HR Bytes - October 2011

Welcome!

The seasons may change, but employment law continues to get lots of column inches, with the Government announcing more proposals for reforms. It is early days, but if implemented in their current form the changes should be welcomed by employers.

Less happily, the challenging economic climate continues to make the headlines too with BAE Systems Plc. announcing on 27 September that it will cut 3000 jobs in the UK and end a century of aircraft manufacture. This comes against the backdrop of increasing unemployment reaching a jobless rate of 8.1% - a near 15 year high. These are testing times for employers as tough times can mean taking some very difficult decisions.

Looking forward on a more positive note, do make sure you check out our Future of Work seminar – details below.

What's new this month?

Legal Developments

To what extent can a tribunal take post-employment conduct into account when awarding aggravated damages? Did an employer act unfairly when, after failed negotiations to change terms of employment, it offered re-employment on new terms which were less advantageous? Should a reference be given when there are outstanding allegations against an ex-employee? Dismissal of employee for "relatively mild" comments on Facebook was unfair Other news

George Osborne announces employment law reforms The Government's Red Tape Challenge A recent survey shows employers' response to abolition of statutory retirement procedure Tax update What's coming up

The Future of Work - is your HR function ready? 4 November 2011- read more HR Forum: Redundancies - lessons learned from the recession - 30 November 2011 - read more Legal developments

To what extent can a tribunal take post-employment conduct into account when awarding aggravated damages?

In Bungay and another v Saini and others UKEAT/0331/10, the EAT considered the joint and several liability of company directors for discrimination compensation and the extent to which a tribunal could take post-employment conduct into account when awarding aggravated damages.

It was decided that the board members were jointly and severally liable with the company for both discrimination compensation and aggravated damages, given the manner in which they had contributed to the damage the employees had suffered. This included post-employment conduct in the form of malicious complaints to the police.

The imposition of joint and several liability has particularly important consequences for individual respondents in cases such as this one, where the corporate respondent goes into in insolvent liquidation, as they may find themselves personally responsible for large compensation awards.

The decision also makes clear that inappropriate post-employment conduct can result in an aggravated damages award being made to a claimant. Post-employment conduct can extend not only to the respondent's conduct of its defence but to other behaviour. However, the EAT's decision in this case suggests that the post-employment conduct itself must not only be of sufficient severity (high-handed, malicious, insulting or oppressive) to merit an aggravated damages award but must also be sufficiently...