by Laurie Anstis on January 8, 2012
Last year I set out what I thought would be the top 5 employment law issues for 2011. Here’s what I think will be important in 2012:
1. Abolition of the default retirement age/age discrimination
The abolition of the default retirement age was my number one issue for 2011, and it is still my number one issue for 2012, but now combined with more general issues of age discrimination.
The number of age discrimination claims exceeded the number of race discrimination claims for the first time last year, and are now second only to sex discrimination and disability discrimination. I think the number of age discrimination claims will exceed the number of disability discrimination claims this year.
The extent to which age discrimination will have an impact in the future is likely to depend heavily on the outcome of two cases due to be heard together by the Employment Appeals Tribunal this month. I have previously blogged on Seldon v Clarkson, Wright and Jakes – a significant case on direct age discrimination and retirement. This is due to be heard together with Homer v Chief Constable of West Yorkshire Police, which deals with indirect age discrimination. They will be heard on 17 – 19 January, with judgment to be expected a few months after that. A restricted judgment in either case has the possibility to limit the impact of age discrimination law. A wider judgment will confirm its significance.
2. Employment tribunal reform
The full range of the government’s reform proposals are outside the scope of this blogpost, but there are many changes coming to employment tribunal practice and procedure. Underhill J is leading a “fundamental review of employment tribunal rules“, with a view to more decisions being taken by legal officers rather than employment judges or a full tribunal. Unfair dismissal claims will be heard by a judge sitting alone, rather than a full tribunal and, of course, from April 2013 fees will be charged for submitting a claim.
The qualifying period for unfair dismissal will go up from April 2012. PLC Employment point out that last time the qualifying period increased it only applied to new employees. If so, it will only have a practical effect in 2013, and with many of the other changes due to take place in 2013 it may be that 2013, rather than 2012, is the year employment tribunal reform really has an impact.
3. Employment law reform
Collective redundancy law and TUPE are currently under review. I’ll deal in more detail with TUPE in my next point. On collective redundancy law we are also awaiting the CJEU decision in Nolan v USA, which has the scope to considerably broaden the employer’s obligation to consult about business decisions that lead to collective redundancies.
The government is also expected to limit whistleblowing protection to disclosures about matters of public interest, rather than purely private obligations under the employment contract. It isn’t yet clear how that will be done.
TUPE law seems to have been fairly stable since the introduction of the new regulations in 2006. With the advent of the “service provision change”, there seems to have been an assumption on the part of many lawyers that every major transaction will involve a TUPE transfer, and there is no point in looking for any gaps in TUPE protection.
This year, the service provision change provision is likely to come under attack in the TUPE review as being a case of “gold-plating” a European directive – that is, imposing additional obligations that are not required by the directive. Beyond that, recent cases have pointed out the limits of a service provision change in cases where the client also changes, and in cases of the provision of goods. Employers fragmenting services in an attempt to avoid TUPE seems also to be a continuing trend. 2012 may be the year in which we have to go back to the old-school transfer of undertaking rules.
5. Human rights and employment law
One point that struck me from the ever-useful Michael Rubenstein review of forthcoming cases was how far we are going to see human rights points argued in employment law cases.
There is already an established pattern of human rights points being taken in disciplinary cases where the outcome may be the loss of the employees ability to work in their particular profession or occupation, but the arguments are spreading into other areas.
There are a series of cases currently before the European Court of Human Rights seeking to examine whether the UK’s rules on industrial action are compatible with Article 11 of the convention.
Judgment is awaited from the Grand Chamber of the European Court of Human Rights in the case of Markin v Russia, looking at the difference in parental rights enjoyed by mothers and fathers.
Also in the European Court of Human Rights, Eweida/Chaplin and Ladele/McFarlane will consider the approach of the UK courts to religious discrimination cases.
Perhaps most fascinating is the forthcoming examination by the CJEU in NS v Secretary of State for the Home Department about the extent to which the EU Charter of Fundamental Rights can apply in the UK, notwithstanding the UK’s opt-out of the charter.
What are your top 5 employment law issues for 2012? Over to you in the comments …