Employment Law, Government & Legislation

News from England

Its always interesting to see whats currently happening in England as it might soon might also be happening in New Zealand. Well, at least as far as employment law is concerned. 

1. Beecroft report

The Beecroft report on Employment Law was commissioned by the Government as part of the Red Tape Challenge and was compiled by Adrian Beecroft, a venture capitalist. His brief was to look at the state of employment law and outline areas which have potential for further improvement or simplification to help business.  There is no obligation on the government to implement any of the proposals. Among the more interesting proposals are

– Businesses with less than 10 employees can opt out of certain rules and regulations.

We have seen this in New Zealand when the trial-period provisions were introduced, which initially only applied to employers with less 20 employees. The government has since then extended the provisions to apply to all employers. However, in a country where the majority of employers are SMEs and for which compliance with the often onerous obliagations under the ERA can be quite difficult, it might make sense to have another look at this.

– Cap of compensation for unfair dismissal to also apply to discriminatio-related unfair dismissal.

There is no compensation cap on unfair dismissal claims under New Zealand law. Case law indicates that awards for humilation and injury to feelings are usually less than $10,000. Awards for loss of wages average around 3 months. But there is nothing preventing an employee asking and being granted more if circumstances allow for it.  A statutory limit of , say 12 months wages, could provide employers and employees with certainty, prevent litigation claiming absurd amounts and also make settlement negotiations much more straight forward as the parties can work within set boundaries.  Good idea, then.

More details and a link to the full report here:

http://employmentblog.brodies.com/2012/05/23/beecroft-report-published/#page=1 

2. Public Sector Equality Duty (“PSED”)

The idea of the Equality Act 2010 was to combine nine pieces of discrimination law and to promote progress on equality. It requires public authorities to consider how they could positively contribute to the advancement of equality, such considerations to be reflected in the design of policies, including internal policies, and the delivery of services.

 •  The duty is at its most important when decisions are taken that affect people with protected characteristics directly.

•  The duty requires public authorities to take action to tackle the consequences of past decisions that failed to give due regard to the equality duty.

• The equality duty imposes significant and onerous obligations on public bodies in the context of cuts to public services.

The weight the public authoirty gives to the various factors is a matter for their discretion, unless “Wednesbury” – unreasnableness applies, in which the Courts can overturn the decision. 

Under New Zealand Law, the Human Rights Act provides for protection against discrimination, but there is no statutory obligation for public bodies to actively promote equality. Most government departments are ‘equal opportunity’ employers’, but that equality obligation only relates to its employees, not third parties or customers.  But even under the Equality Act costs are a countervailing factor and in times of austerity and ever increasing pressure to cut costs and provide more for less, it will be interesting to see how such principle can be applied in practice.

Details:

http://www.mills-reeve.com/files/Publication/930e82f7-ca3c-4205-9ab8-daca3413952c/Presentation/PublicationAttachment/c00057a3-98be-432c-8bf1-b91e42926cd5/Public_Sector_Equality_Duty_May2012.pdf#page=1

3. Suspension

There is no difference between England and New Zealand when it comes to suspension. When investigating misconduct or serious misconduct, suspension should always be discussed with the employee and never be automatic. As a general rule, suspension is appropriate when the employee is likely to “re-offend”, on health-and-safety grounds or when his or her presence in the workplace would interfere with the investigation.  Suspension should also always be on pay, regardless how serious the alleged misconduct is.  Suspension without pay may only occur if it is explicitly provided for in the employment agreement.

Details on suspension:

http://employmentblog.brodies.com/2012/05/17/suspension-during-disciplinary-investigation-must-not-be-automatic/#page=1 

and caselaw (suspension without pay unjustifiable; PDF doc):

http://www.cliffordchance.com/publicationviews/publications/2012/06/uk_employment_update-june2012.html?utm_source=lexology&utm_medium=newsfeed&utm_campaign=lexology 

 

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