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November's Employment Law update

Employment Law update

Welcome to this month’s employment Law update:

• The Qualifying Period for Unfair Dismissal
• Changes to State Pension Age
• Rest Breaks
• References
• Conditional Notice of Dismissal – When Does Termination Take Place?

The Qualifying Period for Unfair Dismissal

The qualifying period for unfair dismissal will increase from one to two years with effect from 1 April 2012.

In addition, fees will be introduced for tribunal claims from 2013, including fees payable by the claimant on issue and when the hearing is listed. The government has not yet confirmed the timescale for this, nor the level of the fees that will apply, however it is thought that the fees will be as high as £250 to start a case, and a further £1,000 when the case is listed for a hearing; a forthcoming consultation paper will give more details.

The introduction of fees will certainly deter some claims, particularly low value ones such as national minimum wage and working time claims. But it may also lead to a rush of claims being raised prior to fees being charged from April 2013.

Changes to State Pension Age

The Government is to slow down the proposed increase in the State Pension Age from 65 to 66 for both men and women. The pension age for women will still increase to 65 by 2018, as planned; however, the increase to 66 for both sexes will be put back 6 months to September/October 2020.

These changes will be tabled as an amendment to the Pensions Bill, currently passing through Parliament.

The below shows a revised table of the date that State Pension Age will be reached for the people most impacted by the changes – people born in 1953, 1954 and after.

Date of Birth	Date State Pension Age Reached (Men and Women)
6 November 1953 to 5 December 1953	6 November 2018
6 December 1953 to 5 January 1954	6 March 2019
6 January 1954 to 5 February 1954	6 May 2019
6 February 1954 to 5 March 1954	6 July 2019
6 March 1954 to 5 April 1954	6 September 2019
6 April 1954 to 5 May 1954	6 November 2019
6 May 1954 to 5 June 1954	6 January 2020
6 June 1954 to 5 July 1954	6 March 2020
6 July 1954 to 5 August 1954	6 May 2020
6 August 1954 to 5 September 1954	6 July 2020
6 September 1954 to 5 October 1954	6 September 2020
6 October 1954 to 5 April 1960	Your 66th birthday

Rest Breaks

The Working Time Regulations entitle a worker to twenty minutes uninterrupted rest when they work over six hours, and that where the worker falls into an excluded category, they must be allowed an equivalent period of compensatory rest.

The issue in Hughes v The Corps of Commissionaires Management Ltd was whether requiring a security guard (an excluded category) to remain on call during his rest breaks contravenes the requirements. If he had been called out during the rest breaks, he would not have enjoyed an “uninterrupted” break.

However, in this case, he was allowed to start his break again and the Court of Appeal held that because of that, the breaks provided to him were “equivalent periods of compensatory rest” noting that he might well end up with a break longer than the 20 minutes required by the Regulations.

References

Employers can incur liability if they fail to give an accurate reference about an ex-employee; but what should they do when new allegations come to light after employment?

In Jackson v Liverpool City Council, one of Mr Jackson’s three references from his former employer suggested that there were record keeping issues. Because these had come to light after Mr Jackson had left, they had not been investigated and could not therefore be substantiated, and this was made clear in the reference. He failed to get the job and was unemployed for a year.

The issue was: although the reference was true and accurate, was it unfair or negligent because Mr Jackson had not been given a chance to answer the allegations? No, according to the Court of Appeal. The reference was not negligent because it was made clear to the prospective employer that the issues raised about Mr Jackson were allegations only which had not been investigated.

The moral of the tale for departing employees is to try to agree your reference before you leave. For employers it must be that where there are questions over their performance or conduct or these arise after they have left, those issues should be disclosed accurately to any prospective employer, but making it absolutely clear that the allegations have not been investigated and so no assumptions can be made.

Conditional Notice of Dismissal – When Does Termination Take Place?

The exact date of dismissal can be very important. For example when calculating whether an employee has lodged a claim within three months of dismissal (which can determine whether or not the claim is allowed to proceed). As a result, considerable case law has grown up on what many think should be an obvious matter.

In Governing Body of Wishmorecross School v Balado, Ms Balado was disciplined and then told by letter (dated 21 July) that she would be summarily dismissed. The letter explained that her dismissal would only take effect if she decided not to appeal by a certain date, or her appeal was unsuccessful.

She believed that this was notice of dismissal and so her time for issuing a claim for unfair dismissal had been triggered. The school thought otherwise and on 21 October they told Mrs Balado that her appeal had failed and that dismissal was confirmed; her last day of employment being 26 October 2010. When she issued a claim on 14 October (believing the three month deadline about to expire) the School argued that her claim had been presented before the effective date of termination and so the tribunal had no jurisdiction.

The EAT disagreed. The effect of the July letter was as a “conditional dismissal” which terminated the employment as at an identified future date. Had an employee who had received such a letter been asked – have you been given notice of dismissal – the natural answer would be – yes. The letter was clearly notice of termination, and her claim was validly presented.

Ceridian’s small business HR Service includes an Employment Law service, provided by our partner, Ellis Whittam. For more information to help protect your business against claims, call our team on 0800 0482 737 or send us a message.