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News & Blog

March 2011 – Employment Newsletter

Welcome to March’s edition of our employment law newsletter, keeping you up to date with changes to employment law, and informing you of recent case law developments.

Employment Equality (Repeal of Retirement Age) Regulations

The long awaited draft Regulations dealing with the removal of the Default Retirement Age with effect from 1 October 2011 have finally been released by the Government.  In brief, the Regulations deal with the following:

  •  The current legislation which makes a retirement dismissal fair providing that the correct procedure has been followed, will be abolished from 6 April 2011.
  • The final date for issuing a notice of retirement under the current regime is therefore 5 April 2011.
  • The draft Regulations confirm that an exemption will be provided to enable employers to avoid providing insurance benefits to the over 65s.

 The anomaly contained in the first draft of the regulations has been corrected by a second draft set of regulations, which confirm that employees can be lawfully retired provided that notice of intention to retire is given before 5 April 2011, and the employee has attained, or will attain, the age of 65 by 30 September 2011.  The draft regulations also provide a stop date of 5 January 2012 for an employee to exercise their right to request working beyond retirement, enabling an employee who is given 12 months’ notice of intended retirement on 5th April 2011 to exercise their right to request working beyond their intended retirement date.

 The final version of the regulations is expected to be published shortly, and we will provide a further update at that time.

 Right to Request Time Off for Training

Since April 2010, the employees of organisations with more than 250 staff have had the right to request time off to undertake training.  This right was due to be extended to all employees with effect from 6 April 2011.  Following a consultation, the government have announced that this will be delayed, in order that further consideration can be given to the impact which the changes would have upon smaller businesses.

Right to Request Time Off for Training

Since April 2010, the employees of organisations with more than 250 staff have had the right to request time off to undertake training.  This right was due to be extended to all employees with effect from 6th April 2011.  Following a consultation, the government have announced that this will be delayed, in order that further consideration can be given to the impact which the changes would have upon smaller businesses.

Corporate Manslaughter

The first corporate manslaughter trial has been concluded, with Cotswold Geotechnical (Holdings) Limited being found guilty.  The prosecution related to the death of a geologist in September 2008 whilst he was collecting soil samples from the bottom of a deep trench on a building site.   The company was fined £385,000 following its conviction.

Immigration Cap

The government has released a statement of intent in relation to proposed changes to the immigration process.  Under these changes, workers earning £150,000 or more will be excluded from the immigration cap, as will those coming to the UK via an intra-company transfer who earn £40,000 or more and hold a graduate level occupation. 

CASE DEVELOPMENTS IN FEBRUARY

Seldon v Clarkson, Wright & Jakes

The Supreme Court have granted permission for an appeal to be brought against the Court of Appeal’s decision in this case, in which it was held that a retirement age of 65 for partners of a law firm was not discriminatory as it could be objectively justified.  We will provide a further update when the appeal has been heard.

TUPE

The EAT held in OTG Ltd v Barke and others that the TUPE Regulations will apply to sales by administrators (even in a pre-pack administrations), meaning that all employees will transfer to the buyer and have special protection against unfair dismissal.

Unfair Dismissal

In Orr v Milton Keynes Council, it was held that an employer cannot be held to know all facts known to its employees when making a decision to dismiss.  It is only the decision maker whose knowledge or state of mind is relevant, provided that a fair and thorough investigation has been undertaken.

Apprenticeship v Contract of Service

In an EAT decision, an employee who received on the job training and attended college on day release was held to be employed under a contract of apprenticeship and not a contract of service, despite the fact that the parties had not used the word ‘apprenticeship’ in any contractual documents.  The relationship between the parties in Chassis & Cab Specialists Ltd v Lee had the purpose of providing the worker with training, and had the essential characteristics of apprenticeship.

Theft by employees

An employee who was cautioned by the police after he admitted stealing £845 from his employer has been awarded £13,000 by the Court, who ordered his former employer to pay this sum by way of damages for humiliation, after his employer marched him to the police station upon discovering the theft with a sign around his neck which read, “Thief.  I stole £845.  Am on my way to police station”.

If you require any further clarification in relation to the above developments, or if you need any other assistance then please do not hesitate to contact our team of specialist employment solicitors on 0161 832 3304:

Shiva Shadi                      Partner

Anna Bunting                   Associate

Claire Reddington            Solicitor

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