Thursday, 30 December 1999

Some more EAT decisions…


The following cases were placed on the EAT website on 24th December. The transcripts can be downloaded from

Surrey Health BC v Crooks [Holland J., 29.10.99]: The Respondent to an EAT hearing failed to lodge a skeleton argument until the morning of the hearing. The Appellant applied to debar the Respondent from playing any further part in the appeal. The EAT declined to make such an order, but made a partial order that the Respondent could not rely on any authorities or any arguments that did not appear in the ETs decision.
The EAT said that the factors influencing it in going that far were that the ETs decision was forensically bold and the Appellant had anticipated the Respondents main argument in its own skeleton argument.

Barry v Caledonian International [Lord Johnston, 1.12.99]: Applicant presented his IT1 within 1 month of dismissal. The tribunal declined to register it on the grounds that it did not give sufficient particulars of the complaint. The Applicants union failed to respond to the tribunals invitation to particularise the IT1 further and, five months later, the Applicant lodged a second IT1 after telephoning the tribunal to chase the progress of his claim. The ET held that the second IT1 was presented out of time and refused to extend time. The EAT overturned this decision. It held that the first IT1 was validly presented within three months, and that since registration was a different matter to presentation, the original IT1 remained valid.

Bridgewater Housing Association v Harrigan [Lord Johnston, 2.12.99]: A bald statement by an Employment Tribunal that a TUPE transfer has occurred is unacceptable. Tribunals should give full reasons for their decision, and the failure to do so is an appealable error, notwithstanding that the question of whether a transfer has occurred is one of fact.

Wednesday, 22 December 1999

Maternity and Parental Leave Regulations

The final version of the Maternity and Parental Leave etc. Regulations 1999 (SI 1999/3312) were finally published on 20th December (despite coming into force on 15th December!)

The Regulations are attached to this E-mail (Crown copyright 1999, reproduced with the permission of the Controller of Her Majesty's Stationery Office) in HTML format.

I am aware some subscribers have had problems with the 'E-mail back' service that I have used for distributing documents in the past. I would welcome feedback on whether that method is preferred for document distribution, or whether you prefer the documents distributed in this way by simply attaching them to E-mails.

Monday, 13 December 1999

Service Ban on Homosexuals to be removed

According to an article in today's Times reporting an interview with Geof Hoon, the Defence Secretary, the armed services are to lift the ban on homosexuals serving next month.

A new code of conduct will be published in January concerning behaviour standards irrespective of sexual orientation. This will state that behaviour alone will determine whether the sexuality of a man or woman will consitute grounds for dismissal. A known homosexual who conforms to standards of military discipline will be treated no differently from a heterosexual colleague.

This follows the ruling by the European Court of Human Rights on 27th September 1999 in the cases of Jeanette Smith, Graeme Grady, Duncan Lustig-Prean and John Beckett (see bulletin of that date) which held that the U.K. was in breach of article 8 of the ECHR (right to respect for family and private life).

Although this Code is welcome, the armed services continue to disciminate on grounds of gender (eg Sirdar v UK in which, last month, the European Court of Human Rights held that the refusal of the Royal Marines to employe a female chef was not incompatible with the Convention). No doubt this will be discussed at a government conference, being held tomorrow in Birmingham, on racial and sexual equality in the armed forces. However, Geoff Hoon is reported in The Times as indicating that "there might still be good reasons for doubting the wisdom of giving women front line combat roles.". He is quoted as saying "I'll look at it, but there is no presumption in favour of it."

Plus ca change...

PS - Just a reminder - the Maternity and Parental Leave etc Regulations 1999 come into force on Wednesday - see bulletins dated 5th November and 25th October 1999

PPS - Please note that the advertisements which have appeared recently at the footer of some of these messages are imposed by the ListBot server (which I use for distributing these bulletins) and do not form part of these bulletins. I am arranging to have them removed, and they should not be appearing after Christmas.

Monday, 6 December 1999

ECJ Judgment - Allen v Amalgamated Construction

The ECJ held on 2nd December in Allen v Amalgamated Construction that the Acquired Rights Directive applies to transfers of undertakings between companies which are members of the same group.

A transcript can be obtained from the ECJ web-site (which can be quite slow). Alternatively, there is a direct link from the employment law 'superportal' web page at


Please note that the advertisements which have appeared recently at the footer of some of these messages are imposed by the ListBot server (which I use for distributing these bulletins) and do not form part of these bulletins. I am currently arranging to have them removed, but they may continue appearing for the next few weeks.

Thursday, 2 December 1999

Employment Law and Human Rights - PLEASE OPEN ATTACHMENT


Please find attached the seminar notes, as requested, on employment law and the Human Rights Act 1998.

I offer in-house seminars on this and other topics. Please contact me on for further details.

Employment Law and Human Rights - seminar notes available

Complimentary copies are available of seminar notes from a lecture I gave this afternoon for the Society of Chief Personnel Officers and the Chartered Institute of Public Finance and Accounting.

The subject is 'Employment Law and the Human Rights Act 1998'.

To obtain a copy of the notes by E-mail (in Word for Windows format), please send a blank E-mail to . Do not reply to this message - it will not work!

Friday, 26 November 1999

New EC Directives on Discrimination - including Age, Sexual Orientation, Religion and Belief Discrimination

The EC Commission has adopted three proposals to combat discrimination under Article 13 of the EC Treaty (introduced by the Treaty of Amsterdam, which came into force on 1st May 1999). These proposals are:

• a directive prohibting discrimination in employment, outlawing direct and indirect discrimination on grounds of racial and ethnic original, religion or belief, disability, age and sexual orientation (I have highlighted the grounds not currently recognised under UK law);

• a directive prohibiting discrimination on the grounds of racial or ethnic origin in a wider range of areas, namely employment, edication, the provision of goods and services, and social protection;
• an action programme designed to support and complement the implementation of the directives through the exchange of information and experience, and the dissemination of 'best practices' in both legislative and non-legislative areas.
David Blunkett, Secretary of State for Education and Employment, has welcomed the proposals in principle. He says:

"We must ensure that any new legislation gives maximum protection from discrimination, but that it is also practically workable and easy to use for employers. Our support for these important measures shows that we continue to be at the forefront of European action to fight discrimination effectively."

I will disseminate further details as and when they become available.

Thursday, 25 November 1999

Yet more EAT decisions...


The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from

Balmorral Group v Glenn Athol Rae [Lord Johnston, 4.11.99]: Heat of the moment resignation - consideration of Kwik-Fit v Lineham - ambiguous conduct ought to have placed employer on notice that resignation might not have genuinely been intended - termination therefore properly classified as dismissal

Ben-Edigbe v Nuffield Hospital [HHJ Peter Clark, 21.10.99]: Application struck out for failure to comply with interlocutory orders and failure to attend a hearing. Lengthy consideration of costs against applicants represented by sub-standard employment consultants. This decision contains interesting "observations on the growth in representation by self-styled employment consultants" by the court - perhaps timely comment in view of the current government investigations into PI claims assessors.

Chequepoint (UK) Ltd v Turner [Lindsay J., 2.11.99]: Consideration of territorial jurisdiction under ERA 1996 and Brussels Convention. Tribunals must look at the reality - otherwise an unscrupulous employer can rely on a mobility clause to send an employee overseas the day before a dismissal, thereby escaping UK jurisdiction. The EAT also provided a lengthy analysis of apparent bias, due to comments by Chairman that the Respondent was 'well-known' to the employment tribunal.

United Distiller v Vintners v Moxham [Lord Johnston, 17.9.99]: The EAT held that where the employment tribunal finds that an employee is 70% contributorily at fault in the dismissal, "it is impossible to state, except in the most exceptional circumstances...that no reasonable employer would not have dismissed in those circumstances" - thus setting aside a finding that the dismissal did not fall within the range of reasonable responses. Note in this case there was no suggestion of the dismissal being unfair due to procedural irregularity - the only issue was whether dismissal was a reasonable response - thus the above quotation is not as startling as it might seem on first reading. This decision has also been overtaken by Haddon v van Den Bergh Foods.

Wilson v Ethicon Ltd. [Lord Johnston, 3.11.99]: Subsequent to the Haddon decision, Lord Johnston provides robust support for Haddon and remits a case back to the employment tribunal because it was not clear what test of 'reasonableness' it adopted.

Vent-Axia Ltd. v Wright [Lord Johnston, 13.9.99]: Re-affirms that the primary test when ordering disclosure of documents is whether disclosure is necessary for fairly disposing of the proceedings, not whether the document is confidential in nature.

Monday, 22 November 1999

Working Time Regulations

From Derek Rodgers of Keeble Hawson Moorhouse, re the amendments to the Working Time Regs...
  • Have you noticed that a revised draft of the amending regulations has
  • appeared on the HMSO website? It is the same as the previous draft
  • but proposes a new regulation 35A which will impose a statutory duty
  • on the Secretary of State to consult both sides of industry and to
  • issue guidance on the operation of the Regulations.

Breach of WTR - leading to corporate manslaughter?

Firm's directors convicted over fatal crash, by Arthur Leathley. Times, November 20, 1999, 4. Also reported in DTel, November 20, 1999, 2.

In a legal ground breaking case, Stephen and Julie Bowles, two directors of Roy Bowles Transport Limited, have been convicted of two charges of corporate manslaughter after it was held that they knew or should have known that Mr Andrew Cox, a driver for their haulage firm, often worked 60 hours or more without a proper break. His excessive working hours resulted in a fatal crash.

It being a criminal case, there will be no judgment available to consider unless an appeal takes place.

Friday, 19 November 1999

Status of Casual Employees - House of Lords decision

Employment Law (UK) List -

Yesterday, the House of Lords gave its decision in Carmichael and anr. v National Power plc on the employment status of casual employees.

The full speeches are available at . Thanks to Paisner & Co. (who acted for the successful employer) for notifying me of this decision.

The Facts

Two employees brought proceedings in the industrial tribunal for written particulars of their terms of employment (under, as it is now, ERA 1996 s1). The employer claimed that they were both casual workers and did not work under a contract of employment.

They had both started working for National Power in late 1989 as guides, showing visitors around the building. In 1990, they worked for about 3.75 hours per week, rising to as many as 25 hours per week in 1995.

The letter inviting applications for the job stated:

"Employment will be on a casual as required basis and payment will be at the rate of 365.56p per hour"

The letters of offer, after interview, stated:
"I am pleased to note that you are agreeable to be employed by the C.E.G.B....on a casual as required basis...

"When your services are required you will be paid at the rate of...

"Please find enclosed a pre-typed reply letter which should be returned to me confirming your acceptance of this offer..."

The pre-typed reply letter stated:

"I am pleased to accept your offer of employment as a station guide on a casual as required basis."

The Issue

Were the employees employed under a contract of employment, so as to entitle them to a written statement of terms and conditions?

The Decision

The House of Lords unanimously held that they were not employed under a contract of employment, and therefore not entitled to a written statement of terms and conditions of employment.

The important factors were:
• lack of mutuality - on a proper construction of the letters, the employees were under no obligation to accept work, and the employer under no obligation to provide it .
• the documents provided no provisions governing when, how or with what frequency work would be offered; it had no provisions for notice of termination of employment; the sickness, holiday and pension arrangements for regular staff did not apply, nor did the disciplinary and grievance procedure.
• on a large number of occasions (eg 17 occasions in 1994 for Mrs Carmichael) the employees were not available for work and were not subjected to any disciplinary action - thus the inference is that when work arose, they were free to accept it or reject it.
• the fact that the employees were paid under PAYE was not sufficient to offset the lack of mutual obligation which is necessary for a contract of employment.
In addition, the House (Lord Hoffman) commented on the proper approach to construcing contracts of employment, namely:
• where the contract is contained in writing alone, construction is a matter of law and it is appropriate for appellate courts to interfere.
• where the contract is evidenced in writing but supplemented by verbal agreements or by conduct, it is legitimate to look at the parties' subsequent conduct to infer what the parties themselves believed their obligations to be (which is strong evidence of what their obligations actually were). An appellate court should not normally interfere in an employment tribunal's findings of fact in this regard.


Although this case is ostensibly limited to a claim for a written statement of employment particulars, the implications for casual workers will apply across the whole employment spectrum where a casual worker seeks to rely on employment rights granted by a contract of employment.

Note that in some areas, the lack of mutuality will not be fatal - thus for unfair dismissal rights, provided the employee can prove a series of short-term contracts over a period of at least one year, the fact that there may have been various temporary cessations of work will not interfere with continuity of employment.

Employers should be advised, when employing casual workers, to ensure that all documentation emphasises the lack of mutual obligation. They should also ensure that they do nothing to change this lack of mutual obligation during the course of employment (such as disciplining a worker for failure to attend work).

Yet more EAT decisions...


The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from

Banks v Tesco Stores Ltd. [Morison J., 15.9.99]: There is no requirement under Art 119 or the Equal Treatment Directive that statutory maternity pay should reflect earnings before the maternity period commenced. If the social security system excludes some employees from receiving SMP (or other benefits), due to failure to comply with statutory consitions, that is a matter for the state and not for the ECJ. Request for reference to Europe refused.

Bishop v Graham Group plc [HHJ Byrt QC, 16.9.99]: Two points:
• in order for a single act of misconduct to justify dismissal (i.e. to amount to 'gross' misconduct), it must be a serious, wilful, and obvious act of misconduct.
• although a person hearing an appeal against the decision to dismiss should normally hear the employer's case before the employee (so that he can establish the case against the employee and put all relevant matters to the employee), it does not necessarily render the dismissal unfair if the peson hearing the appeal hears the employee's case first.

Everitt v British Telecom plc [Morison J., 16.9.99]: Again, two points:
• an employee alleged during disciplinary proceedings that the person who investigated the disciplinary offences (which eventually led to his dismissal) held a grudge against him. The disciplinary panel did not allow him to question the investigator. This did not render the dismissal unfair, since the employee admitted he had committed the acts in question - thus the investigator's motive for investigating was irrelevant.
• the 'range of reasonable responses test' may not be good law. Morison J., no doubt in anticipation of his reserved decision the following week in Haddon v van den Bergh Foods (see bulletin 8th November 1999), stated:
"It is a misconception for employers to believe that in a misconduct case all they have to do is satisfy the range of reasonable responses test. That of itself is not sufficient, because the statute requires the tribunal to take into account concepts of equity and justice. That means that even if many employers would have decided to dismiss, the dismissal of this employee might still be unfair having regard to his own personal circumstances. The danger of tribunals simply applying the 'range of reasonable responses test' is that they may, thereby, fail to have regard to the other requirements of section 98(4), namely that the fairness of the decision must be judged by what is equitable 'and the substantial merits of the case.' A dismissal is not necessarily fair just because a reasonable employer, given the same circumstances, might have dismissed. There may be cases where the particular circumstances of the employee render the dismissal unfair."

Khanum v IBC Services [Morison J., 15.9.99]: Employee was unfairly dismissed and suffered sex and race discrimination. Following her dismissal, she decided to take herself out of the job market and undertake a 3-year University course. The Employment Tribunal found that her decision to go to University broke the chain of causation and did not award her damages from the date she went to University. The EAT reversed this decision, holding that if she had not been unfairly dismissed / discriminated against, she would have continued to earn a salary and the dismissal was the effective cause of her loss of earnings. Her decision to go to University was not a novus actus and she was entitled to recover compensation for her time at University.

Thursday, 18 November 1999

Some more EAT decisions...

Cerberus Software v Rowley [Morison J., 4.5.99]: Analysis and application of the principle in Abrahams v Performing Rights, namely that an employee who is dismissed with contractually authorised pay in lieu of notice is not required to mitigate his loss, and does not have to give credit for subsequent earnings.

Collinson v Central Parking [Morison J., 28.7.99]: A tribunal chairman refused to provide extended reasons three months after summary reason were issued. The EAT allowed an appeal against this refusal. The chairman then wrote to the EAT, stating that the tape records of his verbal reasons had been destroyed six months after the original decision. The EAT reviewed its own Order, withdrawing the requirement that the chairman produce extended reasons on the grounds it was impractical to expect him to do so. Note - the EAT stated it had no power to order a Chairman to produce extended reasons, only to review a chairman's refusal to provide reasons once an application had been made to the Chairman.

DTI v Walden [HHJ Peter Clark, 22.7.99]: An employee, when claiming against the DTI for a payment out of the National Insurance fund becuase of the insolvency of the employer company, must prove that the employer company was insolvent within the meaning of ERA 1996, s183. Mere proof that the employer company had been dissolved was inadequate, because a company could be dissolved for reasons other than those set out in s183 (eg a defunct company) when no payment out of the fund should be made.

Lewisham v Candy [Charles J., 9.6.99]: In circumstances where a large employer (10,000 employees) is making a team of roofers redundant, and the roofers are represented by a union, it is unreasonable (and therefore unfair) for the employer to consult with the union but not with the individual employees, since the union might have a conflict of interest.

React Staffing Agency v Benstead [Morison J., 28.7.99]: The employer sent a fax to the employment tribunal, one week before the hearing, asking for an adjournment on the grounds she had a hospital appointment. She was able to produce the fax confirmation slip (which had the correct fax number on and an imprinted confirmation from the Employment Tribunal's fax machine). The fax was not placed before the ET chairman, and the ET found that here had been unauthorised decuctions from the applicant's wages. Indeed, despite the fax confirmation, the ET asserted to the EAT that the fax had never been received. The EAT held that this was clearly an appropriate case for allowing an appeal and remitted the case to a fresh tribunal.

COMMENT: It is difficult to see an error of law in the ET's decision, since there was no decision refusing an adjournment. It may be that an application for a review, rather than an appeal to the EAT, would have been an equally appropriate course for the employer to take.

William West v Fairgrieve [Morison J., 25.6.99]: An unsurprising decision of the EAT, in which it holds that negotiations for a pay increase between the transferor and a trade union after a TUPE transfer has occurred cannot bind the transferee.

Tuesday, 9 November 1999

Equal Opportunities Leaflet for Small Business

The government has today launched a new guide aimed at helping small firms deal with equal opportunities.

The leaflet, "Equal Opportunities is Your Business Too", is designed specifically for small businesses. It has been prepared by the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council.

The leaflet is available from the CRE Publications Centre by telephoning 0171 932 5286.

Saturday, 6 November 1999

Parental Leave

The government published the final draft Parental Leave Regulations yesterday (the previous Regulations, which were made available through this list, being the consultation draft).

The DTI press release is copied below:


4 November 1999


Stephen Byers, Secretary of State for Trade and Industry, today announced the details of the Government's parental leave rights which will become law on 15th December 1999. As a result of consultation, the new proposals include a specific scheme for the parents of disabled children and introduces greater flexibility to assist small businesses.

Laying the regulations in Parliament, Stephen Byers, announced that the parents of disabled children born after the 15th December will be able to use their entitlement of thirteen weeks unpaid leave up until the child's 18th birthday.

The decision to extend rights for the parents of disabled children follows the department's consultation on parental leave. On average parents with disabled children have to attend more medical appointments a year. A number of organisations including the TUC and Equal Opportunities Commission suggested amendments to the draft proposals to help parents cope with these extra demands.

The regulations confirm that parents will for the first time have the right to take up to 13 weeks unpaid leave over the first five years of a child's life for children born after 15th December. Parents adopting a child will be entitled to the same leave in the five years after adoption.

In a move aimed at helping small businesses, the amount of parental leave that can be taken in any one year will be limited to four weeks in the Government's fallback scheme. But small businesses will be encouraged to enter into their own agreements with employees reflecting the needs of their business rather than relying on the fallback scheme.

Stephen Byers said:

"I have listened very carefully to the views of employees and employers in our consultation and I am pleased to announce that we have changed our proposals to help the parents of disabled children cope with the extra demands they face. In addition we have taken steps to meet many of the concerns raised by small businesses.

"These regulations are groundbreaking. Parents will for the first time be entitled to three months off work in the first five years of a child's life as well as to time off when there is a sudden emergency at home, or school.

"The key to the success of our proposals is flexibility. It is now for employers and employees to agree the arrangements locally for how the 13 weeks leave should be taken. We do not want to dictate this and our consultation demonstrated that different arrangements will suit different businesses.

"The Government's fallback scheme is simply a fallback. Our task is to ensure that parents get these new rights but if a small business would prefer to allow employees to take leave in minimum blocks of a day rather than a week that is fine. Similarly if a business wants to allow employees to take 13 weeks all in one go they can do so."

Employers will not be required to keep statutory records of parental leave taken as part of the Government's commitment to minimising red tape. Stephen Byers also announced that the Government will set up a monitoring group to monitor take-up of parental leave and report back to him on its success.

The fallback scheme outlined in the regulations today provides for employees to take parental leave:

in blocks of one week up to a maximum of four weeks leave in a year (for each child);

in one day, or multiples of a day if the leave is to care for a disabled child, again to a maximum of four weeks a year;

after giving 21 days notice;

subject to postponement by an employer for up to six months but leave cannot be postponed when an employee gives notice to take it immediately after the time the child is born, or placed with a family for adoption.

Notes for Editors:

1. Details of the parental leave regulations are contained in the attached Interim Guidance Note which is also available on the DTI website ( ) or through DTI General Enquiries, tel: 0171 215 5000.

2. The Maternity and Parental Leave etc Regulations 1999 will be published by the Stationery Office ( ), telephone 0345 02
34 74.

3. The regulations will also increase ordinary maternity leave from
14 to 18 weeks and reduce the qualifying period for additional maternity leave from two years to one. This means that mothers who qualify will be able to extend their maternity leave until 29 weeks after the birth. They simplify the procedures for women giving notice of taking maternity leave and the arrangements for their return to work, and also make it clear that contracts of employment continue during additional maternity leave. The maternity leave changes will apply to women whose expected week of childbirth falls on or after 30 April 2000.

4. Consultation on the parental and maternity leave proposals closed on 4 October (DTI Press Release P/99/679 4 August). 310 responses were received. In total 194 responses came from employers and their representatives. 56 responses were received from employees and employees' organisations.

5. For the purposes of parental leave, a disabled child is a child for whom disability living allowance is awarded.

Interim Guidance Note

The new right to parental leave will apply to employees who have completed one year's service with their employer. It will allow parents with children born or adopted after 15 December 1999 to take parental leave to care for that child. The right will apply to mothers and fathers and to a person who has obtained formal parental responsibility for a child under the Children Act or its Scottish equivalent. Parents will be able to start taking parental leave when the child is born or placed for adoption or as soon as they have completed one year's service with their employer, whichever is later.

Key elements of parental leave which will apply in every case

13 weeks' parental leave for each child;

the employee's rights to take the leave last until the child's fifth birthday or until five years have elapsed following placement in the case of adoption;

parents of disabled children will be able to use their leave over alonger period, up until the child's 18th birthday;

the employee will remain employed while on parental leave; some terms, such as contractual notice and redundancy terms will still apply;

at the end of parental leave an employee is guaranteed the right toreturn to the same job as before, or, if that is not practicable, a similar job which has the same or better status, terms and conditions as the old job; where the leave taken is for a period of 4 weeks or less, the employee will be entitled to go back to the same job.

Agreements between employers and employees

Wherever possible employers and employees should make their own agreements about how parental leave will work in a particular workplace. They may choose to do so through individual, workforce or collective agreements. In small firms especially, where employers and employees work closely together, the needs of each can be agreed on an individual basis.

Agreements can improve upon the key elements set out above but they cannot offer less. For example, employees must be able to take the equivalent of 13 weeks' leave from work whether the local scheme allows this to be in days, weeks, one long block or as reduced working hours or a mixture of all of these.

Agreements can also cover matters such as how much notice of parental leave must be given, arrangements for postponing the leave when the business cannot cope or could be harmed by the employee's absence, and how it should be taken. Where employers and employees have not
entered into an agreement about these matters, or until they have done so, the fallback scheme set out in the Regulations applies.

Collective or workforce agreements can set aside the fallback scheme and replace it with a different set of arrangements entirely.

Where different arrangements are agreed with individuals, it will always be open to the individual to exercise his or her rights under any part of the Regulations, including the fallback scheme, if these are better in any particular respect.

The fallback scheme

The fallback scheme in the Regulations provides for employees to take parental leave in blocks or multiples of one week after giving 21 days notice up to a maximum of four weeks leave in a year subject to postponement by employer for up to 6 months where business cannot cope but leave cannot be postponed when the employee gives notice to take it immediately after the time the child is born or is placed with the family for adoption Parents of disabled children will have the flexibility to take leave a day at a time or longer if they wish. A disabled child is a child
for whom disability living allowance is awarded.

Employers are not required to keep statutory records of parental leave taken, although many will want to do so for their own purposes.When an employee changes jobs, employers will be free to make enquiries of a previous employer or seek a declaration from the employee about how much parental leave he or she has taken.

Employees will have the right to go to an employment tribunal if the employer prevents or attempts to prevent them from taking parental leave. An employee who takes parental leave will also be protected from victimisation, including dismissal, for taking it.

The Maternity and Parental Leave Regulations, which are subject to parliamentary approval, provide for a new right to parental leave which will come into force on 15 December 1999.

Department of Trade and Industry 1 Victoria Street London SW1H 0ET

Haddon v van den Bergh Foods Ltd.

Morison J., in one of his final decisions as President, appears to have abolished the 'range of reasonable responses' test developed in Burchell in unfair dismissal misconduct cases.

Haddon: The Facts

Mr Haddon was presented with a Good Service Award by his employers at a special presentation event after 15 years of service. He was told that he would have to return to work, to finish his shift, for one-and-a-half hours after the award ceremony.

At the ceremony, alcohol was available. Knowing of the company's rules that employees were not permitted to return to work after drinking at such ceremonies, he decided not to return to finish his shift.

The company's disciplinary procedures provided that a 'failure to carry out reasonable instructions' was gross misconduct. Mr Haddon was subjected to the disciplinary procedure for failing to complete his shift and dismissed.

The Employment Tribunal's Decision

The employment tribunal held that "most people would regard [his dismissal] as harsh". However, it held that it was reasonable for the employer to require Mr Haddon to finish his shift and, since failure to follow reasonable instructions was a specific act of gross misconduct set out in the disciplinary handbook, "it is not possible for us to say that dismissal was outside the range of reasonable responses."

The EAT's decision

The EAT held that tribunals have to go back to the wording of ERA 1996, s98(4), which requires tribunals to look at the equity and substantial merits of the case. Tribunal member must decide what is a reasonable response. Often, the best starting point is to consider what the tribunal members' themselves would have done in similar circumstances.

However, situations will arise when it may reasonable to dismiss, but equally reasonable not to dismiss. Adopting a 'range of reasonable responses' test was, effectively, applying a Wednesbury unreasonableness test to the employers' decision - and this is not what s94 requires. By adopting the traditional Burchell test, employment tribunals "were shrinking from the task which Parliament had imposed upon them to pass judgment on the fairness or otherwise of the dismissal."

Morison J.'s judgment is clear and informative. In a stark passage, he states that "we respectfully suggest that tribunals now return to the task in hand which is to apply the section without embellishment, and without using mantras so favoured by lawyers in this field.".

Pending an appeal, it looks as though we may all have to find a new stock phrase in hopeless cases!

Wednesday, 3 November 1999

New EAT decisions

Bennet v Essex CC (HHJ Peter Clark, 5.10.99): Consideration of Burton & Rhule v De Vere Hotels (the Bernard Manning case) - race discrimination - what steps an employer needs to take to avoid being saddled with responsibility for racial harassment by non-employees.

During v Waltham Forest Energy Services Ltd (HHJ Hicks, 6.10.99): Variation of contract - whether contractual retirement age of 65 had been varied by employer to 60 (so as to prevent 60 year old employee claiming unfair dismissal pursuant to ERA 1996, s109). No consideration of whether an upper qualifying age for unfair dismissal is contrary to Art. 119.

Kerry v Kreber (Morison J., 12.7.99, 13.7.99, 23.8.99, 24.8.99): A very thorough TUPE decision, covering a range of TUPE issues. The judgment is very readable (by TUPE standards!) and includes:
• confirmation of ECM Vehicle Delivery Services, namely that Suzen should not be followed and the fact no employees transfer does not mean there is no TUPE transfer;

• In relation to dismissals by the transferor prior to a transfer, the following principles of law apply:

(1) Every dismissal is effective to terminate the employment relationship - see Wilson v St Helen's Borough Council [1998] IRLR 706.
(2) A dismissal by the transferor by reason of the impending transfer will be automatically unfair.
(3) The employees concerned will enforce their remedies in relation to that dismissal against the transferee, in accordance with the Litster principle.
(4) If the main reason for the dismissal by the transferor is an ETO reason, neither Regulation 8(1) nor the Litster principle will apply.
(5) If the reason for the dismissal is an ETO reason but the dismissal is nonetheless unfair, then the principle in the previous point [4.] remains true. The Litster principle is not directed at the fairness of the dismissal, but rather at the reason for it. Thus, if an ETO reason is the main reason for the dismissal by the transferor but the dismissal is unfair the employee may recover only from the transferor. It is only when Regulation 8(1) applies that the Litster principle operates.
(6) If the dismissal is effected by the transferee then the employee's remedy lies against the transferee. A transferee may dismiss by reason of the transfer or for an ETO reason.

• A receiver must consult with employees before making redundancies

• Liability for the receiver's (i.e. the transferor's) failure to consult falls to be paid by the transferee.

Knight v King Edward VI Grammar School (HHJ Peter Clark, 7.10.99): Confirming New Victoria Hospital v Ryan [1993] ICR 201 that communications between an employer and a firm of personnel consultants is not protected by legal privilege, and therefore the employer can be cross-examined on the details of advice requested and received. Note the point was not fully argued in this case, but assumed to be correct by the EAT (and permission was not given to argue the point since it had not been challenged before the Employment Tribunal). The decision also gives some guidance on the requirement for a de novo approach to sanctions on internal appeals.

Nawal v Northern Spirit Ltd (Lindsay J., 6.10.99): An employee who complains of race discrimination, but fails to raise particular allegations of discrimination, is estopped from raising them in a subsequent complaint under the rule in Henderson v Henderson.

Young v John D Wood & Co (HHJ Hicks, 29.9.99): Constructive dismissal - repudiatory breach - affirmation. No new legal principles - just existing principles applied to the facts.

Wednesday, 27 October 1999

New Guide for Employing Disabled Persons

1. New Guide for employing Disabled People 2. 2 Gray's Inn Square Seminar Notes - Follow-up (please read)



The Minister for Disabled People, Margaret Hodge, yesterday launched a new guide to encourage and help employers in firms of all sizes to employ disabled people. The guide spells out the business benefits of taking advantage of disabled people's talents.

The guide, 'Employing Disabled People: A Good Practice Guide for Employers and Managers', is available from the Disability Discrimination Act (DDA) helpline (0345 622 633, or textphone 0345
622 644).

The guide gives advice to employers and managers on developing good practice in employing disabled people. It also describes employers' duties under the Part II of the DDA, which protects disabled employees from discrimination by employers (with 15 or more employees), and includes the duty on employers to make reasonable adjustments.



I understand that some people who have requested the seminar notes offered
in Monday's E-mail have been receiving messages saying that their request
cannot be delivered. This is due to difficulties being experienced with
my ISP (Demon). The messages WILL get through - please be patient.

For the same reason, many people will not yet have received copies of the
notes. About 50% of the seminar notes are sitting somewhere in Demon's
system waiting to be distributed. Again, please be patient - you will get
them eventually.

Saturday, 23 October 1999

Employment Law (UK) Mail List - Your Request for SI 1999/2830


Please find attached, as requested, SI 1999/2830 (The Employment Relations Act 1999 (Commencement No. 2 and Transitional and Saving Provisions) Order 1999).

Also attached is a copy of the Employment Relations Act 1999.

The documents are saved in HTML format. You require Internet Explorer or Netscape Navigator to read them. If you require a plain text version, please E-mail me (see E-mail address below).

Both attachments are parliamentary copyright material. Parliametary copyright material is reproduced with the permission of the Controller of Her Majesty's Stationery Office on behalf of Parliament.

Friday, 22 October 1999

Unfair Dismissal Compensatory Award - supplementary

Employment Law (UK) List -
The S.I. increasing the limit for the compensatory award to £50,000 has now been published (SI 1999/2830 - The Employment Relations Act 1999 (Commencement No. 2 and Transitional and Saving Provisions) Order 1999).

It makes it clear the the increased limit only applies to employees whose EDT falls on or after 25th October 1999 (see the transitional provisions in paragraph 8 of Schedule 3).

If you would like a copy of the S.I., please send a blank E-mail to

Thursday, 14 October 1999

Compensatory Award Increase - 25th October 1999 or visiting>

The date we've all been waiting for has been announced! With effect from 25th October 1999, the unfair dismsisal compensatory award will increase from 12,000 to 50,000.

The DTI press release does not make it clear whether this increase will only apply to dismissals where the EDT is on or after 25th October, or whether it will be retrospective so that any claims heard after 25th October will be subject to the new limit. Presumably, for reasons of certainty (and as has occurred in the past with increases to the compensatory award), it will apply only to cases where the EDT is after 25th October (and no doubt it will be made clear in the S.I., which will be printed in the next few days).

In addition, the following sections of the ERA 1999 will come into effect from 25th October:

s2 - tightening up the law protecting employees from discrimination on grouns of trade union membership or activities

s3 - giving the Secretary of State power to make regulations against the blacklisting of people because of T.U. activities - there will be a consultation paper issued with regard to this later this year

s18 - ensuring that employees working under fixed term contracts cannot waive their rights to claim unfair dismissal at the end of the term

ss19-21 - giving the Secretary of State powers to make regulations and issue Codes of Practice to eliminate discrimination against part-time workers and to help the development of flexible working time arrangements and opportunities for part-time work. There will be a consultation paper issued with regard to this shortly.

s22 - removing the requirement for residential members of religious communities to be paid the National Minimum Wage

ss26 and 27 - duties of ACAS are amended slightly

s28 - abolishing the offices of Commissioner for Protection against Unlawful Industrial Action and of Commissioner for the Rights of Trade Union Members

s29 - extending the powers of the Certification Officer

s30 - funding to promote partnership at work

s31 - extending time for prosecuting offences commited after 25th October under the Employment Agencies Act 1973

s32 - removing the territorial limits on employment rights, so that normal principles of international law will apply

s33-37 - simplifying the system of awards and payments made by employment tribunals or in redundancy situations

s39 - allowing tax and NI information gathered by the Inland Revenue to be used for the enforcement of the National Minimum Wage

s40 -amending the Schools Standards and Framework Act 1998 to reflect the reduction in June of the qualifying period for unfair dismissal rights from 2 years to 1 year

Wednesday, 13 October 1999

Disability Rights Commission

Bert Massie has been appointed as the first chairman of the Disability Rights Commission, which was created by the Disability Rights Commission Act 1999 to investigate and enforce compliance with the Disability Discrimination Act 1995. It has similar powers to the CRE and EOC to take up cases on behalf of those discriminated against.

Mr Massie, who is currently Director of the Royal Association for Disability and Rehabilitation, will start in his new post in January 2000.
It is anticipated that the Disability Rights Commission will be up-and-running by April 2000.

Somewhat fittingly, the appointment of Bert Massie (who is himself
disabled) is on different terms to those advertised. Mr Massie will work a 4-, rather than 5-day week, and will receive 80% of the advertised salary. The Secretary of State, David Blunkett, states that he is making reasonable adjustments to the post to take account of Mr Massies disabilities!

Please feel free to pass this bulletin to your colleagues. You can subscribe, free of charge, to the Employment Law (UK) mail list, by sending an E-mail to or visiting

Monday, 27 September 1999

Homosexuals in the Armed Forces

As has been widely predicted, the ECHR has this morning ruled in favour of Jeanette Smith, Graeme Grady, Duncan Lustig-Prean and John Beckett in their cases against the Ministry of Defence.

The Court ruled unanimously that there had been a violation of article 8 (right to respect for private and family life) and, in respect of two of the applications, article 13 (right to an effective remedy) of the Convention.

The four applicants had been discharged from the armed services between
1993 and 1995 on grounds of homosexuality.

The government (Lord Robertson, Defence Secretary) has just announced that all disciplinary cases still pending against homosexuals will be put on hold, and that ministers will consult service chiefs on how to put the ECHR's decision into practice.

The full text of the ECHR's press release, summarising the grounds for the decision, is set out below.

Wednesday, 22 September 1999

New Employment Tribunal Opening

The DTI will announce today that a new hearing centre is to open at Christine House, 4 Sorbonne Close, Thornaby on Tees. Cases will be heard from Monday 27th September 1999.

Wednesday, 15 September 1999

Advocate General provides opinion in Part-time pension rights case

The Advocate General has delivered his opinion in Shirley Preston & otrs. v Wolverhampton Healthcare NHS Trust.

This is a test case brought by 22 of 60,000 applicants to the employment tribunal, who have challenged certain time-limits in the Equal Pay Act 1970 for bringing claims seeking full membership of occupational pension schemes for part-time workers.

The ECJ held in 1994 that it was contrary to Article 119 (equal pay for men and women) to exclude part-time workers from occupational pension schemes.

The Equal Pay Act 1970 states that part-timers could only bring claims seeking retrospective instatement into a scheme within six months after termination of employment, and that any instatement was limited to contributions for a two-year period before such claims were brought.

Both these time-limits were challenged by Mrs Preston (and others).

The Advocate-General's opinion provides:

(1) The six-month time limit (i.e. claims have to be brought within six months of termination of employment) is lawful, in the interests of legal certainty; but that

(2) The two-year time limit (i.e. limiting compensation to the value of two years' benefits) was not lawful, and that part-time workers were entitled to backdate their pension claims to 8th April 1976 (the date of the ECJ's first judgment upholding the direct effect of Article 119).

The Advocate General considered that workers will only be able to secure retrospective membership of pension schemes if they first pay the contributions due in respect of all the periods of part-time work for which they seek recognition.

The judgment from the ECJ should follow in a few months (the Advocate General's opinion is not binding, albeit it is usually followed), and the House of Lords will then deliver judgment.

It is estimated that the ruling, if followed by the ECJ, will cost UK industry between £10billion and £17billion. Some 60,000 part-time workers will be entitled to pay in a few thousand pounds and receive back several times that amount in pension rights.

Tuesday, 14 September 1999

TUC President's speech -John Monks

National Minimum Wage

Mr John Monks (General Secretary) leading in on the debate on the National
Minimum Wage and moving paragraph 2.5 of the General Council report, said:
President and Congress, the young people who you have just seen on the video
put the case, I think, very well. The minimum wage is a good thing, young
adults should get it and we need to get the minimum wage higher. I want to
expand on those three points.

This Congress is the first to meet with a national minimum wage actually in
place, protecting the lowest paid in this country. We should never
under-estimate what this means - that 2 million working people, the majority
of them women working part-time, are benefitting from the national minimum
wage. Those receiving it received an average rise of wages of around 30%, and
no longer can employers drive wages down as low as people's desperation will
let them. We must never under-estimate our own achievement, the achievement
of the trade union Movement and our allies, in fighting against low pay, in
finally bringing this long-championed cause to fruition. There is some room
for a little bit of celebration and congratulations that we have been

However, young adults deserve more. The lower rate for 18-21 year olds is
unfair. The young people in the video said it. Why should they be paid less
for doing the same job? In line with the bulk of industry agreements, we want
to see the adult rate paid from aged 18. This is a key element that we are
currently pressing with the Low Pay Commission.

Congress, we are asking you to oppose the amendment in the name of the Bakers,
Food and Allied Workers Union as it is written. We want the adult rate at 18,
but we have also always recognised that lower rates can be appropriate for
particular types of trainees, for apprentices and other people being trained
for National Vocational Qualifications.

Quality, though, is the key. We are certainly asking the Low Pay Commission
to monitor the take-up of the development rate for adults. If getting a fair
deal for young adults is one priority, then up-rating the national minimum
wage is another. We said at the time that we believed that 3.60 was too low,
and the experience since April, when the national minimum wage was introduced,
certainly bears us out. Of course, and I think Stephen Byers said it, the
doom mongers have been proved totally wrong. Motivated by political
opposition to the principle of the national minimum wage, the Tories and
others predicted up to half-a-million job losses. What has happened?
Employment has continued to grow and, especially, in those sectors where most
national minimum wage recipients are employed. So the rate must be raised.
A higher rate could be sustained without job losses. The low paid deserve

In work poverty must be tackled and tackled effectively. We know that the
national minimum wage has an important role to play here, as does the Working
Families Tax Credit, which was launched just last week by the Government,
giving a guaranteed income to those with children working more than 16 hours a
week. We believe that the two initiatives taken together make a vital
difference to working people, but only if the national minimum wage is set at
a reasonable level which gives tangible benefits to the low paid. Otherwise
the Government will find that they are simply subsidising the exploitative

We are asking you to support Motion 19 as amended by UNISON. Four years ago we
launched a campaign for a collective bargaining target of 4 at Congress. In
the organised sector, that target has largely been achieved. Today, we want
to update this campaign and launch the new collective bargaining target of
5 a hour.

We recognise that our collective bargaining target will always need to be
higher than the minimum wage, and the UNISON amendment raises the issue of an
increase in the statutoryminimum. We know that we will need, very quickly, to
be giving serious thought to what our figure should be. I do not think that
now, actually, is the time to go into precise figures. We have not had that
debate yet. The top priority is for the Government to make an up-rating
reference to the Low Pay Commission next year once it has received the LPC's
report on monitoring, evaluation and young people.

We want a higher minimum wage, we want a fair deal for young people, we
recognise that the minimum wage is a historic milestone in the fight against
poverty and exploitation, and I am proud to move Chapter 2.5 of the General
Council's Report and the General Council's Statement on the National Minimum
Wage. Thank you.

TUC President's speech -Bill Morris

President, permit me to report on a year which has seen the most significant
advances for working people for over twenty years.

I report on a year in which two million people benefited from the introduction
of the National Minimum Wage.

A year which saw the introduction of the Public Interest Disclosure Act.

A year which will be remembered for the introduction of the Employment
Relations Act.

President, whilst all these are important steps forward, without doubt the
Employment Relations Act represents the most significant step in rolling back
18 years of attacks on workers' rights.

It represents the right to:

statutory union recognition for trade unions;

the right to representation in grievance or disciplinary hearings;

the right to a qualifying period for claiming unfair dismissal down from two
years to one; and of course

compensation pegged on an annual basis to the Retail Price Index;

But the achievements of the year have not just been about worker's rights;
they have also been about family rights.

Colleagues, we all know that the family unit represents the pillar of
stability in our communities.

We therefore welcome the new family friendly rights giving workers the
opportunity to achieve a better balance between working life and family

And in this unequal world we welcome the improved protection for union
members against discrimination;

President, these are real gains that we will use to defend our members.

But conference, whilst we welcome the legislation we know from our daily
experience that it falls short of what we want and what our members need.

When the Bill was published I said then and I say now `It is the first step
and cannot be the last word towards restoring workers' rights'.

A first step towards real opportunities for the movement.

A first step to rebuilding our membership.

A first step to opening-up trade union organisations to the millions of
workers who still need and want to join our movement.

A giant first step towards a new brand of trade unionism.

But colleagues, we all know that there is still some unfinished business to

Much of this unfinished business is listed in Chapter 2 of the General Council
Report and also in Composite 2.

Yes we have some unfinished business because our task cannot be completed
until we see the repeal of all anti-trade union laws.

Our task cannot be completed until all British workers have proper protection
under the Working Time Directive.

Our task will not be completed until we have employment rights from day one.

I say that access to justice cannot depend on how long you have worked for an

If a dismissal is unfair, then it's unfair after one day, one week, one month,
or one year.

Our task cannot be completed until we have the right to strike without
dismissal - a basic human right, as enshrined by ILO convention.

Colleagues, 8 weeks protection against dismissal for taking part in a lawful
strike is not enough.

You ask the Critchley Label workers.

You ask the Skychef workers. That gallant band of men and women who were
sacked ten months ago for taking part in a six-hour strike.

Our task cannot be completed until every single Skychef worker is reinstated.

Colleagues, in the Millennial challenge debate this morning, we heard why the
TUC must play a leading role in providing co-ordination, advice and
information to affiliates on the new opportunities, which exist.

In the year ahead the General Council will vigorously implement its Action
Plan to ensurethat unions are fully briefed on the many Codes and Regulations
which will be published relating to the Employment Relations Act.

YES - the TUC must become a national resource on how to best utilise the new

Information about how the CAC is operating will help us to decide when and
whether to apply for recognition.

We shall establish a network of key officers in unions to advise on
applications to the CAC.

The General Council will also closely monitor the appointments to the Central
Arbitration Committee, to ensure that the TUC's interests are well

Colleagues, the next year will be a crucial one and good intentions alone will
not be enough. We will be required to follow two simple rules -
self-discipline and self-regulation.

Let me offer a word of warning here - if we fail to regulate ourselves, then
as sure as night follows day, regulation will be imposed from outside.

If we can't negotiate between ourselves how then can we negotiate for others?

Despite the scale of the challenges ahead, I am confident that we shall

I am confident about our success because what binds us together is our shared
history, our common values and our desire to promote the interests of all
working people.

Colleagues, we will not look back in anger, we shall look forward with a new
found determination.

Colleagues, we have not just the will to win, we have the vision to succeed.

Together, we have campaigned long and hard for these new opportunities.
Together we shall make them work.

TUC President's speech -STEPHEN BYERS

As Secretary of State I have welcomed the advice, representations and views
put forward by the TUC.

That doesn't mean that I will always agree with the points put forward.There
will be times when I have to say no. Times when I can say yes.But in a
democracy this is a healthy relationship.

Not an overly close one that many felt existed under previous Labour

Now I appreciate that at times decisions we take in Government will cause
tension between us. There will be disagreement and occasionally a feeling of
anger and frustration as far as you are concerned.

When this happens we need to ensure that we maintain a dialogue. Our actions
in government will always be to put the national interest first. That means
that in all we do we will operate on the basis of fairness not favours.This
Government was elected on an agenda of modernisation and reform.

Not to be rooted in the past nor - as many Governments before have been
-overwhelmed by events in the present. But a Government with a clear vision of
the future direction of British society and the British economy. That vision
and sense of direction is vital as we are witnessing a fundamental shift
taking place in our economy and society. It is driven by globalisation,
knowledge, technology and innovation.

It is changing the nature of work and of the workforce itself.The successful
economies of the future will excel at generating and developing ideas and
exploiting them commercially.The first industrial revolution - in which we led
the world - was largely based on investment in plant and machinery.

The industrial revolution that is now taking place is a knowledge based
revolution and it will require investment in skills, training and learning.In
all this education is the key. As a government we are doing things
differently. I appreciate that for some this is not easy.

But week in and week out we are delivering policies and doing so in a way
which will retain and consolidate the support of that historic coalition that
gave us our landslide victory in May 1997.

Let's look at some of our achievements over the last two and half years. We
restored Trade Union Rights at GCHQ and cut corporation tax. Signed the Social
Chapter and led the case for reform in Europe.Began an investment of 40
billion in our schools and hospitals while at the same time cutting the rate
of income tax.Introduced a National Minimum Wage and cut the rate of tax for
small business to its lowest ever level.Within the month we shall see the
introduction of the Working Families Tax Credit and we have also introduced
tough measures to tackle fraud in our benefits system.

We've established the New Deal for the young and long term unemployed and a
Research and Development tax credit for business.Now the Tories still oppose
the National Minimum Wage. Their new DTI Shadow Minister Alan Duncan described
the minimum wage as a cretinous idea.Now a cretin is a fool or stupid person
- a far more accurate description of Alan Duncan than the minimum wage which
has directly benefited two million people.The Tories would scrap the New Deal.
They say it's been a failure.

Let's look at the facts not the prejudice. 300,000 young people already
helped. Youth unemployment cut by a half. Tories regard that as a failure.
They would be, but we are not prepared to see a whole generation laid to waste
- they must have hope for the future.The Tories say that they would not
support the introduction of the Working Families Tax Credit. This is the
latest sign that they have learnt nothing from their election defeat.

Support for hard working families is now a key dividing line . The Working
Families Tax Credit will make work pay and give parents a real incentive.It
will leave one and a half million families an average 24 per week better off.
The end of July saw the Fairness at Work legislation onto the statute book.

A new settlement for the workplace. A settlement based on partnership and
minimum standards.Part timers with the same employment rights as full timer
workers. Part time workers no longer to be treated as second class
citizens.Trade union recognition if that's what the workforce wants.Unfair
dismissal regulations applying after 12 months not two years.

An end to blacklisting for trade union activity and discrimination against
someone because they chose to belong to a trade union.Whistleblowers - those
courageous employees who expose wrongdoing in the workplace are now entitled
to unlimited compensation if they are unfairly dismissed.Given the crucial
part played by health and safety representatives I was pleased to introduce a
late amendment to the legislation which entitles them to unlimited
compensation if they are unfairly dismissed.

Of course, in the Fairness at Work legislation, the union movement has not
secured everything it wanted. Neither has the business community.A balance had
to be struck. This was fairness not favours in action.

One of the great challenges facing parents is how to juggle the responsibility
of bringing up a family with holding down a job.We need to introduce family
friendly policies into the workplace and we are beginning the process of doing
exactly that.

we have extended maternity leave by four weeks

additional maternity leave will be available after 12 months of employment -
a reduction from the present two years

introduced 13 weeks parental leave for both mothers and fathers

a right to time off work to deal with a family emergency

This right will start from day one of employment.

No longer will a working parent have to worry about losing their job if they
are called away to care for a sick son or daughter or an ailing parent.

I recognise that the long hours culture that exists in our country is not
supportive of family life.I know that many of you have concerns about changes
we have proposed to the working time regulations.What is clear to me both in
relation to the working time regulations and our proposals for family friendly
policies more generally is that we need to win over hearts and minds.

The adoption of these policies represents a major change in labour market
policy. A change that can benefit both employers and their employees.But they
will only be of benefit if they are introduced in a sensitive and sympathetic
way.I believe that these changes can be introduced in a way which secures our
objectives without placing an undue bureaucratic burden on business.

It is not our intention to exclude white collar workers from the protection
offered by the Working Time Directive and we do not believe that our
amendments to the regulations do this.We need to make this clear. I believe
the best way of doing so will be in the guidance to the regulations which we
will develop with the Health and Safety Executive.As our usual practice we
will discuss the guidance with the TUC and employers' representatives.

As we implement detailed measures in the whole areas of employment policy, I
want wherever possible, to avoid using the blunt instrument of regulation.
Instead, we want to develop more flexible approaches to solving these common
problems, through alternative mechanisms such as codes of conduct. Ensuring
we achieve our goals will therefore require more imagination and even greater
constructive engagement from unions, working in partnership with business.

That's why today I am pleased to announce that I'm inviting applications to a
Partnership Fund. The Partnership Fund will have 5 million to help foster new
attitudes and approaches to partnership in the workplace.

Partnership must be seen as more than a warm word. It should involve real
changes in the workplace.New ways of working together.New approaches to
training and development.New systems of performance and appraisal.There are
already many good examples of partnership in practice.

We want the Partnership Fund to act as a catalyst and we especially want ideas
based on family friendly policies and how the partnership approach might
benefit small businesses.

Here in Britain we are putting in place the policies which will lay the
foundation for our economic success in the future.Any consideration of our
future prosperity cannot ignore the question of Europe.

Now is the right time to make the case for Britain in Europe. We must do so
from the standpoint of the British national interest. Nearly 60% of our trade
- 100 billion- is now within the EU. The share of our exports going to EU
countries has risen rapidly since we joined the EU.

Many markets which were closed in Europe have opened up, and the UK has been
in the forefront of the liberalisation agenda. British jobs and investment
increasingly depend on Europe. It is our key market. Our exports to France
and Italy exceed those to the whole of North America.

Exports to Belgium and Luxembourg are double those to Japan. Financial
services, in which the City of London plays a vital role, now provide a
million jobs in our country and overseas earnings in excess of 25 billion a
year. Europe is of great and growing significance as a market for these

In total millions of jobs depend on Europe. As any inward investor will say,
increased investment depends on two things above everything else - Britain's
modern flexible and stable economy and its membership of the world's largest

There are 380 million consumers in the European Union. In the next ten years,
with enlargement, there will be 100 million more. This is the big prize that
attracts the major players in our global economy. It is against this backdrop
that the talk of renegotiation is so dangerous. Yet that is exactly what the
Tory party is doing.

The effect of the marked shift in Tory thinking in Europe is to ensure that
the issue of Britain in Europe is now at the heart of a party political
debate.It means that yet again that in this generation we will need to make
the case for British involvement and participation in Europe. For the
benefits of EU Membership.

This is now a battle that we must win.Over the years it is a question we have
faced on a number of occasions. In or out of Europe. In the end, often after
long and agonised debate we have always chosen to be in.

This conclusion has not been the triumph of political dogma or by submitting
to some powerful vested interest, but due to sound common sense, always
putting the national interest first.

Europe matters politically and economically. Influence and partnership in
Europe is essential to the British national interest.The Conservatives have
confused the powerful case for reform in Europe with the case for
disengagement and a retreat to the margins.

Those of us who believe in importance of Europe must be the first to recognise
and argue that the Europe we have today - its institutions, its working
practices and its policy priorities is not designed for the challenges we now
face. Reform in Europe is vital because its direction needs to be clear, It
needs to reflect the challenge of the global economy in the 21st
century.Europe must make a reality of the Single Market in all sectors.

It must recognise that regulation can be a barrier to economic growth and job
creation. To achieve this reform programme perhaps above everything else
Europe needs to be far more forward looking. Working to an agenda of
education, enterprise, innovation so that the knowledge based economy of the
future is seen as a bringer of opportunity and not as a threat.We need to be
engaged at all times, to be building political alliances and to be shaping
Europe's development. Not having it shaped by others which has all too often
been our experience in the past.

As soon as we came into office we pressed the case for economic reform to
make the product, labour and capital markets of Europe more flexible. Without
banging the table we have successfully promoted Britain's interests by arguing
our case - as a result we have been able to:

cap the growth in EU spending

win a higher share of funding from regional and structural funds for the next
six years.

safeguard our nations border controls

end the beef ban by agreement on the basis of objective scientific evidence

and we have protected our rebate.

So we can see the benefits of Britain in Europe and the success we can achieve
as a result of constructive engagement. In our dealings with Europe we must
always act in the national interest - the British people would rightly expect
nothing less.

This must also be our response to the single currency.There is endless
speculation about the government changing our position on the euro.That we've
gone cool on the idea or that we've become more enthusiastic; that the brakes
have been applied or the foot is now hard down on the accelerator. All this
press speculation has meant that a whole Norwegian forest has been felled for
no good purpose.

Our policy remains the same. It was stated by the Chancellor in October 1997
and repeated by the PM on 23 February this year.The government's view is that
membership of a successful euro would bring benefits to Britain in terms of
jobs, investment and trade. The Chancellor has laid out the five tests that
will need to be satisfied in our national economic interest.

And of course the final decision will rest with the British people in a
referendum. Some people argue that we should rule our joining for a period
whatever the economic conditions. Some say that we should set a date for
joining whatever the economic conditions. We may well hear these arguments put
during congress this week.

Without wishing to cause offence I must make it clear that we reject both
approaches. No-one will push us into adopting either of these two positions.
Because they are not right for Britain.

They are not in our national interest.Meeting the economic conditions will be
the test. It is principled, pragmatic and practical. It is our settled
conviction and will remain our policy.

We are living in a world of change.The nature of work is changing. More work
part time. More people work on a temporary basis, or have fixed term
contracts.Fewer work on the shop floor, and there's been an explosion of
service based jobs. More work in small businesses.The composition of the
workforce is also changing. More women are working. Some 52% of married women
with a child under 5 now work, again more than double what it was a generation
ago. More families depend on two earners.

The businesses and organisations we work in face new challenges.More
competition. A greater pressure to innovate to stay ahead. A greater pace of

Businesses are having to become more flexible. With more and more people being
asked to take on real responsibility. Change is the order of the day. We
all need to recognise that. The union movement is no exception. The
advantage of having laid down the conditions for economic stability is that it
gives us the space we need to react to these longer term trends.

We can see change as an opportunity not a threat.We all have a role to play
here, but only if we are prepared to embrace change. Because these new
working patterns put new responsibilities on us all. On Government, on
businesses and on trade unions.A responsibility on Government to ensure
minimum standards of fairness and treatment for all in society. A
responsibility on business to work in partnership and ensure that the task of
making a reality of the flexible labour market does not fall solely on working
people. A responsibility on trade unions to seek consensus not conflict to
support dialogue and avoid damaging disputes.

Flexibility does not have to - and must not - mean insecurity and poor

This only leads to additional stress for many whose lives are already all too
stressful. And it leads to low morale and poor productivity. We must help
people to adapt to the new world of fast changing markets and shifting
patterns of work without sacrificing their quality of life. On many occasions
over the years trade unions have been at the forefront of change.Unions have
been swift to adapt to the vast changes in collective bargaining which have
occurred over the last twenty years.

Unions now negotiate a far wider range of packages for their members embracing
new forms of pay and new forms of working. Unions were among the first to
recognise the importance of training. With support for modern apprenticeships
and the need to train workers in broad based skills. Unions have embraced the
Investors in People approach. One reason why the UK's health and safety
record is one of the world's best is the important role which trade unions
have played on safety issues.

Union structures and services have adapted greatly to changed labour markets.
But the challenge for unions as for our country is to reform. To find new
ways to work with members and their employers to raise skills, improve
productivity and to play a role in making Britain a more prosperous and
competitive nation.

Working in partnership with business. Working with members to strengthen
their skills and to deal with a more challenging labour market. This is the
unions' new agenda and one which we in government support. To look back in a
world of change is to condemn yourself to opposition. This is a lesson William
Hague needs to learn. We simply cannot build a future for our people based on
a return to all our yesterdays. Those who resist change are not learning
lessons from history but living in it.

Half way through a Parliament is often the most challenging time.Voices call
for consolidation and a reconsideration of our objectives and direction. But
this is not the time to stand still. It is the moment to push forward on our
agenda of modernisation and reform. If the world changes but we as a political
party do not then we become redundant. Our principles become dogma. That is
why as a party we have changed.

In government we have demonstrated the nature of this change. Not to betray
our principles but to fulfil them. Not to lose our identity but to keep our

It is because of change that we are able to be a progressive force for
fairness and justice and not an historical footnote.There can be no
distractions or diversions.Our objective must be a dynamic knowledge based
economy founded on individual empowerment and opportunity.

Where government enables but does not dictate and the power of the market is
harnessed to serve the public interest.The challenge for government is how to
prepare Britain for a world in which change is continuous and knowledge is
the new currency.

Successful economies and societies will be those that can adapt to the demands
of such rapid change, that are flexible and creative and manage change rather
than being overwhelmed by it. Finding ways to include all their people.

An approach built around a new coalition, but with clear objectives to create
a better standard of life for our people, to ensure British business succeeds
at home and abroad, to tackle exploitation in all its forms. An approach
which recognises that the role of Government has fundamentally changed, but
that it still has a critical part to play in improving the performance of the
British economy and in improving life for all.

First and foremost, we can create a stable economic environment, ending the
wealth destroying cycle of boom and bust that has dogged Britain's post-war

We must never forget those days in the early 1990s with inflation at 10% ,
interest rates at 15% and over 1 million manufacturing jobs lost. Stability
matters more than ever in the new economy. Because more than ever we need
businesses to invest in knowledge, to take risks to stay ahead in fast moving
markets. We can ill-afford this vital investment to be put off through fears
about the economy and its long term stability.With stability achieved,
uncertainty removed, there are great opportunities ahead.

But they will only be achieved if we embrace the new and leave the old ways of
doing things behind. On the eve of the new century that is the challenge we
all face.I am confident that by working together, trade unions, business and
the government we will be able to meet that challenge. In so doing we will
discharge our responsibilities to our people and our country.


TUC President's speech - Lord MacKenzie

President's Address

The Vice-President ( Mr John Edmonds ): I now call on your President, Hector
MacKenzie, to address Congress. Hector. ( Applause )

The President: Colleagues, this week marks the end of my year as your
President, and it has been a year that I have thoroughly enjoyed.

My personal journey from the Blackpool Winter Gardens to the Brighton Centre,
on your behalf, has taken in such locations as Helsinki, Killarney, Cairo and
even Bridlington. The geographically minded will have noticed that all of
them are beside the sea, a lake or a river and, as my colleagues in UNISON and
on the General Council will know, I am only ever completely at ease when I can
hear the sound of the ocean - so it is good to be here in Brighton.

I was brought up in a number of the Western Isles of Scotland where my father
was posted as a Principal Lighthouse Keeper. My dad was also Secretary of the
Scottish Lightkeepers Association (later to become part of the T G) and it was
from him that I absorbed trade union values as well as inheriting his loveof
the sea. I know he would be proud of me if he could see me today looking out
over this sea, albeit this morning it happens to be a sea of faces.

I spent some time in the lighthouse service myself before going into nursing,
so you can be assured that I am well enough trained in meteorology to spot any
potential storms that might be blowing up this week as I look out from my
presidential chair.

Personally, my appointment to the House of Lords, along with Bill Brett and
David Lea, was a highlight, something that had never occurred to me at the
start of the year, nor indeed at any time in my career. As I said to the
Irish Congress of Trade Unions soon after my appointment, the Lords is a
peculiarly British contribution to democracy whose members are linked with
convicted criminals to be denied the right to vote in general elections. But,
nevertheless, it is an honour to be only the second member of the Lords in the
TUC's history to preside over Congress and I am sure my appointment reflects
credit on the trade union Movement as much as it does on me as an individual.

I have also reflected that it is somehow perhaps appropriate that a former
lighthouse keeper should end his career as a peer. ( Laughter ) Although I
hope at the start of this Congress week I am a little bit less dilapidated
than the peer along to the west of the sea front here, but we will see how I
feel by Thursday afternoon.

Congress, it is customary for Presidents in their opening address to review
the year, to reflect on our successes and areas where we have fallen short of
our ambitions, paying due regard to all areas of policy and to every special
interest. Equality invariably features on the checklist - and rightly so -
but to my mind equality is not just another issue. It must be central to all
that we do.

Last year the most emotional moment of Congress was when Neville Lawrence
spoke from the heart. Earlier this year, with his words still fresh in our
minds, we witnessed a horrificoutbreak of violence against vulnerable
communities in London. I was part of a General Council delegation that went
to visit Brixton and Brick Lane following the bomb attacks on those areas and
we demonstrated our solidarity with those communities, as we did with the
victims of the bomb in Soho. The TUC made absolutely clear where it stood.
We believe in a society that is strengthened by its diversity, that is proud
of the fact that we are all different but equal, and we say that the one thing
we will not tolerate is intolerance itself. I am sure that Congress would
endorse those sentiments today. ( Applause )

I joined the General Council in 1987 and soon won the reputation as a fully
paid-up member of the 'awkward squad', as I pressed the case for the
setting-up of an Equalities Department at Congress House, which was contrary
to the prevailing establishment view at that time. That case was won and I
firmly believe that the TUC is better off as a result. But, despite that
victory and all of the work on equality which has been undertaken in the
intervening years, there is still a long, long way to go.

Equality cannot just be an add-on, it must be a central part of our work,
because how can we appeal to that diverse mix of people that go to make up
today's workforce - men and women, old and young, the variety of access needs,
of every race, belonging to different communities and different sexual
orientations - when we ourselves appear to represent such a limited section of

Yes, we have made advances and, yes, we can set examples and we are doing so.
The proportion of women in the trade union Movement and here at Congress is
rising. We are undertaking race monitoring again this week to see what
progress we are making, if any, in ensuring that we more accurately reflect
the racial composition of trade unions and the workforce.

This week we will be making special efforts to give more of a voice to youth,
and I am pleased that amongst our guestspeakers will be Sir Herman Ouseley,
the Chair of the Commission for Racial Equality, and Baroness Jay, the
Minister for Women.

But, delegates, let us also ourselves set an example this week in this, our
showcase Conference. Let us see if we can do more to reflect that diversity
in the speakers from this rostrum, and not just in the equality debate but
throughout the week.

Amongst other things, as the first man to undertake general nurse training at
West Cumberland Hospital, and as the first practising general nurse to lead
COHSE, the Confederation of Health Service Employees, I have had a fair bit of
experience in breaking stereotypes and I will be looking to you to break some
stereotypes this week. I will be looking to unions to put forward more women
speakers, more members with disabilities, more black representatives, more
younger delegates, and I hope that by the end of the week we will have gone
some way towards demonstrating that equality and diversity are reality and not
just aspiration. ( Applause )

In emphasising equality, we also make the case for a system of work that
recognises that there is a life outside the factory gate, outside the office
door and beyond the demands of the job. The fact that the new Employment
Relations Act contains a section on family friendly policies sends out a
strong signal in that direction.

We hear a lot about the flexible labour market, but flexibility is not just
about bending over backwards to do what the employer wants. Flexibility is
about knowing that, yes, sometimes work has to come before other commitments,
but sometimes family and other commitments have to come before work. The best
employers recognise that already. The sooner that others do so the better,
and if that needs legal backing so be it. Let there be no complaints of red
tape and over-regulation from those employers who would sooner tie their
employees up in knots than allow them time away from the job to care for a
sick child or an ailing parent.

We know that the new law is not perfect. Some of you have expressed your
reservations in public and in no uncertain terms -and rightly so - but on
this, as on the rest of the Act, let us get the balance right. Let us express
our concerns and let us recognise what has been achieved. Let us say what we
have got falls short of our hopes and of our expectations, but let us also
acknowledge that it is far more than we had before. Let us continue to work
to improve the laws that we now have, but let us also put the law that we have
into practice.

Above all else, let us use the new legislation to our best advantage and to
the best advantage of our members and our potential members. The new law is
the biggest advance for working people in our generation, but it will only
mean anything if we gear ourselves up to use its provisions. Getting
legislation onto the statute book is just a start; getting it put into
practice in the workplace is what really makes the difference.

There are good signs. We should be proud of the fact that this year, for the
first time in 19 years, there are more trade unionists represented at this
Congress than there were at the last. It is a small step forward, but it is a
step in the right direction and it is one on which we have the chance to
build. But trade union membership does not increase of its own accord. It will
only grow if we devote the energy and if we devote the resources to making it

The Organising Academy is one of our great successes of the past year. Unions
are working together to build organising skills. They are putting the good of
trade unionism above their own union's interests and, let us face it,
membership will not grow if potential members face a bewildering array of
initials and neither, Congress, will membership grow if there is a spectacle
of union officers and activists seeking to do each other down.

Later this morning we will debate the Millennial Challenge. We will look at
how we can create a new trade unionism in a newand warmer climate. We will
need to be realistic about the opportunities - yes, and be realistic about the
dangers too. Sometimes we need to take a courageous step into the unknown.

I was involved in one such step a few years ago when we created UNISON out of
three separate, three different, three very distinctive unions each with a
very proper pride in its own cultures, its own traditions and policies. It
was not easy but it was right that it be done and it has brought great
benefits. The gain is significantly greater than the pain.

I think the time is right for all of us, as a Movement, to take similar
courageous steps. I am not necessarily, Congress, talking about mergers.
What I am talking about is a change of culture, a change of attitude, a change
of approach, so that we will be relevant - relevant to the modern workplace
and relevant to young people.

This is the last Congress of the 20th century. We have a chance to make it
the first of a new and more positive era. Of course, our capacity to grow and
the strength of trade unionism depends to some considerable extent on the
strength of the economy. It is easier for us to recruit and to help our
members fulfil their aspirations for improvements in working conditions and
rising living standards when the economy is growing than when there is a
recession. On the face of it, we now live in what the economists call the
Goldilocks economy, where, like the porridge in the fairy story, growth is not
too hot and it is not too cold.

Inflation is at its lowest level for years and unemployment is at levels that
we have not known since the 1970s, but beneath that calm surface there is a
swirl of currents. We know that in some areas unemployment, and especially
youth and long-term unemployment, remains a problem despite all the best
efforts of the New Deal. We know that manufacturing industry is struggling
against the burden of an overvalued pound. We know that job insecurity is
endemic. We know that the long hours culture is hard to break, as well as
being hard to reconcile with the family friendly noises that we hear from all

So the need for unions to bring some sanity, some sense of order and
equality to this more fragmented, more uncertain world of work has never ever
been greater.

Our Congress theme this week is partners at work. Trade unionism has always
been about partnership, about working together for the common good. Our
central message must be that if we stick together we are better off than if we
all go our own ways. But in this new and changing world of work, it is not
enough for people in one workplace and in one trade to stick together. We
need to build bigger, stronger partnerships -partnerships between unions,
partnerships with Government, partnerships with pressure groups and, indeed,
partnerships with employers too.

Let me make it clear, partnership with employers is not an easy option. It is
not saying that we are a soft touch, because that we must never be, but it is
a recognition that we have different interests, interests which are not
irreconcilable, and what we share in common is greater than what divides us.
What we share in common is the success of the place where we work, be it in
the public services or in private enterprise. For the simple truth is that we
cannot build a successful trade union Movement on the back of a failing
business. Where business fails then trade unionism will fail too; where
business succeeds then we too have a chance to grow. This is true in services
as much as it is true in manufacturing.

It is true as well, Congress, in the area in which I have been involved for a
great deal of my working life, the National Health Service, and as a Health
Service person allow me to reflect just a little on some of the changes that
have been taking place in that area of national life in which we all have an
interest, usually at the start and at the end of our lives, and in varying
degrees in the space in between.

There is much to be commended about the changes that have taken place in the
Health Service since May 1997: the NHS internal market has ended; thanks to
the hard work of NHS staff,waiting lists are coming down; more money is being
invested; there is a new atmosphere and dialogue at national level;
applications for nurse training are much better for the coming academic year;
there is a commitment to that concept of partnership; there is much good in
the Health of the Nation White papers, in Primary Care Groups, in the National
Institute for Clinical Excellence and in Health Action Zones; and a
successful booked appointments system will be a winner for patients and staff.
There are other great innovations, like the NHS Direct and walk-in clinics,
leading to a predictable, but disappointing, resistance from the British
Medical Association to these nurse-led initiatives.

But there are still areas in the Health Service of potential difficulty. Pay
and working conditions still need much attention. Pay is generally too low,
it is certainly not equitable and we cannot rebuild a quality Health Service
that is flexible and adaptable if porters are paid a pittance and junior
doctors are too exhausted from long hours of duty to give patients the care
that they need.

As for the Private Finance Initiative (PFI), the Government has made a number
of changes, all of which I welcome, but more needs to be done and I cannot
help but make it clear that I regard PFI as bad public policy - a short-term
fix to get hospitals built which will add up to a long-term problem which
politicians of the future will have to pick up, and I don't want public
service workers picking up the pieces in the meantime.

But overall it has been a good beginning for the Government with real,
positive improvements as a start to repair the wreckage of 18 years of
neglect, and it is a similar picture elsewhere.

As a Scot I cannot but record my pride and joy at seeing the re-establishment
this year of the Scottish Parliament which I and my family had advocated for
as long as I can remember, even in the post-war days when devolution was
certainly not on anyone's agenda.

As a representative of UNISON, I cannot but record my satisfaction at seeing
the introduction of a national minimum wage, a policy which NUPE, one of
UNISON's constituent unions, had initiated and subsequently long campaigned.
Of course, there are reservations and qualifications about the detail of the
national minimum wage, of course there is scope for improvement, but on this,
as on all the other things I have spoken about, the establishment of a
national minimum wage is a solid achievement that must be acknowledged.

Congress, I began on a personal note and I want to finish here as well. One
of the high points of my year was my visit to the Irish Congress. As a
Highlander whose forebears were subjected to the forcible clearances, potato
famines and emigrant ships of the last century and, not least, because of
language, culture and of course my favourite sport shinty (which is a close
relative of the Irish hurling, for the uninitiated) it is not surprising that
I have got a Celtic affinity with Ireland and with the Irish Congress. The
warmth of their hospitality will stay with me for a very long time.

The commitment to the peace process in Northern Ireland was total. The role
which the Northern Ireland Committee of the Irish Congress and trade unions in
the North have played for more than thirty years was an island of sanity in a
sea of sectarianism and violence, and their part in taking that peace process
forward seldom receives the recognition it deserves, though at last year's
Congress Mo Mowlam did so, and did so with her own unique sincerity.

The past year has been one in which the peace process has moved forward more
slowly, much more slowly than we had hoped at this time last year, but it is
still on the road and let us work to keep it moving forward. Let those on
this side of the water who dare to criticise the motives of the Prime Minister
and of Mo Mowlam look to the lessons of history, from which they must learn
that it is foolish in the extreme to play British political games about the
North of Ireland, and to do so plays with the lives of the people of Ireland.
A bipartisan political approach atWestminster is vital to a successful outcome
to the peace process.

Perhaps one of the more testing moments of my year as President came during my
visit to Cairo for the Egyptian trade unions national centre centenary. The
usually thorough Congress House briefing neglected to include military
intelligence which might have prepared me for the greeting on my landing in
Egypt, which was to be told that my Government had started bombing Baghdad a
mere one hour before. At that predominantly Arab gathering a broadening of my
Highland accent and an emphasis on the distance of the Western Isles from
London were quickly brought into play! ( Laughter ) Seriously though, the
hospitality and the kindness of the Egyptians was magnificent.

Congress, apart from that tiny lapse, the support I have received from all of
the staff at Congress House, and from my own staff at UNISON, has helped me no
end in seeing me through a very memorable year.

It is, indeed, a great privilege to chair Congress. I thank you for your
attention. I hope I have not pre-empted too many speeches and, more
importantly, I hope that not too many of you seek the right of reply to my
remarks. But my very best wishes to you all and thank you very much indeed.