Consultation paper on workplace disputes

The Government has published a consultation paper about resolving workplace disputes. The consultation period will end on 20 April 2011.

The Government’s proposals set out in the consultation paper include:

Unfair dismissal: increasing the qualifying period for unfair dismissal from one year to two years.

Out of court settlements: such a settlement will be “paid in” to the tribunal if it is rejected by a claimant. If the tribunal makes a less favourable award to the claimant – there will be a mechanism for recognising the additional costs incurred by the employer – as a result of the tribunal hearing.

In G4S Security Services (UK) v Rondeau [EAT/0207/09], the EAT ordered Mr Rondeau to pay costs of £3,420 to the employer. Mr Rondeau had acted unreasonably – when he accepted the employer’s offer at the court’s door – but did not respond to the same offer that was made to him on two previous occasions.

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New codes of practice on the Equality Act

The following new Codes of Practice on the Equality Act are expected to come into force in late February 2011.

• Equal Pay: Statutory Code of Practice

• Employment: Statutory Code of Practice

Source: EHRC's website.

Right to be accompanied at a disciplinary hearing

The right to be accompanied at a disciplinary hearing applies to a person who is a worker within the meaning of s. 13(1) of the Employment Relations Act 1999 [ERA].

In Bullock v Norfolk County Council [EAT/0230/10], the EAT found that a foster carer was not a worker within the meaning of s. 13(1) of the ERA 1999 – because the relationship between the foster carer and Norfolk County Council was not governed by a contract. Therefore, the foster carer was not entitled to be accompanied by a trade union representative at a disciplinary hearing.

TUPE transfer did not take place

In CLECE SA v Valor [C-463/09], the ECJ decided that a TUPE transfer had not taken place - where a municipal authority had “contracted in” a cleaning contract and hired new workers to clean its premises. The economic entity had not retained its identity after the transfer.

Comment

Please note that reg. 3(1)(b)(iii) [service provision change] of the TUPE regulations did not affect the ECJ's decision in the CLECE case.

Statutory maternity pay

In Wade and North Yorkshire Police v HMRC [2011] UKUT B1 (TCC), Mrs Wade took police maternity leave earlier than the 11th week before the expected week of childbirth (EWC). She notified her employer that she wanted to receive her statutory maternity pay (SMP) from the 4th week before the EWC.

The employer argued that Mrs Wade should receive her SMP from the 11th week before the EWC.

The Upper Tribunal disagreed. Mrs Wade could claim her SMP from the 4th week before the EWC. The Statutory Maternity Pay (General) Regulations 1986 allowed Mrs Wade to select the start date of the SMP period.

Government publishes NMW consultation paper

The Government has published a consultation paper about the national minimum wage - in relation to living accommodation that is provided by a higher education institution (HEI) - for a student who works part-time for the HEI.

The consultation period will end on 12 April 2011.

The consultation paper is available on the BIS website.

Disciplinary penalties for a group of employees

In University of Warwick v Gray [EAT/0508/09], the EAT held that Mr Gray’s dismissal was fair. The employer was entitled to take into account Mr Gray’s disciplinary record when it dismissed him - even though it had issued final written warnings to the other employees - who had committed the same disciplinary offence.

Comment

The Gray case provides further confirmation that an employer does not have to issue the same disciplinary penalty – to each member of a group of employees who have committed the same disciplinary offence – if they have different disciplinary records.

Also see London Borough of Harrow v Cunningham [EAT/1098/94].