November 2012 Employment Law Newsletter


If you would like to discuss any employment issues please contact Julie Taylor on 01635 508181

1. Watch out for pension changes

Provisions repealing the stakeholder pension designation requirements came into force on 1 October 2012.  This has various consequences for employers. Previously, employers with five or more employees were required to provide access to a designated stakeholder pension scheme, however, this is now abolished and employers are no longer be obliged to provide access to a pension scheme until their staging date for automatic enrolment.

There are various practical issues that employers need to consider surrounding the automatic enrolment provisions. Therefore, please keep an eye out for more information regarding our seminar with Griffins in January 2013.

2. Restrictive Covenants: the importance of timing

The High Court has ruled that the reasonableness of a restrictive covenant must be judged at the time it was entered into rather than when the employer seeks to enforce it. This means that if it was unreasonable to include a particular restrictive covenant in an employee’s contract at the time when the contract was entered into, for example, because the employee was joining the company in a junior position with few responsibilities, then a subsequent change of circumstances, such as a promotion to a more senior role, will not render the restrictive covenant enforceable. The position may have been different if a complete new contract was signed on acceptance of the promotion rather than simply a letter confirming the new job title and salary as the employee would have expressly reaffirmed the restrictive covenants.

Therefore, when changing employees’ responsibilities, employers should always ensure that they also review any restrictive covenants and take legal advice as necessary.

3. Review of apprenticeships published

On 11 June 2012, an independent review of apprenticeships, to be led by entrepreneur Doug Richard, was announced by the Government. The report urges the government to improve apprenticeships and to tailor them more to the needs of employers. The recommendations include:

4. CRB Checks etc

On 1 December 2012 the Criminal Records Bureau merges with the Independent  Safeguarding Authority (“ISA”) becoming the Disclosure and Barring Service (“DBS”). The DBS will be responsible criminal record check applications and will take over the barring functions of the ISA.

Some changes to the application form, certificate and language used will be made.  Therefore, form orders received after 12 November 2012 will be supplied with the new DBS application forms, although, the current CRB application forms can be used until 28 February 2013. From 1 March 2013, only DBS application forms will be processed.

DBS certificates will be issued for all completed checks from 1 December 2012, although any CRB certificates already issued will remain valid. Registration details will transfer automatically to DBS and their contact details will not change.

More information can be found here:

5. Unfair Dismissal

The Employment Appeal Tribunal has upheld an employment tribunal’s finding of unfair dismissal where an employee was dismissed for misconduct for failing to observe safety rules.  The decision demonstrates that even where an employer carries out a reasonable investigation and follows a reasonable procedure, the tribunal can still find that the decision to dismiss fell outside the range of reasonable management responses.  These were important factors in the decision:

  1. the employee was unaware that the safety certificate he was required to have had been suspended until the investigation, yet this was one of the principal reasons for his dismissal;
  2. the risks as a consequence of the employee’s conduct were minimal;
  3. the tribunal considered that it was not clear that he had breached one of the safety rules as alleged;
  4. there was a difference in the treatment of this particular employee and another employee as they were both in breach of the safety rules, but only one of them was dismissed; and
  5. the employee had an unblemished record of 23 years’ service and the dismissal was for a first offence.

Therefore, employers should always fully consider the reasonableness of dismissing an employee, even where there is a breach of safety rules and I would recommend seeking specific legal advice.

6. Equal Pay: Be aware of time limits

Please note that these comments are intended to summarise some of the employment issues of the moment, not to provide detailed legal advice, so if you need assistance with any employment issues you may have please contact Julie Taylor on: 01635 508181.

Follow Julie on Twitter: @JulieT_GL

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