Hot Issues In Employment Law - New Case Law

This session will look at the implications of the Government’s plan to phase out the default retirement age. It will also review a spate of recent age discrimination judgments from the European Court of Justice and at Homer v Chief Constable of West Yorkshire, the first Court of Appeal authority on indirect age discrimination.

In the Fujitsu case, the European Court of Justice set out guidance on when the obligation to consult in advance of redundancies is triggered. Whether there is an obligation to consult over the reason for a workplace closure is the subject of the Court of Appeal’s decision in USA v Nolan.

What are the boundaries of protected "philosophical belief" after the EAT’s decision in Grainger v Nicholson? What are the implications of the Court of Appeal’s judgments in Ladele v London Borough of Islington, Eweida v BA and McFarlane v Relate Avon?

Guidance on key issues has been laid down by the EAT in recent months. Cavendish Munro v Geduld explores what is a "disclosure", while BP v Elstone looks at whether a disclosure made before employment began is protected.

The Equality Act makes important changes to equal pay law, but meanwhile the torrent of cases continues with the EAT considering what is "the same employment" in City of Edinburgh v Wilkinson and the Court of Appeal reviewing the employer’s material factor defence in Gibson v Sheffield City Council.

The Equality Act largely bans pre-employment health inquiries. What questions can now be asked of job applicants? How do you ask the right medical expert the right questions? What is the impact of the new Fit Notes regime on reasonable adjustments and getting employees back to work?

The Equality Act makes pregnancy and maternity protected characteristics and changes the definition of pregnancy discrimination. New paternity leave provisions will apply to parents of children born from April 2011. O’Neill v Buckinghamshire County Council provides guidance on risk assessment of a pregnant employee.

The 2010 Regulations give temporary agency workers after 12 weeks in a given post the right to the same basic working and employment conditions, including pay, working time, rest breaks and annual leave, as those employed directly by the end-user. How is the new system likely to work?

The Equality Act extends employer liability for third party harassment. Recent cases such as Veakins v Keir Islington, Rayment v Ministry of Defence and Marinello v City of Edinburgh Council have taken a broad view of the Protection from Harassment Act.

Issues relating to holiday entitlement continue to dominate the case law. How are tribunals post- Stringer treating carrying forward holiday when a worker has been sick? What happens where an employee has not complied with holiday notice requirements? What is the holiday entitlement of full-time workers who become part-time?

The Equality Act enhances the ability of tribunals to make action recommendations where a discrimination claim is upheld. What can go into an action recommendation, what is the relationship with compensation, and how are recommendations backed up?

The meaning of this central implied contractual term continues to be explored by the appellate courts in recent judgments such as Buckland v Bournemouth University and Aberdeen City Council v McNeill.

Since our last conference, there have been more important cases on employment status, including Autoclenz v Belcher and Protectacoat Firthglow v Szilagyi on sham contracts, and X v Mid Sussex CAB on the status of volunteers.

Connor v Surrey County Council is the latest Court of Appeal judgment interpreting the guidelines on workplace stress set out in Hatton v Sutherland. Where does the law now stand?

The European Court’s decision in the Kücükdeveci case resurrects the controversial Mangold judgment and holds that national courts have a duty to disapply any provision of national legislation contrary to the principle of equal treatment. Where does Kücükdeveci leave the distinction between public and private sector employees?

Team moves are the hot issue this year in this area. The High Court’s holding in Tullet Prebon v BGC Brokers that a team of brokers were bound by post-contractual restrictions and a poaching raid was unlawful is just one of a number of interesting new cases.

What is "confidential" information? How can employers restrict disclosure of confidential information by employees and former employees and what are their remedies against disclosure of information? What access do employees have to information held by employers about them?

What are the practical implications for employers of the recent spate of cases on the lawfulness of strike action such as BA v Unite, Metrobus v Unite and EDF Energy v RMT? What strategies are employers and trade unions now likely to pursue?

In Gibb v Maidstone NHS Trust, the Court of Appeal considers when a compromise agreement can be held to be unenforceable because the employer acted outside its powers. In Industrious v Vincent, the EAT ruled that a compromise agreement can be set aside because of misrepresentation.

Human rights principles based on the European Convention are increasingly influencing interpretation of employment law issues. The recent case law on whether there is a right to legal representation during internal disciplinary proceedings is just one example.

Bankers’ bonuses have led to a spate of new case law on varying contracts of employment such as Khatri v Cooperative Centrale Raiffeisen- Boerenleenbank and the Dresdner Kleinwort litigation. Bateman v Asda Stores examined an open-ended variation clause.

Cases interpreting the new definition of a TUPE transfer are now making their way through the appellate courts. This session will look at retention of identity in the context of a service provision change and at issues arising on the splitting/fracturing of contracts.