Thursday, 27 December 2012

New limits - this comes around quickly!

The new gross weekly pay limit and compensation cap, which will come into force on 1 February 2013, were announced last week.

The new gross weekly limit will be £450 (up from £430) and the new compensation cap will be £74,200 (up from £72,300).

The weekly pay limit applies to calculations of:
Statutory redundancy pay
Basic Award
Right to written particulars of employment
Right to be accompanied at a disciplinary hearing
Right to request flexible working
Award for failure by employer to comply with TUPE regulations
The limit does NOT apply to:
Rights during suspension
Right to written reasons for dismissal
in which cases the employee's actual gross weekly pay should be used in the calculation.

Monday, 22 October 2012

Rise above your fall: What to do if you have an accident at your place of work

Having an accident at work claim can be stressful for many reasons. You likely depend on your job as a steady source of income, and you can’t work if you’re injured. However, there are precautions you can take to prevent accidents, as well as information that will help you in the case of a serious accident. Are you wondering how you can rise above your accident woes? Just keep reading.

Before an accident happens

There are certain steps you can take as an employee to ensure your own safety at work, regardless of what industry you work in. First, if your company has a safety policy, it is a good idea to make sure that you know it well. If you have any questions or additional safety concerns, don’t hesitate to bring it up to your employer. There  could safety hazards that you encounter in the process of doing your job that he or she hasn’t considered.

You should also keep in mind the nature of your work when you consider how to prevent accidents. A construction worker and an office assistant, for example, face different dangers over the course of a normal work day, but a little foresight and caution can help each stay safe.

What you should expect from your employer

By law, your employer is required to have insurance that would cover any kind of accident claim brought against the company by current or former employees. Employers are also required to document any accidents that happen on the job. If you are involved in an accident, even if it is a small, seemingly insignificant incident, you should take care to make sure that your employer records it. This record can work in your favour in the instance that you experience symptoms that stem from an earlier accident because it can play a part in filing a claim for compensation.

Taking legal action

No matter who your employer is, you are guaranteed statutory sick pay if you meet the minimum requirements. Some employers also offer additional sick pay, though it isn’t legally obligated. And, if you suffer medical injuries from an accident that your employer is liable for, you can also seek compensation from the company. In order to do this, you will need to seek independent legal counsel.

Ultimately, the best way to sort out any possible accident claims is to work with your employer to stop an accident before it happens. And if you find yourself in need of legal counsel to file an accident claim, you should try to work with your employer afterwards to make a plan so that it never happens again.

Guest blog post on behalf of Irwin Mitchell

Thursday, 18 October 2012

Can I chose my own lawyer under legal expense insurance?

As most of you know one of the staple ways which many employment cases are funded are via home contents insurance policies. Under most of these there is a clause which allows you to be funded right from the start to the end of your employment case, subject to a financial limit and subject to an employment lawyer assessing your claim (usually at over 55%).

There are certain elephant traps along the way:

Firstly look out for who assesses your merits, what are their credentials?

Secondly, don't be fobbed off easily if you disagree get another opinion from a Barrister

Thirdly, some policies suggest that you cannot chose your own lawyer. This is plainly wrong if the Financial Ombudsman is to be believed.

You can chose your own employment lawyer in 3 sets of circumstance:

1) It says so under your policy

2) Their is a conflict of interest

3) If you have started proceedings i.e if you chosen lawyer has submitted your ET1.

Please see :

The Ombudsman's site 

and on that site :

'(regulation 6 of the Insurance Companies (Legal Expenses Insurance) Regulations 1990 [SI 1159]) allows policyholders to choose their own solicitors.'

'These regulations are wide enough to include legal proceedings pursued and defended in tribunals – for example, employment tribunals – as well as proceedings in courts. '

Wednesday, 17 October 2012

Removing provisions from the Equality Act will not help employers, says Law Society

 A thought provoking defence of the Equality Act  from the Law Society:

 The Law Society has warned that removing certain provisions from the Equality Act will not help employers. The warning comes after the government published a series of amendments to the Enterprise and Regulatory Reform Bill this week.

The amendments, to be considered in the report stage of the Bill, abolish the Equality Act provisions on third party harassment (which make an employer liable for failing to act where their employee has been harassed by a third party) and the use of claimant questionnaires in discrimination claims.

The Law Society has highlighted the fact that these provisions can in fact be beneficial to employers as well as employees.

Under section 40 of the Equality Act an employer is not held responsible for the third party's actions in themselves, but for failing to act where they have been told of the harassment; when it has happened on at least two previous occasions; and where the employer has not taken such steps as would have been reasonably practicable to prevent the harassment.

 "Harassment is unacceptable in any workplace," says Chair of the Law Society Employment Law Committee Angharad Harris. "The benefit of the third party harassment provision was that it has encouraged best practice amongst employers and this in turn helps to reduce potential incidents of harassment at work."

"The questionnaire procedure can also help employers because it encourages an employee to ask all of their questions at once, rather than through a series of informal questions which make it harder for an employer than if they had been raised all at once.

 "Questionnaires also discourage those cases that have no merit."

  The Law Society says that business concerns could have been addressed through better guidance on how to deal with third party harassment and how to answer questionnaires.

Angharad Harris added: "Most employers want to do the right thing, and want clear advice to understand how employment law affects them."

 When in doubt, the Law Society advises employers to get in touch with their local solicitor.

Tuesday, 7 August 2012

Courts says 'work for your benefit' scheme not slave labour

R (on behalf of Reilly & Wilson) v Department of Work and Pensions saw Article 4 ECHR and the following question considered: Is it slave labour and therefore unlawful to force an individual in receipt of Job Seekers Allowance to participate in a 'work for your benefit' scheme?

Miss Reilly was a geology graduate who was required to work in Poundland for two weeks and Mr Wilson was a HGV driver who was required to work for an organisation delivering refurbished furniture to the needy in the community for 30 hours per week for a period of 26 weeks.. Both were required to do this if they were to receive their benefits.

Both Claimants claimed this amounted to a breach of Article 4. The outcome was that  such schemes could not be said to amount to 'slavery' or 'forced labour'.

Reduction in Judges' salaries leads to judicial retention warning

Reduction in Judges' salaries leads to judicial retention warning

The combination of a three-year pay freeze and pension cuts “is likely to cause judicial retention and recruitment problems,” the Lord Chief Justice has warned as a pay freeze has reduced judges' salaries by up to 18 per cent.

The LCJ said in his report for the period January 2010 to June 2012 that the Senior Salaries Review Body (SSRB) had calculated that the pay of circuit judges had been cut by 15.9 per cent.

The salaries of district judges had fallen by 16.5 per cent, the report found, High Court judges by 17.1 per cent and lord justices of appeal by 18.4 per cent.

Judges’ pensions were assessed by the SSRB as amounting to 34 per cent of their total reward.

“In relation to pensions, as elsewhere in the public sector, a contribution liability has been imposed, further reducing take-home pay,” Lord Judge said.

“The extent to which the government seeks to reduce the annual accrual value of benefits under the judicial pension schemes is unknown. Whatever it is, it will reduce the total reward of a judge still further.”

 Lord Judge said in the report, published last week, that the “morale, recruitment and retention of judges of the highest calibre depends in part on the adequacy of their financial reward.”

He said the SSRB had said it was increasingly concerned about the morale and motivation of its ‘remit groups’ because of the deterioration in their terms and conditions.

“This observation is self-explanatory,” Lord Judge said. “The cumulative effect is likely to cause judicial recruitment and retention problems.”

In The Solicitor's Journal he said:

“Consequent constraints have affected and will continue to affect every aspect of national life, and the administration of justice is not, and has not, been immunised from the economic crisis.”

Monday, 30 July 2012

Sick worker who could not take 4 weeks holiday was not required to ask

In NHS Leeds v Larner the Court of Appeal has held that a worker who was unable to take four weeks’ annual leave due to sickness did not have to make a request to carry the untaken leave over into the next leave year in order to receive a payment in lieu of it on termination of employment. 
In recent cases it has been suggested that a Cliamnat was not entitled to payment in lieu if they had not requested the leave before the end of the leave year. This too was the argument submitted by NHS Leeds but rejected by the courts.
The European Court of Justice’s decision in Pereda v Madrid Movilidad SAestablished that a worker who is on sick leave during a period of previously scheduled annual leave has the right to take that leave at another time. 'Pereda' was applied to the instant case, L had not had the opportunity during the leave year 2009/10 to take her annual leave. L was thus entitled to carry over her leave entitlement under Reg 13 WTR to the following year without having to make a formal request. The right to be paid for that annual leave crystallised on the termination of her employment. She was therefore entitled to be paid for the annual leave which she had not been able to take in the leave year 2009/10. NHS Leeds appealed again.

Sunday, 22 July 2012

ACAS issues Olympics guidance for employers

ACAS issues Olympics guidance for employers
ACAS issues Olympics guidance for employers
The Advisory, Conciliation and Arbitration Service (ACAS) has issued guidance for employers on some of the issues that might arise in connection with the London 2012 Olympic Games, which commence on 27 July. Questiions such as how do you avoid disruption? are broached.
They say on a very useful website:
Everyone is working together to make the Olympic and Paralympic Games a great success. Employers should now be considering more flexible working arrangements, how they might minimise potential disruption and manage staff expectations to ensure business runs smoothly .
Employees are split into volunteers, spectators and those watching TV from home - more.

Wednesday, 11 July 2012

Part-time judges should receive pensions, Supreme Court rules

UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’. The Supreme Court has followed the invitation from Luxembourg to consider part-time judges as 'workers'.

UK regulations on the rights of part-time workers, which implement the EU’s part-time workers directive, currently exclude part-time judges because they are ‘office holders’. In March, the European Court of Justice said in Case C-393/10 O’Brien v Ministry of Justice that such exclusion would only be lawful if the relationship between judges and the Ministry of Justice was “by its nature substantially different from that between employers and their employees falling under the category of workers”.
Holding judicial office was “insufficient in itself” to exclude judges from the protection in the directive, the court went on, as it proceeded to list the factors the Supreme Court should consider when assessing whether the exclusion could be justified. Just because part-time judges and recorders retained the opportunity to practise as barristers didn’t mean they weren’t “in a comparable situation” to full-time judges, the court found, as they performed “essentially the same activity”.
The case was brought by Dermod O’Brien QC, who sat as a recorder for 27 years and was refused a pension when he retired in 2005.

The Supreme Court has decided not to remit the case to the employment tribunal and consider remaining points of fact at a further hearing on the appeal on 21 November. The Justices agreed that this was because there are no “significant disputed issues of fact to be determined” .

Friday, 22 June 2012

Lawyers trade blows with MPs over ACAS conciliation scheme today

A panel of emplyment lawyers have traded blows with MPs today over controversial plans to introduce a new formulaic scheme involving, ACAS forms and prescribed deadlines.

Early compulsory conciliation, as proposed in the Enterprise and Regulatory Bill, will not ease the burden on tribunals or make the resolution of employment disputes easier, a group of MPs heard this morning.
Firstly, a panel of employment experts were keen to contradict the assertion in the bill that that employment claims were rising.

John Morris, senior partner at Carlisle firm Burnetts and part-time employment judge since 2000, said this was not supported by evidence. Statistics provided at a recent meeting with ACAS and the Tribunals Service showed that the number of tribunals had fallen year on year, except for multiple claims, equal pay and airline disputes. The other two employment law specialists on the panel, Stephen Miller, of McRoberts, and Simpson Millar’s Joy Drummond, agreed.

Responding to the suggestion by Iain Wright, Labour MP for Hartlepool, that “everybody seemed to agree that early conciliation was a good idea”, Drummond said the difficulty was not so much on the principle – including making the step mandatory – but in the method proposed in the bill. As currently drafted, she said, the proposed rules were “unnecessary complicated, would lead to more litigation, more costs and management time for employers, not to mention placing additional hurdles in front of claimants with a valid claim”.
Drummond said the new rules would replace the current process involving one form within one time limit, which the tribunal sends to ACAS for possible conciliation, with two forms and two different time limits. “I can see all sorts of problems with that, both evidential and legal,” she commented.
She told MPs that the now-repealed and much-maligned disciplinary and grievance procedures that had to be followed before a claim could be brought to a tribunal and generated satellite litigation, would “look like a picnic” in comparison.

The panel of experts agreed with Andrew Bridgen, Conservative MP for West Leicestershire, that the tribunal procedure had become more complex, but ascribed this to the fact that the law had become more complicated.
She accepted that small businesses had particular problems, “but in my experience the people who are most in needs of basic employment rights are often the most low paid, and they tend to be employed by small businesses”.

“Small businesses are not always angels,” she went on. “As an employer you have responsibilities – yes, that has to be balanced against being able to run a business and to hire people, but one of my fears with this bill is that in trying to encourage small businesses to employ it will lay traps for unsuspecting employers.”
Instead, she asked: “Is it not more responsible for the government to educate businesses about the traps and how they should behave rather than participate in and legislate on the basis of a myth?”
Drummond also criticised an amendment tabled earlier this week on protected offers and settlement agreements, saying it contained major flaws: their narrow scope – unfair dismissal – and the introduction of a test of ‘improper’ action for which there was no definition in employment law.

Julian Smith, Conservative MP for Skipton and Ripon, said he felt as if he were “part of a Grimms fairytale with the employers being cast as the big bad wolf; it is highly biased evidence from many of you”.
The committee is expected to report by 17 July.

Wednesday, 20 June 2012

Southampton ET move

It is now at:

100 The Avenue
So17 1EY

Friday, 15 June 2012

How to deal with serial employment litigants

The EAT has come down on a serial vexatious litigant, who had started 31 sets of employment tribunal proceedings  over 28 years like the proverbial tonne of bricks.
Most employment lawyers have encountered serial litigants in the tribunal. I for one once found myself in a room with 10 other Barristers all trying to strike out a claim against the same Claimant. To defend in such circumstances costs in legal fees and in time and so many companies will simply settle for not an insubstantial sum.
Anthony Bentley, who claims in his CV to be a qualified photographer and to have been an entertainer, issued proceedings for age discrimination and, in some cases, disability discrimination, in tribunals across the country, including Manchester, Exeter, Sheffield and London. 

The EAT said that Bentley would either apply for a job or inform the potential employer that he was available for work. When he did not receive a job offer, he would issue proceedings. He attended no hearings and none of his claims, all made between 3 June 2009 and 29 September 2011, was successful.
The EAT said it has imposed the little known, indefinite ‘restriction of proceedings order’ on Bentley under section 33 of the Employment Tribunals Act 1996. This bars him from starting or continuing any proceedings before an employment tribunal or the EAT without the EAT’s permission.

Section 33 of the Employment Tribunals Act provides in subsection 1:
“If, on an application by the Attorney General… the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground—
(a) instituted vexatious proceedings, whether in an Employment Tribunal or before the Appeal Tribunal, and whether against the same person or against different persons; or
(b) made vexatious applications in any proceedings, whether in an Employment Tribunal or before the Appeal Tribunal,
the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order.” 

The EAT was drawn to the way in which proceedings such as this, and parallel proceedings in other jurisdictions, had been dealt with as described in the relevant cases.  

The EAT considered  H M Attorney General v Barker [2002] SCR 1, which was dealing with a civil proceedings order under section 42 of what is now the Senior Court Act 1981, Bingham CJ, as he then was, said as follows:
“The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernable basis); that, whatever the intention of the proceedings may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involves an abuse of the process of the Court, meaning by that a use of the court process for the purpose or in a way which is significantly different from the ordinary and proper use of the court process […].”
The EAT considered that this applied to Mr Bently, who had made numerous 'misconceived' claims and despite being warned had not curbed his propensity to make further similar claims.
The type of vexatious behaviour found in an employment context was further described by Rimer J, as he then was, in the case of H M Attorney General v Roberts [2005] All ER (D) 138.  At paragraph 6 of his Judgment he said as follows:
“Most cases of allegedly vexatious litigants, as Lord Bingham there points out [in a reference to Barker], concern repeated claims or applications in respect of one particular matter by which the litigant has become obsessed, commonly involving the same defendant or defendants.  In the employment law field this is a less common feature.  Instead, what is commonly seen is the making of repeated applications of a like time to employment tribunals, usually against different respondents but founded on the like basis.  In this case, the pattern of Mr Roberts’ repeated applications to employment tribunals is that they allege a discriminatory refusal to give him a job for which he has applied on the alleged ground of his trade union membership and connections.  The Attorney General knows of at least 24 applications he has made to employment tribunals and, with some exceptions, the respondents are all different.  This feature is, however, no bar to a case being made out under section 33, as of course section 33(1)(a) makes plain.”
The EAT believed that description, accurately fits the conduct and the patterns of conduct of Mr Bentley in that, 'he applies for a job or for work and alleges age and/or disability discrimination on no basis other than that he was not successful in his application'.
By Charles Price, A Direct Access Employment Law Barrister

Sunday, 10 June 2012

Rumours of quick settlements for dismissed workers

'The Sun' newspaper has been first to pick up on Vince Cable's plan to allow bosses to make quick cash payments to agreeable employees rather than fight protracted unfair dismissal cases.

Without more detail it simply sounds like the existing system where parties in a dispute settle their dispute - not quite revolutionary!

Tuesday, 29 May 2012

Save time with the employment claims toolkit

Bath Publishing, the publishers of Employment Cases Update, have created a program which could save employment lawyers a huge amount of time. The 'Employment Claims Toolkit' is a ‘smart' program which produces a schedule of loss at the click of a button.

At first you fill in a template with the names of the parties, type of claim (unfair dismissal, wrongful dismissal, discrimination, TUPE, protective awards etc), date of dismissal etc but the cleverness of the device is not apparent until you click the schedule. After all we have all filled in computerised forms in order to change currency or even to work out redundancy payments or to turn gross to net see here. However this program is far more complex. For example once you have filled in the forms the Toolkit works out all of the maths and then if needed can adjust to take into consideration a change of hearing date or the date the claimant gets a new equivalent job.

But it is even cleverer than that: it will for example, adjust the maths and restrict the sum to the present Compensatory Award cap. It applies the correct weekly limit on gross pay where applicable, including the Basic Award. There is also the ability to reduce the compensation schedule for contributory fault and Polkey. It also grosses up awards and calculates the prescribed element. It even calculates the interest on discrimination awards.

For those who need their memories refreshing there is a resources section which gives useful help with minimum wage rates to compensation limits. There is also an incredibly useful 'Help' section which gives you all of the law you need when putting together a schedule of loss. Below is an extract:

'Adjustments to the Compensatory Award'

The Toolkit is designed to enable users to make any necessary adjustments to the compensatory award in the appropriate order (Digital Equipment Co Ltd v Clements (No 2) [1998] IRLR 134).

The order adopted by the Toolkit is as follows: a) A deduction in respect of any payment in lieu or ex gratia payment which has been made to the employee as compensation for the dismissal (Digital Equipment Co Ltd v Clements (No 2) [1998] IRLR 134.

The Toolkit will automatically make this deduction.

 b) A deduction of earnings which have mitigated the claimant’s loss or a sum which reflects any failure by the claimant’s failure to mitigate his/her loss (ERA s123(4)). The Toolkit will automatically make this deduction.

 c) A ‘Polkey’ deduction to reflect the chance that the claimant would have been dismissed in any event and that the employer’s procedural errors accordingly made no difference to the outcome (Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL)). It is for the user to enter the appropriate percentage.

 d) A percentage increase or reduction up to a maximum of 25% to reflect a failure by the employer or employee to comply with the ACAS disciplinary code (s207A TULR(C)A). It is for the user to enter the appropriate percentage.

 e) An increase for any failure by the employer to provide written particulars of employment (s38 EA 2002). This figure is to be entered on the ‘statutory rights’ tab. It is for the user to enter the appropriate sum between 2 and 4 weeks gross pay.

 f) A percentage reduction for any contributory fault on the part of the employee (s123(6) ERA 1996). It is for the user to enter the appropriate percentage remembering that this percentage does not have to be same as any deduction for contributory fault for the Basic Award.

 g) A deduction of any enhanced redundancy payment to the extent that it exceeds the basic award (s123(7) ERA 1996). The Toolkit will automatically make this deduction using the total redundancy pay figure entered by the user on the core data screen or on the compensation (immediate loss of earnings) tab.

 h) A deduction for accelerated payment of compensation in respect of future loss (See Bentwood Bros (Manchester) Ltd v Shepherd [2003] IRLR 364). It is for the user to enter the appropriate percentage.

 i) Interest on Compensatory Award (discrimination cases only) (The Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996). Interest on compensation other than an award for injury to feelings runs from the ‘mid-point’ date to the date of calculation. The mid-point is calculated as the date halfway between the discriminatory act and ending on the calculation date (usually the judgment date). Interest accrues from day to day and is simple rather than compound. It is for the user to enter the date of calculation and the interest rate to be applied. A table of interest rates can be found under the Tables and Resources tab.

The Toolkit's usability is helpful and you can store your finished schedules or works in progress with ease, or even save the schedules as Word documents. This tool will be incredibly useful for the Solicitor or Barrister handling many cases, simply for reasons of ease of management.

A useful small video is available and should be watched just to show the user how many tricks the program has up its sleeve. Although this program is only as good as the individual inputting the figures, it will doubtless save inordinate amounts of time. For those fed up with being handed messy, sometimes handwritten schedules of loss, the final product from the Toolkit is smart enough to be put before an Employment Judge.

Finally, the price is a snip at £120 for a year or £35 for a month. In a world where legal resources are often nearer the £1000 mark this represents a bargain.

To subscribe or see prices click here.

To see a video or a sample schedule see here.

 By Charles Price, A Direct Access Barrister

Monday, 21 May 2012

Government 'to drop no fault dismissal'

This week LNUK reported that Vince Cable's Department seemed to be lobbying against a Government proposal to introduce 'no fault dismissal'. The good news it seems is that the Government is to back track on a plan Cable is reported to have called, 'Bonkers' in private. A lack of support from business leaders and a furious backlash from Cable, who has warned ministers that the proposal would leave a "dead hand of fear" hanging over employees, is expected to persuade No 10 that the proposal should be quietly dropped later this summer. Damian Collins, a Conservative MP who has edited a report called the Growth Factory, told the World at One: "I think businesses and people out of work would want us to consider any policies that might encourage small businesses to take on more staff … Lord Oakeshott should let some of his colleagues read the report and talk to businesses in their constituencies and see what they think." The prime minister gave no indication of a climbdown on Sunday night when he said he was still interested in the Beecroft proposal that employers should be allowed to sack unproductive staff without explanation, known as no-fault dismissal. "On the issue of no-fault dismissal and other proposals like that, I am interested in anything that makes it easier for one person to say to another person: 'Come and work for me,' because we need to make our economies flexible," the prime minister said in Chicago. Oakeshott the former Liberal Democrat Treasury spokesman, who is an adviser to Cabletold Radio 4's The World at One: "It would be bonkers – a sack-on-the-spot mentality … All Liberal Democrats are against a sack-on-the-spot mentality and it won't happen." Hopefully, The Guardian is correct when it says that the Conservatives will be persuaded to drop the much maligned policy. By Charles Price, Barrister

Thursday, 17 May 2012

Supreme Court backs Homer in Important age discrimination judgment

HR Departments may scramble to alter their policies on promotion in light of this judgment. This case concerns the scope of indirect discrimination on the ground of age. It was heard alongside the case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16 which concerned the scope for justification of direct discrimination on the ground of age. The Supreme Court has agreed with arguments on behalf of Mr Homer The question was whether it was reasonably necessary to demand that candidates should posess a law degree in order to achieve the legitimate aims of the scheme to deny the benefit of promotion to people in his position. The appeal concerns the proper interpretation of “particular disadvantage” in Regulation 3(1)(b)(i) of the Employment Equality (Age) Regulations 2006 (“the Regulations”). Mr Homer began working for the Police National Legal Database (PNLD) as a legal advisor in 1995 at the age of 51. When he was appointed the role did not require a law degree or equivalent if the post-holder had exceptional experience or skills in criminal law combined with a lesser qualification in law. Mr Homer fell within this latter category. PNLD began to experience problems in attracting suitable people for the role of legal advisor. In 2005 the organisation introduced a new grading structure to improve career progression and offer more competitive salaries. The new structure provided for three promotion “thresholds” above the starting grade, the third and final of which requiring a law degree. In 2006 Mr Homer was graded under the new system as reaching the first and second thresholds but not the third. Because of his previous skills and experience he was, under the old grading structure, effectively at the top grade. In order to reach the third and highest threshold under the new structure Mr Homer would have been required to study for a law degree part-time alongside his work. This would take four years to complete. At this time Mr Homer was 62 years old and, being due to retire at 65, would have been unable to reach or benefit from being at the third threshold before leaving the employment. His various internal appeals and grievances were dismissed and, in April 2007, he issued proceedings under the Employment Equality (Age) Regulations 2006, SI 2006/1031 (“the Age Regulations”) which came into force in October 2006. Regulation 7 of the Age Regulations (which have since been repealed but substantially re-enacted under the Equality Act 2010) makes it unlawful for an employer to discriminate against employees such as Mr Homer in respect of, amongst other things, opportunities for promotion or receiving of other benefits. Regulation 3 provides that indirect discrimination occurs when a person (‘A’) applies to another person (‘B’) “… a provision, criterion or practice which he applies… to persons not of the same age group as B, but which puts… persons of the same age group as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage and A cannot show the . . . provision, criterion or practice to be a proportionate means of achieving a legitimate aim.” In contrast to the Seldon case, it was accepted that regulation 3 had properly transposed article 2(2)(b) of Council Directive 2000/78/EC on equal treatment in employment and occupation into UK law in cases of indirect age discrimination. In January 2008 the Employment Tribunal found that the appropriate age group was employees aged between 60 and 65 as these persons would have been unable to obtain any real benefit from obtaining a law degree before retiring. It went on to hold that Mr Homer had been indirectly discriminated against on the ground of age and that this was not objectively justifiable on the facts. The Employment Appeal Tribunal held that there had been no indirect discrimination, but that if there had been then it would not be objectively justified. The Court of Appeal dismissed Mr Homer’s appeal against the first finding, and dismissed the Respondent’s cross- appeal against the second finding. Both findings were then appealed to the Supreme Court. JUDGMENT The Supreme Court unanimously allows Mr Homer’s appeal on the first issue, finding that he was indirectly discriminated against by the Respondent. The Court remits the case to the Employment Tribunal to reconsider the issue of justification. Lady Hale gives the lead judgment with which all other members of the Court agree. Lord Hope and Lord Mance add some comments of their own. REASONS FOR THE JUDGMENT References in square brackets are to paragraphs in the judgment The Employment Appeal Tribunal and the Court of Appeal had been persuaded by the argument that Mr Homer was put at a disadvantage, not by his age but by his impending retirement [12]. It was accepted that his retirement was what prevented him from gaining any real benefit from acquiring a law degree. What “put B” at a particular disadvantage was not his age as such but the fact that he was due to leave employment within four years, his position being comparable with any other employees nearing the end of their employment for whatever reason. The Supreme Court disagrees with that analysis. Its flaw is to ignore the fact that persons in the position of Mr Homer were disadvantaged because of a reason (retirement) that directly related to their age. Persons similarly disadvantaged for reasons not related to their age would not fall within the scope of the Age Regulations and were not the intended recipients of its protection [13]. The form of words used under the Age Regulations was intended to make it more straightforward to establish claims of indirect discrimination with claimants simply having to establish that they in particular, and persons of their age group in general, were, in fact, disadvantaged when compared with other persons [14]. In any event, there are material differences between leaving work because of impending retirement and other reasons for doing so [15]. The law on indirect discrimination “…is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic.” [17]. As to justification, the issue is to be remitted to the Employment Tribunal for consideration in the light of the Supreme Court’s findings. The range of aims capable of justifying indirect discrimination is greater that those available in the context of direct discrimination (see Seldon v Clarkson Wright and Jakes [2012] UKSC 16) [19]. In particular, a real business need on the part of the employer alone may be sufficient. In addition to pursuing a legitimate aim, the treatment must be proportionate which means it is “…both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.” [22]. It is the criterion itself that must be justified as opposed to its discriminatory effects on the individual [23]; however part of that assessment includes comparing the likely impact of the criterion on the affected group as against the importance of the aim to the employer [24]. It is noted that Mr Homer was not dismissed or downgraded for not having a law degree, but was simply denied the additional benefits attaching to the newly introduced third threshold. The question was whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position [24]. It was not clear whether the Employment Tribunal had been suggesting a specific exception for Mr Homer alone: that was not an appropriate response to a discrimination claim. There has to be some way of modifying the criterion for everyone adversely affected but without introducing discrimination against another group [16, 25]. Lord Hope addresses the argument made that exempting Mr Homer from the third threshold requirements would unfairly advantage persons of Mr Homer’s age group. He does not accept that discrimination on grounds of age can be regarded as justified simply because eliminating it would put others at a disadvantage which is not related to their age [30]. Lord Mance however expresses some concern about the possibility of making an exemption for Mr Homer personally or for all those persons in the same age group as him, on the basis that it might unjustifiably discriminate against younger employees on the ground of their age [36]. HR Departments may now scramble to consider and change policies and grading criteria in light of the finding. Charles Price is a Direct Access Barrister at No5 Chambers Homer (Appellant) v Chief Constable of West Yorkshire Police (Respondent) [2012] UKSC 15 On appeal from the Court of Appeal [2010] EWCA Civ 419

Government warns against its own employment reform proposal

The Department for Business Inovation and Skills has produced a report which suggests that Government plans for 'compensated no fault dismissal' may be detrimental to the economy. The introduction to the report states that: 'Though the UK has a competitive employment framework by international standards, the Government believes that steps can be taken to improve it. Through the Employment Law Review, the Government is pursuing an ambitious programme of reforms to develop the framework to encourage firms to take on staff and grow. As part of this work, BIS recently issued a call for evidence seeking views on the issue of dismissing staff. The call seeks views in particular on the concept of ‘compensated no-fault dismissal’ for businesses with fewer than 10 employees, which would allow these employers to dismiss an employee where no fault is identified, provided a set amount of compensation is paid. The aim of such a reform would be to allow small businesses to have the right number of people at the right time. Uninformed economic reform, however, can have adverse and unintended consequences. The Government is therefore seeking to understand the potential economic impact, including the wider impact on both employer and employee confidence, of no-fault dismissal. Bearing this in mind, BIS undertook a study of international labour market regulation. Following an initial assessment of international data BIS identified three countries with particularly relevant features to the no-fault dismissal proposal: Germany, Australia and Spain.' The report goes on look at interesting case studies from other countires which seem to suggest that such a change is not desirable.

Tuesday, 3 April 2012

How do you inform an employee of their right not to retire?

Under the now defunct Employment Equality (Age) Regulations 2006, an employer had to follow a prescribed procedure if he planned to retire the employee, new case law in the form of, R&R Plant (Peterborough) Ltd v Bailey tells us how much the employer has to say under the old rules.

Under para 2 of Schedule 6 of the Employment Equality (Age) Regulations 2006, an employer who was intending to retire an employee had to notify that employee in writing of (a) the employee's right to make a request; and (b) the date on which he intends to retire the employee. That letter triggers the employee's right to make a request not to be retired. If the employer fails to send that letter, then the dismissal will usually be unfair.

The new judgment applies quite an onerous burden on the employer in that it makes clear that it is not enough state 'If you wish to continue working beyond this date, you are required to make an application to the company in writing'. The letter must go further. It must refer the employee to para 5 of Schedule 6, of the Employment Equality (Age) Regulations 2006which sets out the obligation for the employee's request to be in writing "and state that it is made under this paragraph".

The Government announced in July 2010 that as from October 2011 (with phasing in from April 2011) the exemption which allowed enforced retirement of employees at age 65 or over (in Age Regs 2006 reg 30) would be abolished. This was formally confirmed in January 2011. Appropriate regulations removing the age 65 so called "default retirement age" (or "DRA") were made on 5th April 2011 and came into effect the following day, 6th April 2011, subject to transitional provisions (the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, SI 2011/1069).

Subject to transitional arrangement in the 2011 regulations, as from 6th April 2011 it is therefore unlawful to require a person to retire by reason of age unless the requirement can be justified as a proportionate means to achieve a legitimate aim (see Age discrimination/2006 regulations/justification defence ).

The Court of Appeal has handed down an important decision reported in LNUK last week on whether employers can objectively justify age discrimination when making a significant costs saving, in a redundancy situation. It upheld the decision of the Employment Appeal Tribunal in Woodcock v Cumbria Primary Care Trust that the objective justification test was met on the facts and the Trust had not directly discriminated against the claimant.

Charles Price is a Direct Access employment Barrister of 11 years Call.

New judgments on retirement and age related redundancy

Employers sighs of relief with Woodcock judgment

Today, the Court of Appeal has handed down an important decision on whether employers can objectively justify age discrimination when making a significant costs saving, in a redundancy situation. It upheld the decision of the Employment Appeal Tribunal in Woodcock v Cumbria Primary Care Trust that the objective justification test was met on the facts and the Trust had not directly discriminated against the claimant. The treatment of this all important costs issue will give comfort to employers in similar circumstances.

Thanks to Rachel Dineley, employment partner and head of the equality and discrimination unit at DAC Beachcroft LLP, for sending me her comments:

“This is a sound and unsurprising decision. Crucially, the Court of Appeal has stated that an employer cannot justify discriminatory treatment “solely” because the elimination of such treatment would involve increased cost. That simply means that saving or avoiding cost will not, without more, amount to achieving of a “legitimate aim”, and reflects European law.

The reality is that it will very rarely be the case that an employer seeks to avoid or save cost without good reason. If to do so will adversely impact on employees of a particular age, the employer must be able to show that its actions are a proportionate means of achieving a legitimate aim. The challenge is in striking the balance. This decision does not provide a formula for determining what is proportionate. It could not do so. In every instance, the employer must weigh its particular issues and consider the available options. This will continue to be a difficult exercise, particularly when trying to balance the conflicting interests of groups of employees, the workforce as a whole and the needs of the business or organisation. There is no magic wand. Nonetheless, it is good news for employers.”

The facts

Mr Woodcock's role as Chief Executive of North Cumbria Primary Care Trust became redundant as a result of an NHS reorganisation. He remained employed for some months but no alternative role was found. As he was entitled to 12 months notice, and his 49th birthday was looming, the decision was taken to give him notice, to expire before his 50th birthday, when he would otherwise have benefited from an enhanced pension. This saved the Trust over £500,000. The Employment Tribunal found that the Trust's action was objectively justified in the circumstances. There was no doubt that the reason for dismissal was redundancy for which Mr Woodcock was paid £220,000. The avoidance of the additional cost in that context was a proportionate means to achieve this.

On appeal the EAT had held that the tribunal had not decided the issue on the basis of "cost alone" but had applied the "cost plus" test consistent with the 2005 case of Cross v British Airways. That’s said, in the EAT's view it could not be said that cost considerations can never by themselves constitute sufficient justification or why they need the addition of some other element in order to be legitimised. To adopt such an approach would tend to involve parties and Tribunals in artificial game-playing ("find the other factor").

The Court of Appeal has not picked up this important thread. It looked carefully at the facts and confirmed that Mr Woodcock’s treatment could not be characterised as aimed at avoiding cost and no more. If it had, it would not have been a means of achieving a legitimate aim and would not have been capable of justification.

What does this mean for employers?

While the Court’s approach leaves employers more readily able to justify their actions in comparable circumstances it will still be a tricky balancing exercise in many cases. The onus remains firmly on the employer to demonstrate that the action taken is warranted, despite the adverse impact on employees. This judgment will be of comfort to employers, including those in the increasingly costs-conscious public sector, where significant enhanced payments may become due under a pension scheme at a given age . Taking these costs into account when reaching a decision on the timing of a redundancy may be essential in seeking to balance the books .

The decision is also consistent with the EAT's decision last month in Benson v HM Land Registry, which held that in a cost -cutting exercise, conducted in conjunction with a rationalisation of the employer's office premises, nationwide, it was a matter for the employer to determine its budget for achieving a reduction in headcount, and that it could take cost into account when determining who should be selected amongst those who had volunteered for redundancy.

The practical lesson is to plan ahead, to anticipate issues and address them. In a compulsory redundancy situation that will include all the reasonable steps to be taken in seeking suitable alternative employment for affected employees whether at a comparable level or a different level, in appropriate cases.

Thursday, 16 February 2012

Skype enters the courtoom - a guide

The free technology which allows 2 parties to talk to each other as well as see each other has entered the employment tribunal for the first time according to 'Lovells'.

Rule 15(2) of the Employment Tribunals Rules of Procedure 2009 says that proceedings may utilize 'electronic communications' if it is considered 'just and equitable' to do so. Perhaps when this rule was introduced it wasn't clear that Skype was to be used by more and more of us.

In the ELA briefing this month Sarah Lovell of Lovell's Solicitors describes the first use of this technology in the tribunal I have heard of.

The case was part way through an unfair dismissal and race discrimination claim which went apart heard in April 2011. One of the respondent's witnesses had given evidence and was halfway through cross-examination when the case was adjourned. In the intervening period, the witness had left the UK and emigrated to Turkey and was unable to return on relevant dates. Video conferencing was not an option as the witness did not live in one of the only places in Turkey where it is available. The obvious choice was Skype

The tribunal considered the application to allow Skype on the morning of the hearing. It had regard to the overriding objective and the waste of tribunal time which would have occurred if the hearing had been adjourned. There was no Wi-Fi at the tribunal and so a room was hired in a local hotel with an Internet connection.

Another point to remember is that the hearing must be 'in a public place' and so a sign should be added to the outside of the conference room door.

Rule 15(2) says :

'It must be in a public place to which the public has access and using equipment s that when oral evidence is given the public is able to see and hear all the parties to the communication'.

Barring a poor connection Skype could be the answer where video conferencing is unavailable.

Monday, 13 February 2012

Draft SI for Increasing Qualifying Period

The draft The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 have been published.

For all employees employed on or after 6th April 2012, the qualifying period for unfair dismissal (and requests a statement of reasons for dismissal) increases to two years. Employees whose period of continuous employment began on or before 5th April 2012 will still be subject to the one year qualifying period.

Tuesday, 24 January 2012

Transitional arrangements for UD

The Department for Business, Innovation and Skills (BIS) has confirmed to IDS Brief that the increase in the qualifying period for unfair dismissal claims to two years will only apply to those starting a new job on or after 6 April 2012. Employees whose employment started before 6 April will remain subject to the one-year qualifying period. Thus, someone with 18 months' continuous employment on 6 April will not lose their right to claim unfair dismissal, and an employee with 11 months' service on that date will still only have to wait one month before being able to claim.

DAC Beachcroft welcomes any reduction in consultation period

While most organisations report that the prospect of having to conduct collective consultation does not mean they would put off large scale restructures / redundancies, the majority state that a shortening of the 90-day consultation period would be beneficial to UK business and organisations, according to leading international law firm, DAC Beachcroft LLP. It is likely however that there will be many who believe that the 90 day limit is essential for useful consultation.

DAC Beachcroft LLP will be responding to the latest Government call for views on the rules governing large scale redundancy consultations and the effectiveness of the 2006 changes to the TUPE Regulations. In a move designed to validate its response the firm has canvassed the opinion of approximately 2800 of its client contacts on effects ‘at the sharp end’ in a recent survey.

The responses received to date indicate that:

· A shortening of the 90-day consultation period for 100 or more redundancies would be beneficial to UK businesses and organisations.

· The current 90-day period gives rise to consultation fatigue, additional costs, uncertainty for employees and unprofitable delays.

· A period of between 30 to 45 days would be more appropriate/workable (80 per cent).

· More clarity is required on the formal definition of an ‘establishment’ for the purposes of collective redundancy consultation (respondents were divided as to whether this referred to ‘company’, ‘location’, ‘role’ or a combination of these and other criteria).

· On balance the 2006 changes to TUPE made the question of whether TUPE applies clearer, however, a specific time period for TUPE consultation would be welcomed rather than the current requirement to consult for “long enough” prior to the transfer, and the current time limit to submit “employee liability information” of 14 days prior to transfer is considered to be far too short.

· There is uncertainty at the moment as to whether employers can effectively start the collective redundancy consultation process in advance of any TUPE transfer. The majority of respondents (82%) would like it to be clear that they could do this without running any legal risk.

Overall, it appears that the 2006 TUPE changes, while welcome, need further clarification and simplification to reflect changes in the trading environment and contemporary working practices.

Commenting on the survey findings, Chris Syder, Partner said: “The Government’s two calls for evidence gave the firm a clear opportunity to represent the views of our clients and those who are affected by having to implement these legal requirements at the sharp end. There is a clear message to Government that UK business is finding the collective redundancy process cumbersome and confusing in practice.

“We would call upon the Government to listen carefully to these employer views and consider them when formulating future revisions to the existing regulations. 80% of those responding to our survey feel that the 90 day consultation requirement should be reduced to between 30 and 45 days. In the current economic climate, every effort should be made to help businesses in their attempts to adapt commercially to challenging market conditions. Employers clearly desire less rigid consultation period requirements”

The Department for Business Innovation & Skills published a call for evidence on the effectiveness of collective redundancy consultation rules [insert link] and separately the TUPE Regulations 2006 at the end of November 2011. The deadline for responses is 31 January 2012.

Monday, 16 January 2012

How to minimize compensation claims

For many employment lawyers this post will be old news but there are tactics which may be adopted when you know that a settlement is far off and the writing is on the wall for your defence in an unfair dismissal claim.

The Claimant obviously has a duty to mitigate his/her loss or in other words to look for other employment after their resignation/dismissal. The role although relevant can be at a lower level and with a slightly different skill set.

One really useful tactic is to send the Claimant job ads from a local paper or website prior to the tribunal hearing. Make sure that they are relevant to the individual's skill set and geographically possible. You can then ask the Claimant at the compo hearing why didn't they apply for the roles posted to them?

Additionally, very few people wish to return to their former workplace after a parting and so a good tactic is to offer the individual a different role at their own workplace.

Also conduct. If you can argue that the Claimant contributed in some way to their dismissal then you can ask for a percentage reduction in the compensation awarded.

Try and keep the award below 30k - anything above will be grossed up for tax reasons.

Of course obtain legal advice before taking them on.

Charles Price is a Direct Access Barrister, which means that you do not need a Solicitor before contacting him.

Sunday, 8 January 2012

Facebook uses in employment tribunals

Just a few reasons I have seen as to how the dreaded fbook has featured in employment tribunals:

1) To prove that a dismissed employee has a new job
2) To show that a dismissed employee was searching for a new job way before she actually resigned for a different given reason.
3) To show that she used swear words regularly and thus showing that the use of similar words could not have violated her dignity in a harassment claim.

For Solicitors and Barristers there are risks in joining clients on social media sites - see the following:

Joining clients on facebook 'could be contrary to ethical obligations'

The Law Society has issued a practice note addressing conduct in relation to social media. Engaging in 'social media' could present challenges to the core duties of professionals...
A vital passage from the guidance is as follows:

Wednesday, 4 January 2012

What to expect in 2012

What does 2012 have in store employment law wise?

Increase In Employment Tribunal Award Limits

As of 1 February 2012 the position will be as follows:-

maximum unfair dismissal compensatory award £72,300 (increased from £68,400)
maximum week's pay £430 (increased from £400 - this figure is used for calculating statutory redundancy payments and the basic award in an employment tribunal)
This now means that the maximum unfair dismissal award will be £85,200 (maximum basic award plus maximum compensatory award).

Bear in mind that there will still be no limit to the amount that can be awarded for unfair dismissal for certain health and safety and whistleblowing reasons. In addition, there is no limit to the amount that can be awarded for discrimination claims.

Pension Changes

October 2012 sees the implementation of auto enrolment for pensions. Although auto enrolment commences on 1 October 2012, duties upon employers will be staggered over four years, starting with large organisations. Once auto enrolment is implemented, all employers will require to automatically enrol eligible job holders into an appropriate pension scheme.

Family Friendly & Sick Pay Rates

From 9 April 2012, statutory sick pay will increase to £85.85 from £81.60 and statutory maternity, paternity, additional paternity and adoption pay will increase to £135.45 from £128.73.

Increase In National Minimum Wage

Not yet announced but, as per previous years, I would expect this to increase with effect from 1 October 2012.

Qualifying Period for Unfair Dismissal Claims

The qualifying period for raising a claim of unfair dismissal is set to increase from 1 to 2 years from April 2012. However, it is important to note that some claims for unfair dismissal do not require a year’s continuous service and certain claims will still be capable of being brought from day one of the employment relationship. Dismissals relating to discrimination, whistleblowing, exercising certain statutory rights, and health & safety-related reasons are not covered by the qualifying period and claims can be brought from the outset of the relationship. This will not change from April.

Employment Law Reform

The main changes proposed include increasing the qualifying period for unfair dismissal claims from one to two years, allowing, or certainly making it easier for, employers and employees to have frank discussions about any employment issues, and a revamp of the Employment Tribunals system.


Consultation has begun on proposals to introduce a fee structure in the Employment and Employment Appeal Tribunals.

Currently, Claimants are not required to pay to raise a claim or an appeal with the Employment Tribunals or the Employment Appeal Tribunals Office. The current consultation seeks views on two proposed fee charging schemes:

Firstly, that the level of fees charged will depend upon the nature of the claim and the stage proceedings reach. Two fees would be payable by the Claimant, one at the time the claim is lodged and the second for claims proceeding to hearing. For single claims, the initial fee would be between £150 and £250 and the hearing fee would be between £250 and £1250 depending on the type of claim. Once a claim has been accepted, six further fees would be charged for certain specified applications, for example a request for written reasons or a counterclaim.

The second proposal is that one main fee would be paid by the Claimant when the claim is raised, regardless of whether or not the claim progresses to a hearing. For a single claim, it is proposed that the fee would range between £200 and £1,750 depending on the amount being claimed. As above, six further fees for certain applications would be payable. It is proposed that for those Claimants seeking an award of over £30,000, the fee would be substantially higher than for Claimants who were seeking a significantly lesser sum.

For the Employment Appeals Tribunal the fee structure proposed is similar to option one, above, the proposed initial fee being £400 with a hearing fee of £1,200.

The consultation, which closes on 6 March 2012, seeks views on the proposal that the fees could be reimbursed by the unsuccessful party to the successful party should the Tribunal consider this to be appropriate.

Costs Awards and Deposits

Currently Employment Tribunals may award up to £10,000 in costs (or expenses in Scotland) against the unsuccessful party at a hearing, although this is rarely exercised in practice. It is proposed that, from April, the maximum amount of costs which could be awarded by the Tribunal will increase to £20,000.

If an Employment Judge considers that all or part of a claim (or a response) has little reasonable prospect of success, he or she may make an order requiring that party to pay a deposit of £500 or less as a condition of being permitted to continue to take part in the proceedings. As part of the reform, from April the amount of deposit a Tribunal can order a party to pay will increase to £1,000.


Currently, witnesses can apply to the Employment Tribunals Office to be reimbursed for the expenses incurred in attending a hearing. From April, this procedure will be withdrawn and the Tribunal will be able to direct parties to bear the cost of witness attendance, including the cost of witnesses called by the successful party.

Another change to come into force in April is in relation to witness statements. This will apply to Tribunals in England & Wales where it is standard practice to use witness statements at hearings. From April, witness statements will be taken as read at the Employment Tribunal unless directed otherwise by a Judge. The position in Scotland will remain unchanged as witnesses are usually required to give oral evidence without the use of witness statements.

Panel Members

Unfair dismissal hearings are heard by an Employment Judge and two lay members. From 1 April 2012 an Employment Judge will hear unfair dismissal cases alone. This change will be reviewed after a year in order to see how successful this is in practice.

ACAS Conciliation

It is also proposed that prior to submitting a Tribunal claim, a Claimant will require to submit details of their complaint to ACAS. Parties would then be offered pre-claim conciliation for a period of one month. In terms of time limits, if both parties agree to enter into pre-claim conciliation then effectively the 3 month time limit for submitting claims will be paused and the Claimant will have a month after the conclusion of pre-claim conciliation to present their claim to the Tribunal.

Flexible Working

It was hotly anticipated that an extension to the right to request flexible working would come into force in April 2011 for all parents with children under 18. However, this proposal was shelved but further proposals have now been outlined which introduce flexible parental leave and flexible working.

Flexible parental leave would allow unpaid leave for fathers to attend antenatal appointments and an 18 week period of maternity leave for mothers, followed by a new 34 week period of shared parental leave.

The right to request flexible working would be extended to all employees who have 26 weeks’ continuous employment, regardless of whether or not they have children. There would also be an introduction of a new requirement for employers to consider requests “reasonably”.

A time frame has not been suggested in relation to the flexible working changes, and these are key proposals only.

Protected Conversations

Consultation is underway on introducing a system of ‘protected conversations’ to allow employers to raise issues such as poor performance or retirement plans in an open way, free from the worry that it will be used as evidence in a subsequent tribunal claim.

Simplifying Compromise Agreements

Consultation on simplifying compromise arrangements, to enable two sides to reach a no-fault settlement in exchange for an agreement not to bring future claims. A standard text “settlement agreement” is proposed. In addition, the Government intends to rectify the issue relating to the wording of section 147 of the Equality Act which has caused some confusion as to whether discrimination claims can be compromised.