Redundancy

Generally speaking, employers need to carefully plan redundancy exercises and be mindful of their consultation obligations. Consultation must begin in "good time", but what this means continues to raise questions. This month the European Court of Justice (ECJ) will begin hearing a Finnish reference seeking clarification in a scenario where a parent company was considering a redundancy programme, but it had not taken concrete form and no decision had been made about whether redundancies would take place at a specific subsidiary company.

TUPE

The credit crunch will trigger plenty of downsizing, business sales and mergers which could give rise to TUPE issues. Claims under TUPE 2006 will continue to work their way through the tribunal system. We expect to see developments regarding service provision changes and the particular difficulties encountered when an outsourcing is reorganised and dispersed across a different number of contractors.

The Scottish Employment Appeals Tribunal (EAT) has also recently held that TUPE does not oblige a transferee employer to consult its new employees over measures it proposes to take in relation to them after the transfer has taken place.

How the insolvency provisions within TUPE 2006 will help promote a "rescue culture" will also no doubt be tested in the current difficult economic climate. Key provisions of TUPE (the transfer of contracts of employment and the restrictions on dismissals connected to the transfer) do not apply where the transferor employer is the subject of “bankruptcy proceedings or any analogous insolvency proceedings which have been instituted with a view to the liquidation of the transferor and are under the supervision of an insolvency practitioner”.

In contrast to earlier published government guidance, the Employment Appeal Tribunal has recently ruled that a company in administration can be exempted from TUPE where the administration is being conducted as a pre-cursor to liquidation, rather than in preparation for the sale of the business as a going concern, though this will depend upon the specific purpose of the administration in question.

Discipline & Grievances

6 April 2009 sees the wholesale repeal of the statutory dismissal and disciplinary procedures. Those of you who have grappled with the practical application of the procedures will no doubt welcome the removal of mandatory uplifts in compensation, the automatic unfair dismissal sanction and perhaps the most unsatisfactory aspect of the procedures, playing "spot the grievance".

The Employment Act 2008 got royal assent on 13 November last year. In addition to repealing the procedures, the Act will remove the provisions relating to procedural unfair dismissal, but will also give employment tribunals a discretion to increase or reduce awards by up to 25% where either side unreasonably fails to comply with the new ACAS Code of Practice.

So how will this impact? The soon to be repealed procedures will no doubt continue to keep tribunals busy for some time yet! (Not least because they will still apply to internal processes which began before 6th April 2009)

For background, take a look at the new ACAS Code of Practice and Guidance . Of course, if you need any further guidance or advice please feel free to contact us.

Sickness Absence

With the early part of the year being the busiest time for processing holiday forms it is worth keeping an eye on the long running saga on whether employees on long term sick leave are entitled to paid holiday leave (at the moment the Court of Appeal has said no, but how long is "long-term"?) and how far back claims for accrued holiday on termination can go (at the moment limited to the last leave year) continues to rumble on.

The European Court has recently ruled that employees continue to accrue their legal minimum entitlement to paid holiday whilst absent through long-term illness, although they cannot take that holiday until they return to work, even if that means carrying over that leave into a new holiday year.

In June the ECJ will also be considering another variation on this theme. The Spanish courts have asked whether an employee who has booked holiday leave, and then unable to take it due to a short-term injury, can carry over that leave into a subsequent holiday year.

Employers do now have to factor in increased costs in managing those on long-term sick leave. On the face of it this looks like it would be good news for those on long-term sick leave, although it may lead to the quicker dismissal of those on long-term leave or a reduction in generous sick pay entitlements to offset additional holiday cost.

The (notoriously inexact) rules on whether it is fair to dismiss an employee on the grounds of long-term incapacity for work have not changed – so we would strongly recommend that any employer should seek independent legal advice before taking this dramatic step.

Family Friendly

From 6 April 2009 the right to request flexible working will be extended to parents of children aged 16 and under. Currently, the right is restricted to parents of children under six (or disabled children under 18), and carers of adult (18+) dependants. So all employees with dependant caring responsibilities will have the right to request flexible working? Not quite. For some strange reason the government has excluded carers of dependants aged 17 who are not disabled but may need care!

In 2009 we should get more detail of European proposals to increase the period of compulsory maternity leave to six weeks. This will impact employer bonus schemes. While employers generally can reduce pro rata a contractual bonus for absence due to maternity leave, this is not the case for the period of compulsory maternity leave (currently two weeks in the UK ). In June we should also have the outcome of the European Commission's (rather appropriate) nine months review of parental leave.

However, for 2009, what is not happening is of more interest. The plans to extend statutory maternity pay to 52 weeks and introduce additional paid paternity leave effectively allowing both parents to share the maternity leave period have been delayed. The earliest possible is now April 2010...

Cyberspace

With the explosion in usage of social networking sites it is highly likely they will start to feature in employment disputes. You should be looking into the use of these sites at work and whether they are address in you employment contracts.

Issues that could crop up include:

• disgruntled employees publishing damaging comments.
• confidential contact lists being disclosed.
• Facebook entries contradicting sickness claims.
• Cyber-bullying.

And last but not least some 2009 facts and figures for you…

Holidays: from 1 April 2009, the final staged increase in statutory holiday entitlement up to 5.6 weeks (being 28 days for someone working a five or more days a week) comes into force, although bank and public holidays may count towards this entitlement. At this time the transitional provisions allowing "buy out" of the statutory days above 4.0 weeks also come to an end.

Statutory Maternity Pay: from 5 April 2009, the standard rates of statutory maternity, paternity and adoption pay increases to £123.06 per week.

Statutory Sick Pay: from 5 April 2009, the standard rate of statutory sick pay increases to £79.15.

Tribunal Awards: from 1 February 2009 the annual increase in tribunal award limits apply including:

• a week's pay - £350
• maximum basic award/stat redundancy payment - £10,500
• maximum compensatory award - £66,200

Note: The new rates apply where the 'appropriate date' occurs on or after 1 February 2009 and not the date of the corresponding tribunal hearing.