Canter Levin & Berg Employment Solutions Canter Levin & Berg Employment Solutions
February 2011

Welcome to the February edition of the Canter Levin & Berg Employment Solutions newsletter. I hope that you like the new look which is in line with our new website. This month we look at the Government's attempts to reform employment law to save businesses costs while at the same time pressing ahead with legislation that will cost them hundreds of millions of pounds.

We live in strange times, there is no doubt about that. The Coalition is presenting a business friendly face to the CBI and other organisations while at the same time managing to keep pace with the previous Government in respect of new employment legislation, each piece of which attracts new liabilities and further expense in implementation. The Coalition is currently consulting in relation to reform of the Employment Tribunal system. Good, all will say, until they actually read what is being proposed. Fines for employers losing a hearing, payments into court; even Kafka couldn't dream up such self-defeating machinations. You do not lighten the burden on employers, employees and the Employment Tribunal by creating new hurdles, new laws and fining businesses who may accidentally stumble in the minefield that they are expected to navigate.

The answer to the Employment Tribunal conundrum is simple: first, toughen up the costs regime for claimants who reject offers and fail to beat them at a hearing and whose cases are very weak and shift the presumption so as that the award of costs will be presumed to be made in certain circumstances where the claimant has had legal advice (for example, when lawyers draft very poor pleadings that have no chance of success). Second, overhaul the backroom processes and make the system more efficient by utilising administrative judges who could take decisions on applications and case management problems without bothering more senior judges. Third, require all parties to be legally represented or be a litigant in person thus removing the vast amounts of businesses purporting to give legal advice to both sides but actually creating expense and often giving poor advice. Fourth, all witness statements should be filed with the Employment Tribunal two weeks before the hearing and taken as read on the day. Fifth, introduce proper and meaningful mediation to all Employment Tribunals, not involving ACAS but a qualified judicial mediator.

Despite the above being the view of many lawyers I have spoken to, it is highly likely that we will end up with a system no one asked for or wants and, by the time it's implemented, will be obsolete.

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Will Burrows

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This month's news:

1. Government Attempts to Please Everyone but Looks to be Failing

The Government is continuing its consultation with unions, business groups and employment lawyers on proposed reforms to the Employment Tribunal system and employment law in general. Unfortunately, it appears that in attempting to balance employee rights with the promotion of business it may attempt to please both sides and end up with a worse set of circumstances that at present.

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2. Volunteers and Interns have few employment rights

Ms X had a position as a specialist volunteer adviser with the Mid-Sussex Citizens Advice Bureau. Her purpose in seeking the post was to obtain the qualifications and experience to establish her own business as an adviser on welfare law. She was unpaid, was not an employee and was under no legal obligation to attend work but it was anticipated that there would be "a level of trust and a hope that expectations would be honoured". She later brought a disability discrimination claim against the Bureau when she was asked to cease to attend as a volunteer.

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3. Gold plating EU Directives - and TUPE

From an employment law angle one of the most notorious examples of "gold plating" of EU directives is the provision which ensures that "service provision changes" are covered by the TUPE regulations. The relevant EU Directive does not require this provision. An example of a "service provision change" would be where a local education authority outsources to a private company the provision of school meals which it previously provided using its own employees

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4. Unions Unhappy about Government changes to Civil Servant's "Redundancy" entitlements

Civil servants are not eligible to receive statutory redundancy pay. Instead they have entitlements under the Civil Service Compensation Scheme (this, of course, covers only civil servants, not local authority and other public sector employees who are eligible for statutory redundancy pay under normal rules).

A year ago, in February 2010, the government attempted to amend the terms of that scheme to reduce the maximum limits on lump sum payments to civil servants whose appointment is terminated prematurely (ie who take compulsory or voluntary redundancy). However after a judicial review instigated by the Public and Commercial Services Union the High Court quashed the government's amendments as unlawful in May 2010.

Following this setback for the government, the Superannuation Act 2010 was passed shortly before Christmas.

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5. The Agency Workers Regulations are Looming

I've written before about these regulations, I've even held seminars on them as far back as 2009 (as I'm sure some of you remember). Now they are almost upon us, October 2011 to be precise, I thought it may be a good idea to catch up on the changes that are coming in.

The intention of the Regulations is to ensure equal treatment for all temporary agency workers in terms of basic employment conditions and to equalise temporary workers with employees after a certain time period, namely, 12 weeks.

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6. Increase in Compensation Payments at the Employment Tribunal

The annual review of Employment Tribunal compensation payments is here again! Here is a list of the main new Employment Tribunal compensation maximum limits where the "appropriate date" (for example date of dismissal) is on or after 1st February 2011:

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7. Can employers issue redundancy notices for over 65s before 6 April?

Based on Government announcements made in January this year and corresponding ACAS guidance, the almost universally held view was that employers needed to act before 6 April in order to issue notices to employees who are 65 or over to retire on or before the deadline for abolition of the default retirement age on 6 October. The reason for this is that, in order to act fairly under the current (but soon to be phased out) Regulations, an employer must give notice of retirement of at least six months. This allows time for the employee to object to the proposed retirement and for the employer to consider those objections (a necessary part of the process).

However, in an unexpected development which has caused a good deal of consternation, it seems from the draft regulations which have now been published that only those who turn 65 during the period from April to October can be forcibly retired and those already over 65 are already protected.

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8. And Finally...

Richard Tremelling, head of technology at a comprehensive School in Swansea, South Wales, was disciplined for allowing two 15 year old students to ride on a sledge in the snow without carrying out an appropriate risk assessment, failing to provide a written risk assessment and failing to ensure they were wearing protective clothing and protective headgear. It seems that some two years later he has been dismissed as a result of the incident

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