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December 2012 Updates

A criminal compromise

The Court of Appeal has decided that a legal fee provision in a compromise agreement could require an employer to cover a former employee's reasonable costs and expenses for defending criminal allegations, including those of personal misconduct.

The High Court had previously ruled that costs would have been limited to the lawful responsibilities of the employee's post. The Court of Appeal decided that, so long as the allegations related to how the employee had gone about the performance of his job, they were payable by the employer.

The Court of Appeal stressed that this would not apply to criminal allegations which were unrelated to the employee's job. Additionally, costs must have been said to be "properly incurred", which means that the parties' knowledge at the time the agreement was entered into will be taken into account.

A UK Bill of Rights? The choice before us

On 18 December 2012, the Commission on a Bill of Rights published its report, A UK Bill of Rights? The Choice Before Us. The Commission was launched in March 2011 to investigate the introduction of a UK Bill of Rights and was required to report on its findings by the end of 2012.

Seven members of the Commission (including the Chair) supported the creation of a UK Bill of Rights, with only two members arguing that the Human Rights Act 1998 as it stands does not need to be replaced.

However, the report ultimately concludes that now is not the right time to introduce such a Bill. It also maintains that, above all, the introduction should be the decision of the government and Parliament, not the Commission itself. Perhaps this comes after 60% of consultation respondents were in favour of retaining the existing Human Rights Act.

Changes to collective redundancy

The government has announced planned changes to the collective redundancy consultation rules. Where 100 or more employees are affected, the 90 day minimum period before the first redundancy can commence would be reduced to 45 days.

In addition to this, a new Acas non-statutory Code of Practice is due to be introduced. This will provide guidance on the meaning of "establishment".

There are also plans to introduce new legislation, which will exclude employees from redundancy consultations if they are on fixed term contracts which are due to expire.

These changes are due to come into force on 6 April 2013. There will not be any changes to collective redundancy information and consultation rules when there are fewer than 100 employees involved.

Anti-social networking

In Novak v Phones 4U Ltd, the Employment Appeal Tribunal decided that posts about an employee on Facebook could be part of a "continuing act" for the purposes of discrimination law, because the posts were sufficiently close together in terms of time, as well as being linked by subject matter, and the people involved.

The case has raised the question of whether leaving a "dormant" post on a Facebook page could amount to a continuing act. It also allows a much greater scope for a Claimant to argue a continuing act even in cases where a post has been commented on or "liked" some time after its original posting.

This suggests that, if an employer becomes aware of a similar sort of Facebook activity, it would be sensible for them to insist that the post is immediately removed.

Some seasonal advice ? weather conditions

Due to adverse weather conditions, employees may struggle to get into the workplace in the winter, particularly if they are facing a commute.

Employers can assist by providing flexible working hours where possible so that employees can avoid peak travel times, or providing remote access and conducting virtual meetings.

Looking ahead into 2013

Many of the government's plans to reform employment law are due to come into force in 2013. The employee owner status initiative is due to come into force in April 2013, and new fees in the Employment Tribunals are due to come into force in the summer.

In addition to this, the Enterprise and Regulatory Reform bill is due to be introduced in late 2013. It is expected to bring in wide ranging reforms, including financial penalties for employers that breach employment rights and the removal of automatic employer liability for damages in health and safety cases, hopefully ending the "no win, no fee" claim culture. In light of such reforms, it is likely that the Tribunal rules will be updated to reflect them.

Changes to apprenticeship legislation

The Apprenticeships, Skills, Children and Learning Act 2009 (Consequential Amendments to Subordinate Legislation) (England and Wales) Order 2012 is due to come into force on 9 January 2013. The Order amends two sets of Regulations as follows:

  • Individuals employed under apprentice agreements will be entitled to the same apprentice rate of national minimum wage as those employed under contracts of apprenticeship.
  • The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 currently only apply to employees engaged under apprenticeship agreements, since Regulation 20 excludes those engaged under a contract of apprenticeship. The Order amends Regulation 20 so that the protections granted by the regulation do not apply to apprenticeship agreements.

Apprenticeship agreements and contracts of apprenticeships are both forms of agreement under which an apprentice can be engaged to work for an employer. The main difference is that, under a contract of apprenticeship, the employee would receive enhanced protection against dismissal.


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