Legal milestones for 2009

What legal issues and cases should HR be mindful of in the year ahead? Trevor Bettany, partner, and Anne-Marie Balfour, solicitor, at Speechly Bircham, give their picks.


The Health and Safety (Offences) Act 2008 becomes law: This increases the maximum fines, and the number of health and safety offences for which imprisonment of relevant directors and managers may apply.
Action: Make sure directors and those responsible for health and safety are aware of the importance of compliance.

Heyday challenge (European Court of Justice): The European Court of Justice’s (ECJ) decision on the Heyday challenge to the default retirement age of 65 set out in the Employment Equality (Age) Regulations 2006 is due early this year. The advocate-general suggested the rule could be objectively justified under the Equal Treatment Directive. If the ECJ follows suit, the High Court will have to decide whether it is in fact justified. In the meantime, all claims concerning forced retirement have been stayed pending the Heyday decision.
Action: Monitor whether and when enforced retirement will need to be justified.

Stringer & Others v HM Revenue & Customs (ECJ): The ECJ is due to decide whether the Working Time Directive permits staff on long-term sick leave to accrue statutory minimum annual leave. The advocate-general suggested leave does accrue, and that the workers concerned can designate a future period as paid leave, but can’t take it during their absence, and will be entitled to payment in lieu of accrued leave on termination of employment. The same advocate-general suggested in Shultz-Hoff that a worker can take the accrued leave in a subsequent leave year. But this would be inconsistent with the Working Time Regulations, which state that statutory leave cannot be carried over.
Action: If the ECJ follows the same reasoning, employers should ensure that at least contractual leave does not accrue during sick leave.


Annual increases in statutory compensation limits: These take effect for dismissals and redundancies from 1 February 2009. A week’s pay for statutory redundancy and basic awards for unfair dismissal will increase from £330 to £350. The maximum compensatory award for unfair dismissal will rise from £63,000 to £66,200.

Action: Revise calculations for redundancies and relevant events after this date.


The Employment Act 2008 comes into effect: This repeals the statutory dismissal, disciplinary and grievance procedures, encourages informal resolution of grievances, and gives employment tribunals discretion to increase or reduce compensation awards by up to 25% where the employer or employee fails to comply with the new Acas Code of Practice.
Action: Review disciplinary and grievance procedures to ensure compliance with the new Acas Code of Practice.

Right to request flexible working extended: This right will be extended to parents of all children aged 16 or under.
Action: Revise any flexible working policies and make sure managers are aware.

Maternity, paternity and adoption pay increases to £123.06 per week, and statutory sick pay rises to £79.15 per week
Action: Recalculate payments for those who qualify and budget accordingly.

Statutory annual leave entitlement increases: It will rise from 4.8 weeks to 5.6 weeks.
Action: Amend staff handbooks and policies, amend contracts for new joiners, inform existing workers, and consider how this will affect part-timers.


Safeguarding Vulnerable Groups Act 2006 comes into effect: This introduces a centralised system for vetting individuals working with children and vulnerable adults. Employers face fines of up to £5,000 for failing to check staff, or for employing a person on the list.
Action: Make sure your organisation is familiar with the new procedure, and what to do if an employee is barred from work.

Dates to be confirmed

Employers prohibited from including tips to make up the minimum wage.
Action: Ensure payment arrangements do not take tips into account from the date to be announced.

Amicus v Glasgow City Council (Employment Appeal Tribunal): The EAT is due to determine an appeal against a finding that a transferee has no obligation under TUPE to consult employee representatives after the transfer on changes which it envisages making in relation to the staff that it inherited.

Klarenberg v Ferrotron Technologies (ECJ): The ECJ will rule whether, for a transfer of part of an undertaking to fall within the Acquired Rights Directive, that part must be organisationally autonomous when run by the transferee.

Coleman v Attridge Law (employment tribunal): The ECJ ruled in July 2008 that workers who are not disabled can suffer discrimination by association with others who are disabled, which implied that the same principle should apply to discrimination on grounds of age, religion and sexual orientation. The tribunal decided at a pre-hearing in November that the Disability Discrimination Act 1995 can be construed as to give effect to that principle. The Coleman case will return to a tribunal for a full hearing.
Action: Employers must note that the principle of equal treatment applies to particular grounds of protection (eg, disability) rather than a type of person, such as someone who is disabled.

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