Employment Law Newsletter – November 2011

Welcome to November’s edition of our employment law newsletter, keeping you up to date with forthcoming changes to legislation and case developments.

Change to unfair dismissal qualifying period

The Chancellor announced at the Conservative Party conference in October that the qualifying period for unfair dismissal will be increased from one year to two years with effect from 6th April 2012.  There has been no confirmation as to whether this will apply to existing employees.  The government estimates that the change will save businesses £6 million per year, and will reduce the number of Tribunal claims by 2,000 per year.

 Introduction of fees for Tribunal claims

The Chancellor has also announced that fees will be introduced in employment tribunals.  A consultation is due to be launched in November, and it is currently understood that fees will become payable from April 2013.  Although no official confirmation has been given, it is rumoured that the issue fee payable by claimants will be £250, with a listing fee of £1,000.  Higher fees may be put in place for claims with a high value.  Reports suggest that there may be a sliding scale for those on low incomes, or that an exemption will be provided for those who have no means to pay the fees.

“Protected conversations” and “unproductive workers”

Stories in the press in October have suggested that the government has plans for further changes in employment law.  Nick Clegg has suggested that business should be able to have frank discussions with their employees about retirement and their future with the business without fear of proceedings being issued.  A leaked government report has suggested that unproductive workers should lose their right to bring a claim for unfair dismissal.  The government have declined to comment officially but an insider has said that the proposals are ‘unlikely’.


Holiday entitlement and employees on sick leave

A Tribunal has held that employees who have been unable or unwilling to take their annual leave because of sickness should be allowed to carry over the full 5.6 weeks’ statutory holiday leave into the next leave year.  Adams and another v Harwich International Port Limited.

Reason for dismissal?

In Screene v Seatwave, the EAT has held that a dismissal can be fair by reason of conduct, even where the employer has pleaded capability as the reason for dismissal in the ET3 and at the Tribunal hearing, as long as there is no prejudice to the Claimant.

 Whistleblowing and vicarious liability

The Court of Appeal has held in NHS Manchester v Fecitt and Others that an employer cannot be held vicariously liable under the whistleblowing legislation where its employees victimise their whistleblowing colleagues.  Vicarious liability can only arise where an employee has carried out an unlawful act.

Mistaken termination

The Court of Appeal has held in CF Capital v Willoughby that an employer could not retract a termination notice which it claimed had been issued as a result of a misunderstanding.  The notice was clear and intended to terminate the employee’s contract.

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            Partner

Claire Smith             Associate Solicitor

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