Pay protection for trainee doctors

A part-time doctor who moved to a full-time training post in a lower grade was entitled to be paid at the full-time equivalent of their pay in their previous post: Barts and the London NHS Trust v Verma [2013] UKSC 20.

 

Collective redundancies consultation

The following changes will apply to an employer who has proposed to make collective redundancies on or after 6 April 2013.

Minimum period: In a case of 100 or more redundancies - the requirement for a minimum period of 90 days between the start of the consultation and the first dismissal will be reduced to 45 days. Please note section 7 (How long should consultation last?) of the ACAS guide on collective redundancies.

Notifying the Government about collective redundancies: In a case of 100 or more redundancies - an employer must notify the Government about the redundancies at least 45 days before the first dismissal takes effect. The employer may use a HR1 Form to notify the Government about the redundancies.

Fixed-term employees: A fixed-term employee must be included in collective redundancies consultation - if they are being made redundant before their contract has expired. This will apply to a case of 20 or more redundancies.

ACAS guide: The ACAS has published a new guide on collective redundancies.

Source: Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 [SI 2013/763].

TUPE and Collective Agreements

The Advocate General (AG) has stated that it is possible under EU law - for a private-sector transferee to be legally obliged to comply with a change (e.g. a pay increase) made to the terms of employees transferred from the public sector - even though the change was agreed by a public-sector negotiating body - after the TUPE transfer had taken place.

The AG added that a national court should determine whether the legal obligation would breach the employer's right to conduct a business under Art. 16 of the Charter of Fundamental Rights of the European Union.

Source: Alemo-Herron v Parkwood Leisure Ltd (C-426/11).

Comment

If the ECJ agrees with the AG's opinion - it is likely that the Government will limit the period during which a transferee must comply with a term derived from a collective agreement to one year - after the TUPE transfer: Art 3(3) of the TUPE Directive.  

Parental leave goes up from 13 to 18 weeks

From 8 March 2013, an employee’s entitlement to parental leave for a child will increase from 13 weeks to 18 weeks. And an agency worker who is returning from parental leave will have the right to request flexible working: The Parental Leave (EU Directive) Regulations 2013.

Redundancy after maternity leave

In Petch Ltd v English-Stewart [EAT/0213/12], Mrs English-Stewart was employed as a part-time marketing manager. Her job had been carried out by other employees in the marketing department during her maternity leave. Mrs English-Stewart was made redundant after she returned to work from maternity leave. She claimed unfair dismissal and unlawful sex discrimination.

Employment Tribunal

The employment tribunal (ET) upheld the claim because the dismissal was connected with Mrs English-Stewart’s maternity leave. She was the only employee who had been singled out to be made redundant.

Employment Appeal Tribunal

The Employment Appeal Tribunal (EAT) disagreed with the ET. Although the dismissal was connected with the maternity leave - there was a genuine redundancy situation. Hence, the reason for the dismissal was redundancy. And the ET should have asked if the redundancy dismissal was connected to the maternity leave - by looking at whether reg. 20(2)(b) of the Maternity and Parental Leave etc Regulations 1999 had been satisfied.

The regulation states:

(b) it is shown that the circumstances constituting a redundancy applied equally to one or more employees in the same undertaking who held positions similar to that held by the employee (i.e. Mrs English-Stewart) and who have not been dismissed by the employer;     

The EAT remitted the case to the ET to consider whether Mrs English-Stewart's job was similar to the jobs of the other employees in the marketing department.

Comment

The case illustrates that if a genuine redundancy situation arises as a result of an employee's job being absorbed by other staff while the employee is on maternity leave (or long-term sick leave) – it does not automatically mean that the employee’s redundancy dismissal is unfair or discriminatory.

In July 2012, the ACAS published a guide entitled Managing redundancy for pregnant employees or those on maternity leave. The guide is available on the ACAS website.

Statutory payment rates for 2013/14

The statutory payment rates for 2013/14 are as follows.

• The weekly rate of Statutory Sick Pay (SSP) is £86.70.

• The weekly rate of Statutory Maternity Pay (SMP) is 90% of the employee's average weekly earnings for the first six weeks - followed by the lower of 90% of average weekly earnings or £136.78 per week for the remaining weeks of the maternity pay period.
• The weekly rate of Statutory Paternity Pay (SPP) or Statutory Adoption Pay (SAP) is the lower of 90% of the employee's average weekly earnings or £136.78 per week.
• The payment of SSP, SMP, SPP, or SAP is subject to the employee's average earnings being at least £109.00 per week.

Source: Department for Work and Pensions

Tribunal awards will increase from 1 February 2013

From 1 February 2013, tribunal awards will be increased by the Employment Rights (Increase of Limits) Order 2012.

The main increases are:

• The maximum amount of a week’s pay will increase from £430 to £450.
• The maximum compensatory award for unfair dismissal will increase from £72,300 to £74,200.

• The daily limit on a guarantee payment will increase from £23.50 to £24.20.

In September 2012, the Government published a consultation paper about reducing the maximum compensatory award for unfair dismissal. The Government’s response to the consultation paper is expected in Spring 2013.