esther martin anna birtwistle susanne foster bettina bender cm murray llp 08 february 2011...

Esther MartinAnna BirtwistleSusanne FosterBettina Bender

CM Murray LLP

08 February 2011

Employment Law – Hot Topics

CM Murray LLP: Specialists in Employment, Partnership and Business Immigration LawCM Murray LLP: Specialists in Employment and Partnership Law

The Equality Act 2010 ______________________

Esther Martin

CM Murray LLP


Protected Characteristics

• Age • Disability• Gender reassignment • Marriage and civil partnership • Race• Religion or philosophical belief• Sex • Sexual orientation• Pregnancy and maternity


Direct Discrimination

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

s13(1)

• Perception

• Association


Indirect Discrimination

“A person (A) discriminates against another (B) if A applies a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”

s19(1)

• Includes disability / gender reassignment• PCP ‘puts, or would put … at a particular

disadvantage’ s19(2)


Harassment

“An employer (A) must not, in relation to employment by A, harass a person (B) – (a) who is an employee of A’s;(b) who has applied to A for employment.”

s40

• Harassment must be related to a protected characteristic, but not necessarily that of the victim

• Third party harassment


Victimisation

“A person (A) victimises another person (B) if A subjects B to a detriment because:(a) B does a protected act, or(b) A believes that B has done, or may do, a protected act.”

s27

• No comparator required


Pay secrecy clauses

Clauses designed to prohibit or restrict ‘relevant pay disclosures’ are unenforceable…

…if the discussion about pay is with a view to finding out whether there is a connection between pay and having (or not having) a protected characteristic.

s77


Disability Discrimination

Discrimination arising from a disability(1) A person (A) discriminates against a disabled person

(B) if – (a) A treats B unfavourably because of something

arising in consequence of B’s disability, and(b) A cannot show that the treatment is a proportionate

means of achieving a legitimate aim(2) Subsection (1) does not apply if A shows that A did not

know, and could not reasonably have been expected to know, that B had the disability.

s15

• No comparator required


Pre-employment health questionnaires

A potential employer must not ask about the health of an applicant before offering work

s60

• Burden of proof reversed if a disability discrimination claim is lodged

• Conditional offer can still be made• Exceptions


Exceptions – when discrimination may be lawful

• Occupational RequirementSchedule 9

• General Positive ActionS158

• Disability / Pregnancy / Ages13(3)/

S13(6)(b)/Schedule 9


Sections not yet in force

• Combined Discriminations14

• Gender Pay Gap Informations78

• Positive Action (recruitment and promotion)

s159


Practical considerations for employers

• Ensure all appropriate personnel are trained on relevant changes in discrimination law regarding employees, potential employees and ex-employees

• Audit standard employee documentation where necessary (e.g. contracts, staff handbooks, compromise agreements)

• Review policies (e.g. diversity, equal opportunities, anti-bullying and harassment)

• Ensure effective complaints procedures are in place


Default Retirement Age ______________________

Anna Birtwistle

CM Murray LLP


Default Retirement AgeWHAT IS CHANGING?

Employers will no longer be able to use the DRA of 65 to maintain a compulsory retirement policy for their workforce:

• Up to 6 April 2011: Transitional arrangements

• From 6 April 2011: No new notifications of retirement on basis of DRA to be issued

• 1 October 2011: DRA and statutory “duty to consider” retirement procedures will be abolished

WHAT ISN’T CHANGING?

Objective justification: Employers may still operate a compulsory retirement age except that from April 2011 they will need to objectively justify it (as they have up to now for retirement ages below 65)


Option 1: Having a Compulsory Retirement Age

1. Legitimate aim

- Workforce planning/succession- Facilitating the recruitment and

retention of younger employees- “Collegiality” - Increased costs e.g. pensions

and benefits

(Seldon v Clarkson, Wright & Jakes and another)

2. Proportionate

- Balancing act- Why that cut off point?- Criterion other than age?- Consistency?- Evidence


European Cases (Wolf, Peterson, Rosenbladt)

v

UK Cases (Martin, Hampton, Baker)

Option 2: Removing the Compulsory Retirement Age

• Follow a fair procedure and rely on one of the 5 other potentially fair reasons for dismissal:

– Conduct– Capability/Qualifications– Redundancy– Statutory restriction– “Some Other Substantial Reason”

• Change in corporate culture

• Adequate Performance Procedures

• Using appraisal process to discuss future plans

• Recruitment


Next Steps/Issues to Consider

Option 1: Retaining an EJRA

• Document how the Company has come to its decision

• Identify business needs and legitimate aim

• Compile evidence to show why that age has been decided upon and why other criterion cannot be used

• Consultation Exercise?

Option 2: No Retirement Age

• Adequate Performance Procedures and appraisals in place

• Consider flexible working arrangements

• Ensure line managers know how to deal with long term sickness absence


For all companies:

• Amendments to contracts of employment, staff handbook, pensions and share schemes (good leaver/bad leaver status)

• Training Requirements

• Provision of benefits

Team Moves ______________________

Susanne Foster

CM Murray LLP


Team Moves

• What is a team move?

• Why are team moves of concern?


Key Points

• Breach of express and implied contractual terms (e.g. no involvement in any other business, avoiding any conflict of interest etc)

• Directors, certain senior employees and partners are

fiduciaries to their employer/firm – very high standard applies

• Substantial liability for breach of fiduciary duties – account for profits etc

• Risk of liability for new employer (and recruiters) when facilitating a team move


Duties whilst a Director, Senior Employee or Partner

Duties of loyalty and good faith (implied and express)

Essentially the duty is to place your employer’s or firm’s interests before your own, including

– not to place oneself in position of conflict with co/firm

– not to make secret profit from your position

– render full information of all commercial opportunities and threats to business (including own misconduct)

– accountable to company/firm for any benefit received

– not compete, and if so, account for all profits


Key Challenges

• Confidential information

• Speaking to clients/customers about move

• Speaking to staff about move

• Diverting business opportunities

• Duty to tell employer about material changes


Garden Leave

• What is garden leave?

• Can be more effective than restrictive covenants

• Excluded from the office/market

• Prevented from speaking to clients/colleagues

• Additional restrictions e.g. re announcements

• Generally requires express provision, subject to reasonableness


Restrictive Covenants

• To protect legitimate business interests (e.g. trade connections and stability of workforce etc)

• Non-competition

• Non-solicit (customers, suppliers and staff etc)

• Non-dealing (customers and suppliers etc)

• Typically 3 – 12 months in employment context; 1 – 2 years in partnerships (separate body of case law in partnership context)


Breach of Duties/Restrictions

Rights, powers and remedies for (old) employer or firm, could include:

• summary dismissal or lock out of market by placing team move individuals on garden leave

• injunctive relief

• compensation

• full account to firm of profits unlawfully earned as a result of breach of fiduciary duties


Liability for New Employer

• Procuring and inducing breach of contract

• Conspiracy and/or unlawful interference with business or breach of confidence

• Account as potential trustee (fiduciary)


City Employee Team Moves

UBS Wealth Management (UK) Ltd v Vestra (2008)

- 75 employees defected from UBS to Vestra, effectively stripping UBS of key desks and personnel

- UBS alleged defections were orchestrated by a former senior UBS manager and senior managers still employed at UBS

- UBS applied for springboard injunction, pending full trial, to prevent Vestra from taking an unfair advantage of alleged breaches by former UBS staff

Held: Court granted UBS’ request for injunction pending trial, prohibiting inc: • Vestra from soliciting any existing employee to leave UBS; • Vestra from encouraging any client to transfer business; and• Former UBS employees from servicing transferred UBS clients in breach of

restrictions


UBS Wealth Management (UK) Ltd v Vestra (2008) (cont’d)

- “inherently unlikely” on evidence available that poaching raid coordinated solely by former manager, without breach of contract by senior managers

- Senior managers should have disclosed the planned poaching raids to UBS (especially as party to them in breach of duties of loyalty and fidelity)

- Former manager was entitled to start up a new business, recruit former colleagues and attract former clients of UBS (once restrictions expired),

- but was not permitted to encourage UBS senior employees to recruit others from UBS (this was unlawful conspiracy)

- It did not matter that UBS employees may have left UBS in any event

“secret plotting to go together en masse” was objectionable as unlawful


Other cases

• Tullett Prebon Plc and Ors V BGC Brokers LP and Ors (2010)

• Lonmar Global Risks Limited v West and Ors (2010)

City Employee Team Moves (cont’d)


Team Moves

• Hard to do without risk of breaches & liability particularly for the team but also the new employer

• Typical issues:– Requests to disclose confidential client/business

information– Speaking to colleagues– Speaking to clients and customers– Risk of procuring and inducing if new employer (or

recruiter) encourage breaches


Strategies & Tactics to seek to reduce risk if taking on a Team

• Advise team members to comply with duties and obligations

• Focus on lead team member and team/client loyalty

• If transfer must be as a team from the outset, keep team as small and as tight as possible

• Involve recruitment consultants:

1) to conduct and evidence research of team members and clients; and

2) approach and interview team members without lead team members’ input or involvement

• Consider length of notice, garden leave & restrictive covenants


• Consider existing business’ financial resources to service clients/customers

• Consider handling of previous team moves – exits and arrivals

• Ensure recruitment/appointment is not subject to team transfer

• Use of PR – new employer not usually restricted; but individual team members may be

• Remember that all documents and emails etc are disclosable unless privileged


Strategies & Tactics to seek to reduce risk if taking on a Team

Family Friendly Rights ______________________

Anna Birtwistle

CM Murray LLP


Key Changes to Family Friendly Rights

• Paternity Leave

• Extension to the Right to Request Flexible Working


Maternity leave

• OML: 26 weeks• AML: 26 weeks

Statutory Maternity Pay for 39 weeks:

• 1st six weeks paid at

“earnings related rate” (90% of her average earnings)

• Remaining 33 weeks paid at “prescribed rate” (currently £124.88, from April 2011 £128.73)

Ordinary Paternity Leave:

• Since 2003 eligible fathers

have been entitled to up to two consecutive weeks’ paternity leave and pay

• Statutory Paternity Pay: lesser of the “prescribed rate” and 90% of the employee’s weekly earnings

Additional Paternity Leave

Current Regime


Additional Paternity Leave Regulations 2010

• Applies to babies born/adopted on or after 3 April 2011

• Mother must have returned to work without using up all of her OML/AML

• The earliest APL can be taken is 20 weeks from the date of birth/date of adoption

• Minimum 2 weeks up to a maximum of 26 weeks• Eligibility requirements• Additional Statutory Paternity Pay


How this works in practice…

30 weeks

22 weeks

9 weeks

Total leave: 52 weeks

Total statutory pay: 39 weeks


Practicalities• Eligibility requirements

• Timing and notice

• Evidence of entitlement

• Effect on contract of employment

• Things to consider:

– KIT days– Pension Contributions– Enhanced company schemes

• What next?


Flexible Working• 2003: Right to request introduced and applied to carers of children

under 6

• 2009: Right was extended to apply to children up to and including the age 16

What’s changing?

• From April 2011 this right will be extended to parents of children up to and including the age of 18

What next?

• Coalition government has stated intention to extend the right to request to all employees regardless of whether they have children


• Right to request: It does NOT create a right to work flexibly!

• Typical requests

• Who can make a request– Mother, father, adoptive parent, guardian, foster parent and

spouse, civil partner or partner of the same– Adult carers– Employees only– No request in preceding 12 months

The Right to Request


Statutory Procedure• Request procedure

– 28 days– 14 days

• Right to be accompanied

• 8 Grounds of refusal:– Burden of additional costs– Detrimental effect on ability to meet customer demand– Inability to reorganise work amongst existing staff– Inability to recruit additional staff– Detrimental impact upon performance– Insufficiency of work during periods employee proposes to work– Planned structural changes

• Recourse to ET limited– Failure to correct procedure– Refusal outside of 8 statutory grounds– Rejection based on incorrect facts– Compensation: 8 weeks pay


The Agency Workers Regulations 2010

____________________

Esther Martin

CM Murray LLP


THE AGENCY WORKERS REGULATIONS 2010

• European Legislation: Temporary Agency Workers Directive 2008/104/EC

• Due to come into force 1 October 2011

• Coalition has confirmed no further amendments will be made


Who will the regulations apply to?

• “workers with a contract of employment or employment relationship with a temporary work agency who are assigned to user undertakings to work temporarily under their supervision and direction”

Article 1.1 – Temporary Agency Workers Directive


Twelve week qualifying period

“To complete the qualifying period the agency worker must work in the same role with the same hirer for 12 continuous calendar weeks, during one or more assignments.”

Regulation 7(2)

• Continuity can be broken or suspended in certain specific circumstances


Anti-avoidance provisions

• The Regulations contain a non-exhaustive list of factors to be taken into account in determining whether a structure of assignments is intended to deprive the agency worker of rights.

Regulation 9(5)

• Additional award of up to £5,000 where a hirer and/or agency are found to have breached the anti-avoidance provisions.

Regulation 18(14)


Agency Worker Rights

An agency worker (A) is entitled to:

“… the same basic working and employment conditions as A would have been entitled to for doing the same job had A been recruited by the hirer –

(a) Other than by using the services of a temporary work agency; and

(b) At the time the qualifying period commenced.”

Regulation 5(1)


Regulations only apply to “basic working and employment

conditions”o Payo Duration of working timeo Length of night worko Rest periodso Rest breakso Annual leave

• Comparator required• Terms must be ‘ordinarily included’


Pregnant women and nursing mothers

• Subject to the 12 week qualifying period• Agency workers are entitled to:

– reasonable time off during working hours to attend ante-natal appointments

– payment from employment agency during her absence

• She may lodge a tribunal claim if a request is unreasonably refused

• Duty to make reasonable adjustments on hirers


Access to employment, facilities and training

• No twelve-week qualifying period

• Failure to provide access to on-site facilities can be justified on objective grounds

Regulation 12(2)

• No further provisions required in relation to access to training.


Suggestions for agencies

and hirers

Useful questions:

1. Is the worker a temp from an agency?

2. Have they ever worked for you (or a connected business) previously?

3. Are they likely to qualify for equal treatment?

4. What should they be paid and what working time arrangements should be in place?

5. What else will have to be offered?


The Bribery Act ______________________

Anna Birtwistle

CM Murray LLP


The Bribery Act

• Comes into force April 2011 UNKNOWN (3 months from final guidance being published)

• Government guidance still awaited


Offences General Offences:

1. Paying bribes (“Active bribery”)

2. Receiving bribes (“Passive bribery”)

Specific Offences:

3. Bribery of foreign public officials

4. Failure of commercial organisation to prevent bribery: the “Corporate offence”


The Corporate Offence

• Company/partnership will commit bribery if: An “associated person” bribes another person for that organisation’s benefit.

• “Associated person”: employees, agents, subsidiaries, intermediaries, joint venture partners, suppliers

• Strict liability offence

• Territorial reach

• Corporate hospitality

• Defence: “Adequate procedures”

Key Differences with the US Foreign Corrupt Practices Act (“FCPA”):

• “Facilitation Payments”

• Defence illicit payment is lawful in the Country in which it was paid

• “Bona Fide reasonable expenses”


Adequate Procedures Defence

Current draft guidance, six principles:

1. Risk Assessment

2. Top level commitment

3. Due diligence

4. Clear, Practical and Accessible Policies and Procedures

5. Effective implementation

6. Monitoring and review


Consequences Of Non-Compliance

• Criminal sanctions• Fine• Fines from sector

regulators (e.g. FSA)• Debarred from

tendering for public-sector contracts

• Adverse publicity


Practical Tips

• Policies – anti-bribery, corporate hospitality and gifts

• Whistleblowing procedures to report bribery

• Training to relevant staff

• Assessment of risk

• Investigation procedures and disciplinary sanctions

• Appointing individual responsible for bribery issues


Clare Murray

Managing Partner

Bettina Bender

Partner

Charis Damiano

Consultant

Esther Martin

Associate

Anna Birtwistle

Associate

Susanne Foster

Senior Associate

The CM Murray LLP

Team


CM Murray LLP37th Floor

One Canada SquareCanary Wharf

London E14 5AA

+44 (0)20 7718 [email protected]

Twitter: @CMMurrayLLP


http://www.cm-murray.com/

mailto:[email protected]

esther martin anna birtwistle susanne foster bettina bender cm murray llp 08 february 2011...

Documents

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employment law hot topics

discrimination law

disabled person b

subjects b

aa treats b

protected act

indirect discrimination