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.
Friday, 26 November 1999
Thursday, 25 November 1999
Yet more EAT decisions...
NEW EAT DECISIONS
The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf
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.
The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf
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.
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 - http://www.danielbarnett.co.uk
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 http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd991118/car.htm . 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.
Comment
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).
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 http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd991118/car.htm . 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.
Comment
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...
NEW EAT DECISIONS
The following decisions have been placed on the EAT website recently. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsfBanks 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.
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.
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:
P/99/888
4 November 1999
BYERS LAYS REGULATIONS IN PARLIAMENT GIVING PARENTS TIME OFF TO CARE FOR YOUNG CHILDREN
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 ( http://www.dti.gov.uk/ir/erbill.htm ) 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 ( http://www.legislation.hmso.gov.uk/stat.htm#1999 ), 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.
PARENTAL LEAVE
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
The DTI press release is copied below:
P/99/888
4 November 1999
BYERS LAYS REGULATIONS IN PARLIAMENT GIVING PARENTS TIME OFF TO CARE FOR YOUNG CHILDREN
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 ( http://www.dti.gov.uk/ir/erbill.htm ) 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 ( http://www.legislation.hmso.gov.uk/stat.htm#1999 ), 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.
PARENTAL LEAVE
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!
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.
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.
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