be wrong to treat the position of a woman undergoing IVF treatment as comparable with a man undergoing medical treatment.

The EAT held that less favourable treatment of employees who are undergoing IVF treatment, but who aren't pregnant, is not automatically unfair. It also endorsed a prior ECJ decision that a woman undergoing IVF treatment will be protected for an additional limited period of time before implantation (i.e. the time it takes for an ova to be collected, fertilised and immediate implantation). The EAT specifically rejected that such a period applies to a long period between the freezing of a fertilised ova with a view to implanting at a later date.

Standard Life Health Care Limited v Gorman And Others - Court Of Appeal (16 December 2009)

The Court of Appeal has upheld an injunction preventing some sales managers from joining a competitor for the duration of their notice periods in the absence of an express garden leave clause.

Instead, Standard Life was entitled to rely upon a suspension clause, even though this prevented the sales managers who were paid on a commission-only basis, from earning any remuneration. The Court held that an employee's right to work and earn a living is dependant upon them filling their own contractual obligations to the employer. Where an employee breaches an obligation such as the duty of good faith, then a court could release the employer from the obligation to provide them with work.

Lyons v Mitie Security Ltd - Employment Appeals Tribunal (18 January 2010)

The EAT has considered whether a worker has an inalienable right to take their full statutory holiday entitlement granted by Regulation 13 of the Working Time Regulations (the "WTR") during the applicable holiday year.

A worker's right to take holiday is governed partly by the Working Time Regulations 1998 and partly by the contract of employment. In this case, the employee's employment contract had certain restrictions regarding giving notice to his employer to take holiday leave. Towards the end of the employer's holiday year, the employee sought to take his outstanding holiday, but didn't comply with the notice provisions in his contract, and his request was refused as it did not fit in with the employer's staffing patterns.

The EAT held that the WTR did not support the proposition that employers were obliged to ensure workers took all the holiday to which they are entitled, and that a worker's right to statutory holiday was subject to the notice provisions set out in regulation 15 WTR (as varied by contract). If notice provisions are operated by the employer correctly (i.e. in a manner that is not unreasonable, arbitrary or capricious so as to deny any lawfully requested entitlement) then an employee can lose the right to leave that has not been taken at the end of the leave year.

R (on the application of G) v X School and others - Court of Appeal (20 January 2010)

The claimant was dismissed from his position as a school teaching assistant, after a disciplinary hearing, for sexual misconduct with a child. He challenged the decision by the school governors not to allow him legal representation at the disciplinary hearing.

Article 6 of the European Convention on Human Rights provides that "everyone is entitled to a fair and public hearing in relation to the determination of civil rights or obligations or criminal charges".

The Court of Appeal considered whether the disciplinary proceedings constituted a determinant of the claimant's right to practise his profession, thereby engaging Article 6, and if, in the circumstances, Article 6 required that the claimant be allowed legal representation.

The Court of Appeal held that the disciplinary proceedings were determinative of a civil right since they had substantial influence or effect on the claimant's right to practise his profession, and that what was important was whether there was a close connection between the disciplinary proceedings and the decision to bar someone. The Court also held that the level of procedural protection under Article 6 depends on what is at stake, and that in this case the determination of civil right would require legal representation.

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