Employment Watch Winter 2011 - Cases before the courts in 2011

2 February 2011

We are waiting for several court decisions that could significantly change our current interpretation of employment regulations. Questions before the courts that will be answered this year include:

Can employees insist on legal representation before internal disciplinary hearings?

In April 2011 the Supreme Court is due to consider the Court of Appeal’s ruling in R (on the application of G) v X School and others [2010] IRLR 222 that a teaching assistant was entitled to legal representation during disciplinary proceedings for sexual misconduct with a child, on the basis that Article 6 of the European Convention on Human Rights (the right to a fair trial) applied, given the seriousness of the charge and its likely effect in ending his career, which included the right to having a lawyer present at his disciplinary hearing.

Can the buyer of a pre-pack business in administration avoid the automatic TUPE transfer of employees?

The question of whether, and in what circumstances, the buyer in a so-called "pre-pack" administration under the Insolvency Act can avoid the automatic transfer of employees by virtue of regulation 8(7) of TUPE remains uncertain. The Employment Appeal Tribunal considered this in the case of Olds v. Late Editions back in October 2010 and we eagerly await the President’s decision.

Are volunteer workers protected from discrimination?

The case of X v. Mid-Sussex Citizens Advice Bureau addressed this issue and was heard by the Court of Appeal in October 2010. Again, we await the decision.

For more information, please contact Richard Fox, head of Employment, at rfox@kingsleynapley.co.uk or on +44 (0)20 7814 1285.

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