Page 1

Labour Law Highlights 2013 by Rebecca Tuck, Betsan Criddle & Stuart Brittenden

8096 Labour Law Highlights 13.indd 1

18/09/2013 15:47


Rebecca Tuck is a barrister at Old Square Chamber specialising in employment law. She is a fee paid employment judge, co-author of Employment Tribunal Procedures (LAG) and a contributor to Harvey on Industrial Relations and Employment Law. Her practice encompasses all areas of employment law, and she has a particular interest in discrimination cases. Betsan Cridle is a barrister at Old Square Chambers specialising in employment and discrimination law. Her particular areas of expertise are disputes involving doctors, whistleblowing and pregnancy and maternity discrimination. She is co-author of Employment Tribunal Procedures (LAG, 2004) and a contributor on employment tribunal procedures to Employment Precedents and Company Policy Documents (Sweet and Maxwell).

ISBN 978-1-906703-21-9 October 2013 published by the Institute of Employment Rights 4th Floor, Jack Jones House, 1 Islington, Liverpool, L3 8EG e-mail office@ier.org.uk www.ier.org.uk Design and layout by Upstream (TU) www.upstream.coop

Stuart Brittenden is a barrister at Old Square Chambers. He is employment law specialist with experience in all aspects of individual and collective employment law. He is ranked in both Chambers & Partners and Legal 500, with the former commending him for being ‘bright and engaging’ and impressing clients for his ‘responsiveness, pragmatism and thorough preparation.’ Prior to joining Chambers, Stuart attained a Masters in Labour Law at the London School of Economics (LSE). He has also lectured in Labour Law at the LSE and contributes to a number of publications including Tolley’s Employment Law and Munkman on Employer’s Liability. This publication, like all publications of the Institute, represents not the collective views of the Institute but only the views of the authors. The responsibility of the Institute is limited to approving its publications as worthy of consideration within the labour movement.

Printed by The Russell Press (www. russellpress.com) £8 for trade unions and students £30 others

8096 Labour Law Highlights 13.indd 2

18/09/2013 15:47


labour law highlights 2013

Resisting ‘Union-Busting’ and ‘Strike-Breaking’ in the BA Dispute

by Rebecca Tuck, Betsan Criddle & Stuart Brittenden

i

8096 Labour Law Highlights 13.indd 1

18/09/2013 15:47


contents

introduction

1

industrial action 3 collective agreements

3

union recognition

4

pay and other terms and conditions

5

vicarious liability breach of contract pay

labour law highlights 2013

employment rights Working Time Regulations Agency Workers Regulations protected disclosures transfer of undertakings unfair dismissal territorial jurisdiction redundancy (individual) collective redundancies non-discrimination remedies

5 6 8

9 9 11 12 13 17 18 18 19 20

ii

8096 Labour Law Highlights 13.indd 2

18/09/2013 15:47


equality protected characteristic prohibited conduct

21 21 22

indirect discrimination

22

making reasonable adjustments

22

victimisation 23 harassment 24 24 scope of protection of Equality Act equal pay 25 discrimination remedies 27

28

employment tribunal procedure

30

endnotes

34

labour law highlights 2013

human rights

iii

8096 Labour Law Highlights 13.indd 3

18/09/2013 15:47


labour law highlights 2013

iv

8096 Labour Law Highlights 13.indd 4

18/09/2013 15:47


labour law highlights 2013 introduction

July 2013 saw the introduction not only of new Employment Tribunal Rules of Procedure, but significantly of fees in the employment tribunal. For ‘type B cases’ which includes unfair dismissals and all discrimination claims – the issue fee is £250 and listing fee (to get to a hearing) is £950 – with a fiendishly complicated fee remission system. (A judicial review challenge to the fees by UNISON is outstanding at the date of writing). At the same time, the maximum award for unfair dismissals has been altered to the lower of £74,200 or 52 weeks pay – so for most a significant lower maximum. The power to make alterations to the level of compensatory awards was one of a number of provisions relevant to employment law, contained in the Enterprise and Regulatory Reform Act 2013 (‘ERRA’) which came into force on 25 June 2013. This act also provides for mandatory pre-claim ACAS conciliation, and that ‘whistleblowing’ has to be in the ‘public interest’ to attract protection, and where disclosures are made in bad faith, compensation can be reduced. The ERRA removes the qualifying period previously needed before a complaint could be made of dismissal for having a particular political opinion or affiliation – following the judgment of the ECHR in the Redfearn case where the UK was held to be in breach of Article 11 of the European Convention on Human Rights. The Equality Act (EqA) has been amended to remove the right to complain against employers of repeated instances of third party

labour law highlights 2013

2013 saw, at last, a glorious summer, and apparently as a nation we started to stagger out from beneath the economic black clouds which have been overhead for the past few years. This does not however seem to have translated into good news for most ‘employees’ with hourly paid wages having fallen 5.5% since 2010 in the UK, and unemployment remaining at 7.8%. For those in work, 2013 has seen a raft of legislation impacting on employment rights – little of which is likely to be to the benefit of employees!

1

8096 Labour Law Highlights 13.indd 1

18/09/2013 15:47


harassment, and the statutory questionnaire procedure has been repealed. Caste discrimination is however to be covered by the EqA following the ERRA. Next year is likely to be no quieter. The consultation in relation to what the government considers to be ‘gold plated’ TUPE provisions reported in early September and a ‘review’ of the increasing use of zero hours contracts is due to report later this month. It has been noted that those on zero hours contracts receive, on average, £6 per hour less than other workers. Whether any meaningful protection or improvement in conditions results from this review awaits to be seen. The draft Deregulation Bill meanwhile provides for the removal of the power for tribunals to make recommendations in discrimination cases. We live in interesting times, and I am grateful as ever to my coauthors (and especially the one who finished her sections at 8½ months pregnant!) in seeking to navigate through some of the major developments in employment law during the last 12 months.

labour law highlights 2013

Rebecca Tuck Old Square Chambers September 2013

2

8096 Labour Law Highlights 13.indd 2

18/09/2013 15:47


About the Institute The Institute of Employment Rights seeks to develop an alternative approach to labour law and industrial relations and makes a constructive contribution to the debate on the future of trade union freedoms. We provide the research, ideas and detailed legal arguments to support working people and their unions by calling upon the wealth of experience and knowledge of our unique network of academics, lawyers and trade unionists. The Institute is not a campaigning organisation, nor do we simply respond to the policies of the government. Our aim is to provide and promote ideas. We seek not to produce a ‘consensus’ view but to develop new thoughts, new ideas and a new approach to meet the demands of our times.

IER officers President Chair Treasurer Director

Professor Keith Ewing John Hendy, QC Geoff Shears Carolyn Jones

For more information and a full list of IER members visit www.ier.org.uk The Institute of Employment Rights 4th Floor Jack Jones House 1 Islington Liverpool, L3 8EG Tel: 0151 207 5265 Email: office@ier.org.uk Twitter: @ieruk

8096 Labour Law Highlights 13.indd 37

18/09/2013 15:47


This 2013 edition of our Labour Law Highlights annual series, starts with the stark recognition that ‘For those in work, 2013 has seen a raft of legislation impacting on employment rights – little of which is likely to be to the benefit of employees!’ Against the backdrop of failing austerity measures which continue to insist on cuts in wages, pensions and public sector jobs, the authors outline the main statutory changes to labour law imposed through legislation or administrative measures over the previous 12 months. The short report exposes the contents of the Enterprise and Regulatory Reform Act, detrimental amendments to the Equality Act, proposed changes to the TUPE Regulations and likely problems associated with the draft Deregulation Bill. The authors, all barristers at Old Square Chambers, reference over 65 of the leading judicial decisions of the year, tracking the twists and turns on issues collated under 8 main headings – industrial action, collective agreements, union recognition, pay and terms and conditions, employment rights, equality, human rights and employment tribunal procedures.

£8 for trade unions and students £30 others

8096 Labour Law Highlights 13.indd 38

18/09/2013 15:47

Preview labour law highlights 2013  

An update on employment law and highlights of cases this year that reflect the change in the labour law landscape under the Coalition govern...

Read more
Read more
Similar to
Popular now
Just for you