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Employment Law Journal: May 2012

Jonathan Exten-Wright examines the current state of play with the government’s wide-ranging changes to employment law, including its controversial proposals for compensated no-fault dismissals

The government’s plans for employment law reform continue apace. In November 2011, the government published its response to its consultation on Resolving Workplace Disputes, which highlighted many of its proposals. Since then, the government has taken steps to implement many of the measures. In addition, it has issued several calls for evidence, including on no-fault dismissals, and has updated its Employer’s Charter. In March 2012, the Department for Business, Innovation and Skills (BIS) published its Employment Law Review Annual Update 2012, setting out the progress made to date. Here, we take a look at the government’s employment law reform strategy and consider the principal features and what it means in practice.

Lewis Silkin

Katharine McPherson reviews the decision in Woodcock v Cumbria PCT and considers what role cost may play in justifying treatment that would otherwise amount to discrimination

For some time now, case law around the justification of discriminatory treatment has developed on the basis that cost alone is not enough to justify such treatment. There must be some other consideration or factor in addition to cost to rationalise such behaviour. This had come to be widely accepted as the ‘cost plus’ principle.


Dan Aherne and Libby Payne contemplate the courts’ and the government’s attempts to address difficulties with the law on consulting employees about collective redundancies

In November 2011, the government issued a call for evidence on the law on collective redundancy consultations. The call for evidence is now closed and the government’s response is awaited.


The EAT has tightened up its approach to the duty to make reasonable adjustments, write Nick Thorpe and Gemma Rusling

In recent years, tribunals have applied the duty to make reasonable adjustments fairly widely. But do they sometimes go too far? In Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley [2012], the Employment Appeal Tribunal (EAT) held that the tribunal had and overturned its finding that the employer (the trust) had failed to make reasonable adjustments in failing to facilitate a disabled employee’s application for Permanent Injury Benefit.

A recent EAT case has highlighted the difficulties involved in awarding damages for aggravating conduct separately from compensation for injury to feelings, explains Sarah Gregory

In a recent case, the Employment Appeal Tribunal (EAT) has given guidance on the approach that employment tribunals should take when awarding aggravated damages, emphasising that their purpose is to compensate the employee and not to punish the employer. In Commissioner of Police of the Metropolis v Shaw [2011], the EAT (Underhill J presiding) also set out a comprehensive and persuasive argument against making separate awards for injury to feelings and aggravated damages, preferring instead a single award for injury to feelings that would take aggravated factors into account. Although this case involved whistleblowing, the decision is equally applicable to awards in discrimination cases.

Jemima Coleman and Katie Russell weigh up the steps companies can take to improve female representation at board level without committing unlawful positive discrimination

Gender diversity at board level is an important issue politically, socially and economically. It has been reported that companies with strong female representation at board level and top management level perform better than those without.

A number of recent decisions suggest that the EAT is taking a more restrictive approach to when TUPE applies to a service-provision change, report Kate Barker and Rob Collier-Wright

Arguably the key change brought about by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) was the adoption of new provisions confirming that TUPE would apply to situations involving a service provision change. Under the preceding TUPE Regulations (TUPE 1981), which implemented the 1977 EC Acquired Rights Directive, an automatic transfer of employees would only occur on the transfer of an undertaking, business or part of an undertaking or business. However, it later became well established that a change of contractor occurring in an outsourcing context could also constitute a ‘relevant transfer’, as shown in the ECJ case of Schmidt v Spar [1994].