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Employment Law Journal: December 2015/January 2016

Sarah Parkin rounds up the key employment law cases and legislative developments that practitioners can expect in the coming year

With a number of significant Court of Appeal decisions and legislative developments on the horizon, 2016 looks set to be an interesting year for employment practitioners and in-house counsel. The top ten developments to look out for are outlined in this article.

CMS

Following two recent EAT cases, employers face the renewed prospect of workers receiving whistleblowing protection for disclosing breaches of their own employment contract, warns Sarah Ozanne

Protection for whistleblowers was introduced by the Public Interest Disclosure Act 1998, which amended the Employment Rights Act 1996. The law protects workers who have made a qualifying disclosure from both dismissal and detriment as a result of doing so. There is no qualifying period of service to obtain the benefit of such protection, any such dismissal will be automatically unfair and potential awards of compensation are uncapped.

Chris Tutton discusses a recent ECJ decision on how much holiday pay a worker was entitled to after she increased her hours

The European Court of Justice (ECJ) in Greenfield v The Care Bureau Ltd [2015] has made it clear that part-time workers whose working patterns change should have their holiday entitlement adjusted to reflect their new working patterns. Employers are not obliged to recalculate any statutory leave that the worker has already accrued, but can deduct leave already taken from the new calculation.

Hamlins LLP

Shivali Chaudhry investigates measures such as name-blind job applications designed to stamp out unconscious bias among recruiters

Household-name employers in both the public and private sector are piloting a voluntary scheme to select candidates for interview on a ‘no-names’ basis, in a bid to curb discrimination and prejudice. Employers taking part in the scheme include the BBC, the NHS, HSBC, KPMG, Deloitte and the civil service.

Fieldfisher

Louise Benski and Richard Kenyon examine the trend towards state enforcement of employment law rights, including the proposals to tackle abuse of vulnerable workers

The criminal law can encroach into employment territory in a number of ways. Obvious examples might include breaches of health and safety, national minimum wage (NMW) and anti-bribery legislation. But there are less obvious examples too. Hands up all those who knew that s165(2) of the Employment Rights Act 1996 criminalises an employer who fails, without reasonable excuse, to provide written particulars of a redundancy payment calculation? It is not enough for the employer merely to type the employee’s termination date, age, service and weekly pay into www.gov.uk to calculate the statutory redundancy pay due. If the employer then provides only the answer and not the calculation to the employee, it could be liable on summary conviction to a fine not exceeding level 1 on the standard scale. And if the employee then requests a written statement under s165(3) and the employer fails to respond within the set notice period, it could face a fine under s165(4) not exceeding level 3 on the standard scale. For all those with your hands up, well done. Now leave them up if you know of any employer that has actually been prosecuted under these provisions. What, no hands?

Elaine Banton looks at how much progress the UK’s biggest businesses have made in increasing the number of female directors they employ and highlights what they need to do next

The recent announcement by Lord Davies that Britain’s largest companies should increase the number of female directors they employ to 33% has garnered much media interest. According to his report, Improving the gender balance on British boards, the original 25% target has been met, with 26% of FTSE 100 directors being women in October 2015 compared to 12.5% in 2011.

Joanna Chatterton and Peter Wright outline new requirements making senior managers in banking and insurance firms more accountable for their decisions

Financial institutions and insurance firms are bracing themselves for 7 March 2016 when two new regulatory regimes will go live. The Senior Managers Regime (SMR) and Senior Insurance Managers Regime (SIMR) are designed to support a change in the culture of banking at all levels and to clarify and strengthen accountability in insurance businesses. Introduced jointly by the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA), both regimes aim to hold those in the most senior positions in affected firms personally accountable for the business areas they oversee.

The ECJ has recently considered when the special employment jurisdiction rules in the Brussels Regulation will apply to claims against directors. Andrew Taggart, Anna Pertoldi and Donny Surtani consider the implications

In Holterman Ferho Exploitatie BV v Spies von Büllesheim [2015], the European Court of Justice (ECJ) has considered a number of jurisdiction questions that are relevant to companies both when drafting contracts of employment and considering claims against directors. It may also be relevant in the context of shareholder agreements.