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December 2008 Updates

Increase in compensation limits

The Government announced this month the annual increase in compensation limits for Tribunal awards. From 1st February 2009, the compensatory award for an unfair dismissal claim will rise from £63,000 to £66,200. A 'week's pay' for statutory purposes will rise from £330 to £350. The maximum redundancy payment will increase from £9,900 to £10,500.

Homophobic banter

The Court of Appeal held (in English v Thomas Sanderson Ltd.) that the Sexual Orientation Regulations protect a heterosexual man who is repeatedly tormented by homophobic banter when (i) he is not gay, (ii) he is not perceived or assumed to be gay by his tormentors and (iii) he accepts that they do not think he is gay. In this case, the banter was based on the fact that he lived in Brighton. This decision emphasises that the Sexual Orientation Regulations apply equally to heterosexual (and bisexual) people as they do to homosexual people. The decision also means that a claim can be brought for harassment on the grounds of sexual orientation even when the person making the comments knows the recipient is not of the particular sexual orientation suggested.

Age discrimination

In Seldon v Clarkson Wright & James, an Employment Tribunal heard a case dealing with a firm of solicitors which had a provision in its Partnership Agreement requiring partners to resign at 65. The Tribunal decided that, although this provision constituted age discrimination, it was justified, partly on an assumption that performance diminishes at around this age. This decision was appealed. The Employment Appeal Tribunal held, amongst other things, that the assumption that performance drops off at 65 was not supported by any evidence and involved stereotyping. In principle, such a rule could be objectively justified, but it was not justified in this case (i.e. it was not a legitimate aim which could justify the requirement to retire at 65).

Mistaken but genuine belief that TUPE does not apply

In Royal Mail Group Ltd v Communication Workers Union, the Employment Appeal Tribunal considered the obligations on employers to inform and consult with affected employees with regard to the effect of a proposed TUPE transfer. Importantly, the Employment Appeal Tribunal held that, where an employer is mistaken in its belief that TUPE does not apply, it will not automatically be in breach of its information and consultation obligations by failing to inform employees of the correct legal position.


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SRA number 404293