SHIELD HR Employment Law, HR Folklore and Shooting Foxes November 2013

Transcription

1 SHIELD HR Employment Law, HR Folklore and Shooting Foxes November 2013

2 SHIELD HR Very competitive fees per hour Advice on all aspects of employment law Provision/review of employment documentation Training on employment law Reorganisations/TUPE/industrial action support Employment Tribunal representation Shield HR Ltd robert.kerr@shieldhr.co.uk Tel

3 Discrimination Can a white person bring a claim of racial discrimination against another white person? Can a white person bring a claim of discrimination against another white person where the act of discrimination has been targeted at black people?

4 Discrimination A unlawfully discriminates against B if because of protected characteristic A treats B less favourably than treats others A person harasses another if engages in unwanted conduct related to a protected characteristic and the conduct violates their dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Weathersfield Ltd v Sargent [1999] CA

5 TUPE Is there a specific time period following a TUPE transfer after which an employer is able to make changes?

6 TUPE Dismissals or detrimental changes because of or connected to a transfer are unlawful Unless for ETO reasons entailing changes in w/f Harmonisation after transfer unlawful/auto unfair. Longer the period after transfer less likely to be causally connected London Metropolitan University v Sackur 2006 EAT held 2 years gap still connected Amended TUPE Regs Jan 14

7 TUPE Does the transferee have to consult the transferring staff?

8 TUPE Obligation to notify/consult appropriate representatives of own affected employees Transferee obligation to inform transferor of envisaged measures No obligation for transferee to consult with reps of transferring staff before (or after) transfer Although from a practical perspective need/desire to form and storm early UCATT v Amicus 2009 EAT Amended TUPE Regs Jan 14

9 Fixed Term Contracts Can an employer have a notice clause in a fixed term contract?

10 Fixed Term Contracts Fixed term contract expires on a certain date The employer can have a notice clause to terminate earlier Dixon v BBC 1979 CA

11 Changing Terms and Conditions Can an employer, subject to consultation, simply give notice to change terms of employment?

12 Changing Terms and Conditions The contract of employment is a legally binding agreement Can only vary within the terms of the contract or by agreement Unilateral variation is a breach of contract Notice to change is not the same as notice to dismiss and reengage on new terms Rigby v Ferodo Ltd 1988 HL

13 Collective Redundancy Consultation If an employer proposes 20/100 or more redundancies at one establishment within a 90 day period does the employer only have to consult for a maximum of 30/45 days?

14 Collective Redundancy Consultation S.188 of TULRCA 1992 sets consultation should begin in good time and at least 30/45 days before the first dismissal takes effect In essence consultation should last as long as it should last It is possible that consultation could be completed earlier or it may be completed later.

15 Deductions From Pay If by accident an employee is overpaid salary can an employer deduct the overpaid money from the next months pay without the employees written agreement?

16 Deductions From Pay May not make a deduction from wages or receive a payment from a worker unless: (a) authorised by statute or a provision of the contract and the term been set out in writing to employee; or (b) the worker has previously given in writing his agreement or consent to the making of it But one of the exceptions under s14 of ERA is where there is an overpayment of wages. But common law of restitution SIP Industrial Products Ltd v Swinn EAT 1994

17 Dismissal Is there a need to follow an Acas procedure or any company procedure in dismissing an employee with less than 2 years service?

18 Dismissal Less than 2 (1) years dismissal cannot claim unfair dismissal Acas code not a legal obligation Company procedure is it contractual But auto reasons, discrimination, company culture Evidential assistance

19 Dismissal When is the date of dismissal. Is it the date on the dismissal letter? Can it be retrospective?

20 Dismissal Dismissal if communicated verbally takes effect when received Dismissal by letter/ takes effect when received and there has been a reasonable opportunity of reading Gisda Cyf v Barratt [2010] CA

21 Pay in Lieu of Notice Can an employer lawfully pay money in lieu of notice as a gross payment?

22 Pay in Lieu of Notice Different forms of PILON PILON as contractual payment (s62 of ITEPA 2003) - tax and NI PILON as a payment of damages (s401 of ITEPA 2003) tax only over 30k

23 Termination Payments/Settlement Agreements Is there no need to deduct tax from any termination payment under a settlement agreement unless it is over 30k?

24 Termination Payments/Settlement Agreements Essentially 3 types of payment often made S 62 of ITEPA 2003 contractual payments S401 ITEPA 2003 non contractual payments S225 ITEPA 2003 restrictive covenants Non contractual and redundancy pay no tax unless over 30k Contractual and restrictive covenant payments taxed

25 Shield HR If you have any queries on the above or need advice on employment law give us a call If you want to sign up to our free employment updates me on robert.kerr@shieldhr.co.uk Shield HR Tel