Details are now being released on the forthcoming changes in employment law.
Unfair dismissal qualifying period: increase to two years will only affect new joiners
On 6 April 2012 the qualifying period for unfair dismissal will increase from one to two years. However when the government announced this change on 3 October 2011, it gave no indication how this change would affect existing employees (who may already have qualified for unfair dismissal rights).
Although a formal announcement is still awaited, it is likely that, subject to Parliamentary approval, the new two-year qualifying period will only apply to employees whose employment begins on or after 6 April 2012. Those who are already in employment before that date will retain the current one-year qualifying period.
UK to implement revised parental leave directive in March 2013
In March 2010, the EU Council of Ministers adopted a new Parental Leave Directive to increase parental leave entitlement from three to four months. EU member states had two years to implement the Directive into national law, although the Directive allowed member states an additional period of one year to implement it, if necessary to take account of particular difficulties. Following a review of parental leave undertaken as part of the Consultation on Modern Workplaces, the government has indicated that it will make use of this additional year to implement the Directive moving the increase in parental leave to March 2013, rather than March 2012.
DWP releases revised timetable for auto-enrolment staging dates
The DWP has issued a revised timetable of staging dates for auto-enrolment which contains details of a delay in implementing staging dates for "small businesses" proposed on 28 November 2011 by the pensions minister, Steve Webb. All employers with an existing auto-enrolment staging date on or before 1 February 2014 will be unaffected. Medium-sized employers will be re-allocated staging dates between 1 April 2014 and 1 April 2015 and small employers will be allocated staging dates between 1 June 2015 and 1 April 2017. A consultation document setting out the detail of these changes, will be published shortly, together with draft regulations.
Recent Cases
Overtime ban not necessarily unlawful – Arriva London South v Nicolaou
Mr Nicolaou was a bus driver. He'd refused to opt out of a 48-hour week under the Working Time Regulations but was used to working overtime on days which were designated as rest days. Arriva introduced a policy which said that any employee who had not opted out of the 48-hour week wasn't allowed to work overtime on rest days.
Nicolaou claimed that, because he would never be working more than 48 hours averaged over 26 weeks, he couldn't be penalised by not being allowed to work on rest days. But the Employment Appeal Tribunal found against him. It said that the reason Arriva didn't allow him to work on rest days was not because he had refused to sign the opt-out. It was in order to implement a reasonable policy and to make sure that the Working Time Regulations were being complied with.
Marital discrimination – okay, so you don’t like the husband but that shouldn’t affect how you treat the wife – Dunn v Institute of Cemetery and Crematorium Management
Mrs Dunn raised grievances about changes to contractual sick pay provisions in her contract. Her grievances were rejected and during the appeal process, the company's chief executive made mention of Mrs Dunn's husband (who worked for the same employer) and his out-of-work activities and other behaviour. Mrs Dunn's appeal was rejected and her role was proposed for redundancy. But before the redundancy process was in full swing she resigned, claiming constructive dismissal. She also claimed victimisation under the (then) Sex Discrimination Act – her case was that her employer wanted to make her redundant because she was married to Mr Dunn.
Up to this point, there had really only been protection from discrimination which related to marital status, in other words the fact that a person was or wasn't married. The tribunal held that Mrs Dunn had only been treated less favourably because she was married to Mr Dunn, rather than because of her married status. Her dismissal was held to be unfair but her discrimination claim failed.
This changed on appeal. The Employment Appeal Tribunal held that the marital status provisions cover discrimination based on marriage to a particular person, and not just being married (or not being married, as the case may be).
And Finally…Update on BGT at the EAT
Last year we brought you news of a contestant bringing an employment claim against Britain’s Got Talent. Ms Czikai claimed discrimination, saying that the show had failed to make reasonable adjustments for her disability and that broadcasting her audition amounted to harassment because of the negative attention she suffered as a result.
To be successful in her claim she had to show that the discrimination had been at the hands of a prospective employer. So did participating at an audition count as a job application? The Employment Appeal Tribunal held that an audition was not a job application. The purpose of auditioning was to progress in a competition. Ms Czikai chose to go to the audition and there was no mutual obligation between the parties. The EAT went on to say though that had she become part of the programme's roadshow and been contractually obliged to perform then that would have amounted to employment for discrimination purposes.
Ms Czikai’s claim failed.
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