February 2011 Employment Newsletter | Davis Blank Furniss

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

Tribunal compensation limits increase on 1 February

Tribunal compensation limits will increase on 1 February 2011.  Having enjoyed a decrease in the maximum compensation limit last year, it now seems we are back to the usual annual increases.  The maximum compensatory award for unfair dismissal will rise from £65,300 to £68,400 and the maximum amount of a week’s pay, used to calculate statutory redundancy pay (among other things), will rise from £380 to £400.

Significant changes ahead for employment tribunals?

On 27 January 2011 the Department for Business, Innovation and Skills (BIS) launched a consultation on wide-ranging reforms to the employment tribunal system. In the main the proposals are aimed at encouraging early resolution of disputes without a hearing, speeding up the tribunal system, reducing the cost to taxpayers, and boosting economic growth.

The proposals include:

  • raising the qualifying period for unfair dismissal to two years,
  • introducing compulsory pre-claim Acas conciliation,
  • charging claimants a fee for issuing claims,
  • the limit on costs awards could be raised from £10,000 to £20,000, and
  • employers who lose at tribunal may face not only damages, but a fine of up to £5,000 payable to the Exchequer.

Shared parental leave: consultation due “in the coming weeks”

17 January 2011, the Deputy Prime Minister, Nick Clegg, announced that BIS will launch a consultation in the coming weeks on the design of a new flexible system of shared parental leave to be introduced in 2015. The consultation will also consider how best to extend the right to request flexible working to all employees.

He suggested that the proposed new system would transform the opportunities for fathers to take time off to care for their children, while maintaining a mother’s guaranteed right to time off after birth (paid as it is now). Parents might be able to share leave, splitting it between them, in whatever way suits them best. This may include taking leave in chunks rather than all at once if the employer agrees.

Acas guidance for employers on working without the Default Retirement Age

Following the government’s confirmation that the default retirement age (DRA) will be phased out over a transitional period running until 30 September 2011 Acas has published guidance for employers on managing both the transition stages and new procedures which can be found on their website www.acas.org.uk Further guidance on the impact of the retirement provisions will be provided at our Breakfast Briefing on Retirement on Thursday 17th February]. For further details and to book please click here.


Highlights of recent court and tribunal decisions include the following:

Countryfile presenter suffered age but not sex discrimination

An employment tribunal has held that a 51-year-old, female presenter of the BBC’s Countryfile programme, who was removed from the show when it moved from a daytime to a primetime slot, suffered discrimination because of her age but not her sex. The presenter’s age was a significant factor in the BBC’s decision to replace her and, although its wish to appeal to younger viewers was a legitimate aim, the removal of older presenters to pander to assumed viewers’ prejudices was not a proportionate means of achieving that aim. Further, the tribunal held that the BBC had victimised the presenter by denying her other work after she had made her discrimination allegations.

Dismissing an employee who had raised multiple false discrimination grievances was not victimisation

The EAT had some good news for employers when it decided that an employer did not victimise an employee when it dismissed her after she had raised multiple, false grievances alleging discrimination. Features of the complaints which led to the employer’s decision to dismiss, including their serious nature, the number of complaints made, the employee’s failure to accept they were as a result of her mental illness and the time and internal resources taken up dealing with them, and these were “properly separable” from their substance. Naturally all cases are decided on their facts and employers should take care and advice in these situations

Policy of making pub less attractive to gay customers amounted to discrimination against gay employee

The EAT has held that a policy of making a pub less attractive to gay customers constituted direct discrimination against a gay employee who was not comfortable with implementing such a policy. It also constituted a repudiatory breach of contract, entitling the employee to resign and claim constructive dismissal.

Transfer of confidential information and repudiatory breaches of contract

The High Court has held that an employee was in repudiatory breach of contract when she sent large amounts of her employer’s confidential information to her private e-mail address. She argued that she had done this in case she needed the documents to defend herself in the event of any litigation in the future. The court doubted that the possibility of litigation with an employer could ever justify an employee in transferring or copying confidential documents. It also considered that, in the absence of a specific issue, an employee would not be entitled to transfer confidential documents to protect their own position in the event of a regulatory dispute.

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                    Associate

Claire Reddington             Solicitor


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