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Employment Law Journal: July/August 2011

Catherine Drinnan describes why it is important to consider pension issues on the transfer of an undertaking

A recent case has highlighted that transferees in a business sale cannot simply ignore pension issues, even though occupational pension schemes are generally outside the scope of the transfer of undertakings legislation.

Catherine Wilson examines the proposals in the Modern Workplaces consultation on shared parental leave and extending the right to request to work flexibly

In May 2011 the government launched a consultation paper entitled Modern Workplaces. Among other changes, the document includes proposals to introduce a new system of flexible parental leave with effect from 2015, with the stated aim of building a consensus around greater flexibility in the workplace.


Amy Bird assesses the government’s attempts to use its Modern Workplaces consultation to resolve holiday and sickness conundrums created by European case law

Ever since two 2009 European Court of Justice (ECJ) decisions, employment law practitioners and human resources departments have been struggling with the question: how do we apply the UK’s statutory provisions on holiday leave to workers who are or have been off sick? The government is hoping that the proposals announced in its current consultation paper, Modern Workplaces, will provide an answer.

Employers who lose a discrimination or equality of terms claim could be required to conduct a pay audit under new proposals, explains Anne Sammon

On 16 May 2011 the government launched its Modern Workplaces consultation, containing proposals on reforming maternity and parental leave, together with flexible working and working time reforms. In addition to these areas, the consultation unexpectedly includes some rather radical proposals on equal pay. These are likely to be of concern to employers and their advisers, who may wish to respond to the consultation by the closing date of 8 August 2011.

Will Winch studies the effect and extent of the UK’s new anti-corruption legislation

On 1 July 2011 the Bribery Act 2010 comes into force. The Act is designed to update some fairly archaic statutory provisions and to comply with the UK’s ratification of the OECD’s Anti-Corruption Convention.

In the light of two recent rulings, Rachel Dineley looks at how compensation is calculated in discrimination cases

The Court of Appeal in Wardle v Credit Agricole Corporate and Investment Bank (Calyon) [2011] has found that the employment tribunal erred in awarding compensation for career-long loss (15 years, from 2008 until Mr Wardle’s anticipated retirement in 2024). After the Employment Appeal Tribunal (EAT) reviewed and reassessed the tribunal’s attempt to calculate the appropriate level of compensation, both parties appealed to the Court of Appeal. Mr Wardle’s appeal addressed the EAT’s decision to apply a sliding scale to the calculation of career-long loss and the reduction in the statutory uplift made by the tribunal. Calyon cross-appealed with respect to the award of compensation for career-long loss, the failure to reduce compensation to reflect the 80% chance that Mr Wardle would have left Calyon in April 2010, and the basis on which the statutory uplift was calculated.


Employers need to be cautious when discussing ex-employees, even outside formal references, warns Naomi Greenwood

While the world debates the wisdom of the superinjunction, it appears that the judicial trend of dictating what people can say has reached the employment law arena. In McKie v Swindon College [2011] HHJ Denyer QC extended the application of a duty of care on ex-employers beyond just the giving of references. Previously, case law had been limited to establishing that an employer owed a duty of care in providing a reference about an employee or ex-employee where it was foreseeable that any information provided would be relied on by a prospective employer and therefore could cause loss to that individual. However, McKie did not concern comments made in a reference but rather an e-mail sent six years after Mr McKie left Swindon College. The decision therefore sends a cautionary message to employers who engage in any communications, not limited to references, which may have a financial impact on employees or former employees.


The EAT has ruled that by not selecting an employee who was on maternity leave for redundancy, an employer disadvantaged her colleague instead, reports Gemma Rusling

The Employment Appeal Tribunal has confirmed that awarding a maximum redundancy selection score for an employee on maternity leave, whose performance over the review period could not be measured due to her absence, constituted unlawful sex discrimination against a male colleague.