12 Updates of Christmas

Well, I'm finally feeling festive! Seasonal greetings to all! 2010 has been an indisputably busy year for Employment Law and with the Coalition Government remaining focused on achieving a more flexible UK workforce and reforming the tribunal system, 2011 looks set to be rife with developments. Here are my 12 bitesize updates, one for each of the 12 days of Christmas:

1. Government urged to delay planned changes to the retirement age for a year!  From April 2011, employers will no longer be allowed to dismiss staff just because they have reached 65. However, the UK’s leading employers’ group, CBI, have warned that the huge uncertainty caused by this change will lead to a surge in unfair dismissal claims. The law, they say, must be simplified before the default retirement age is scrapped!
2. Dismissal for unacceptable manifestation of spiritualist beliefs is not discriminatory! For example, the EAT held that dismissal for the distribution of spiritualist posters and CD-ROMs at work was insufficient to be directly discriminatory. The dismissal was for the unacceptable manifestation of beliefs in the workplace, not for holding those protected beliefs. [Power v Greater Manchester Police Authority UKEAT/0087/10]
3. The unfair dismissal compensation limit will be raised in February 2011! The cap on unfair dismissal compensation will be raised in February to £68,400, allowing Tribunals to award a higher maximum than the current £65,300 limit! The week pay cap of £380.00 is also being raised to £400.00.
4. Pension disputes can be compromised! Whilst the Pensions Act 1995 renders any agreement to surrender a pension entitlement or right to a future pension ‘unenforceable’, the Court of Appeal has held that if acting in good faith to settle a genuine dispute over whether such rights exist, a compromise agreement should be enforceable! [IMG (UK) Limited v Peter German and HR Trustees Limited [2010]]
5. 20 weeks of maternity leave at full pay?! A large majority of EU Employment Council ministers have rejected the European Parliament’s proposal for 20 weeks of maternity leave at full pay. The Council hopes to agree its position in 2011.
6. Reinstating an employee that has resigned before diagnosis might be a ‘reasonable adjustment’! Failing to reinstate a police officer who had resigned from the force whilst depressed was a breach of the duty to make reasonable adjustments under the Disability Discrimination Act 1995, the EAT has held! [Hinsley v Chief Constable of West Mercia Constabulary UKEAT/0200/10]
7. Positive action in recruitment and promotion soon to be allowed! On 2 December, the Government published its report ‘Equality Strategy – Building a Fairer Britain’ confirming that the sections of the Equality Act 2010 allowing positive action in recruitment and promotion will be implemented.
8. A ‘no detriment pension guarantee’ will pass to a new employer alongside a TUPE transfer! Although a pension guarantee is excluded from transferring under TUPE, such pension rights and liabilities could still transfer under contract law in some circumstances, even over 20 years later! [Whitney v Monster Worldwide Ltd [2010] EWCA Civ 1312]
9. An Individual cannot bring a discrimination claim based on an advertisement for a job he has no interest in taking! Nevertheless, a genuine deterred applicant will still have a claim, and in such a case the tribunal will have the difficult task of assessing whether or not that was the case.
10. Asking agency workers to apply to a line manager before taking annual leave is not sufficient to imply a contract of employment! Such practice is simply not sufficient to justify the implication of a contract [Tilson v Alstom Transport [2010] EWCA Civ 1308]
11. Whistle blowing detriment claim will succeed unless disclosure played ‘no part whatsoever’ in reasons for treatment! An employer will not be liable if it can show that the detriment was "in no sense whatsoever" on the grounds of the protected disclosure. [Fecitt and others v NHS Manchester UKEAT/0150/10.]
12. Voluntary Schemes for gender pay gap reporting in the private sector! Employers with more than 250 employees will not have to publish gender pay data, as previously proposed under the Equality Act 2010. Instead, they will be asked to do so on a voluntary basis from April 2011.

 

Wishing you all a Merry Christmas and a Happy New Year! 

[The information and commentary contained in this blog does not, and is not intended to, amount to legal advice and does not form the professional advice or opinion of any Solicitor or Law Firm]

Compromising pension disputes

Driven by the public policy of encouraging settlement of disputes, the Court of Appeal has handed down its long awaited judgment in IMG (UK) Limited v Peter German and HR Trustees Limited 2010, confirming that section 91 of the Pensions Act 1995 is not a complete bar to compromising disputes over pension rights. 

Section 91 provides that any agreement to surrender a pension entitlement or right to a future pension under an occupational pension scheme is unenforceable. However, the Court of Appeal has held that the section is limited in scope to rights and entitlements to future benefits and does not extend to disputes over whether those rights actually exist!

This seems like a logical decision and will allow many trustees and employers to breathe a sigh of relief. If compromise was not allowed then, if certainty were to be achieved, every case would have to be taken to the Court or Ombudsman for a ruling. 

The Court did, however, go out of its way to make clear that the ruling only applies to compromises of genuine disputes in good faith and does not open the ‘back door’ to surrender agreements. For this reason, there are still likely to be instances where such agreements are not effective, for example, where there is no genuine dispute! 

IMG (UK) Limited v Peter German and HR Trustees Limited 2010

[The information and commentary contained in this blog does not, and is not intended to, amount to legal advice and does not form the professional advice or opinion of any Solicitor or Law Firm]