The Court of Appeal has today handed down its decision in cCabe v Cornwall County Council (CA, 23rd December 2002).
Readers will be delighted to know the law on manner of dismissal remains as confused as ever, despite the valiant attempts of the Court of Appeal to analyse and distinguish the existing cases of Johnson v Unisys, Gogay v Herts County Council and Eastwood v Magnox.
All three Lord Justices (Auld, Brooke and Sedley LJJ) point to the difficulties in understanding this area of law. Sedley LJ comments on the absurdity (my word, not his!) of an employee being able to recover substantial damages at common law if his employment terminates because of psychiatric trauma caused by the implied duty of care, but as soon as the employer's conduct becomes serious enough to be a breach of trust and confidence, his leaving "becomes a matter of constructive dismissal and his loss becomes subsumed in his limited statutory rights."
The decision is worth reading, if only as a summary of the distinction the courts are drawing become breaches of trust and confidence prior and separate from dismissal, in which case it seems actions can be brought in the civil courts for substantial sums of damages, and breaches of trust and confidence prior to but bound up in dismissal, in which case the remedy is for unfair dismissal - with all the compensation caps that entails.
Monday, 23 December 2002
Saturday, 21 December 2002
Injury to Feelings - Court of Appeal
[Two job advertisements for the Citizens Advice Bureaux specialist support unit in Wolverhampton appear below]
The Court of Appeal has handed down its decision in Vento v Chief Constable of West Yorkshire Police (CA, 20th December 2002).
This is likely to become the lead case on the assessment of damages in discrimination cases.
Facts
Ms Vento always wanted to be a police officer. She was initially prohibited from joining the force due to the height requirement. When this requirement was relaxed in 1995, she joined the force as a probationary constable, aged 28. At that time, she was married with three children.
After about two years, a series of incidents occurred which led to a number of criticisms being made of her, eventually leading to her dismissal on grounds of lack of honesty and lack of performance. The employment tribunal found this was less favourable treatment which would not have occurred if Ms Vento were a man, and found in her favour on liability for sex discrimination.
Injury to Feelings
The employment tribunal noted she had been put through "four traumatic years" of bullying, leading to clinical depression. She then had the "shock and disappointment" of dismissal, a total of 22 days in the tribunal "in which her private life was subject to minute scrutiny", the uncertainty of an appeal on liability and the loss of "a satisfying and congenial career". They awarded £50,000 for injury to feelings.
The Employment Appeal Tribunal held this was plainly excessive, having regard to authorities such as Tchoula v ICTS and Armitage v Prison Service. It halved the award, substituting a figure of £25,000 for injury to feelings.
The Court of Appeal agreed that £50,000 was plainly too high. Mummery LJ, giving the leading judgment, stating that:
"45. This is the first time for many years that the Court of Appeal has had the opportunity to consider the appropriate level of compensation for injury to feelings in discrimination cases..."
Mummery LJ went on to point out that the total award to Ms Vento of £74,000 (which included the award for aggravated damages and personal injury general damages):
"61. ...is in excess of the JSB Guidelines for the award of general damages for moderate brain damage, involving epilepsy, for severe post-traumatic stress disorder having permanent effects...and for total deafness and loss of speech. No reasonable person would think that that excess was a sensible result. The patent extravagance of the global sum is unjustifiable as an award of compensation."
He set out three bands of damages for injury to feelings (at paragraph 65):
"i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment...This case falls within that band...
"ii. The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.
"iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings."
The Court of Appeal accordingly substituted an award for injury to feelings of £18,000.
Aggravated Damages
The employment tribunal thought the police force's conduct to be high-handed, warranting an award of aggravated damages. Reasoning included that no apology had been made by the officers concerned, that the police force had unreasonable condemned Ms Vento as dishonest, that the Deputy Chief Constable attended the tribunal to apologise, but when questioned it transpired he had not read the tribunal's decision and did not know what he was apologising for.
The employment tribunal awarded £15,000, on top of the £50,000 for injury to feelings, as aggravated damages.
The Employment Appeal Tribunal thought this was too high, and substituted an award of £7,000.
The Court of Appeal again had regard to the totality of the award compared with damages in personal injury cases. It reduced the award yet further, to £5,000
General Damages for Personal Injury
Ms Vento developed clinical depression and an adjustment disorder, which lasted for three years. Basing its decision on the JSB Guidelines, the employment tribunal awarded £9,000. The EAT held this a reasonable assessment and did not interfere. It did not form part of the appeal to the Court of Appeal, and therefore stands.
Damages for Future Loss of Earnings
The employment tribunal awarded Ms Vento £165,829 for future loss of earnings, on the basis that she was now only able to work in a clerical capacity, whereas if she had not been driven out the police force there was a 75% chance she would have remained there until retirement.
The EAT overturned this. It stated that the employment tribunal had failed to give sufficient regard to statistics showing that only 9% of female police constables remain in the police force for 18 or more years.
The Court of Appeal reinstated the employment tribunal's award. It held that the employment tribunal had taken that statistic into account, but rejected it on various grounds (including that the statistics were out of date, relating to a period before the police force introduced family friendly policies, and also that Ms Vento was incapable of having more children and therefore she was different from other female police officers who might give up their careers to have children). This section of the judgement is really a decision on the facts and does not lay down any principle of law.
The Court of Appeal has handed down its decision in Vento v Chief Constable of West Yorkshire Police (CA, 20th December 2002).
This is likely to become the lead case on the assessment of damages in discrimination cases.
Facts
Ms Vento always wanted to be a police officer. She was initially prohibited from joining the force due to the height requirement. When this requirement was relaxed in 1995, she joined the force as a probationary constable, aged 28. At that time, she was married with three children.
After about two years, a series of incidents occurred which led to a number of criticisms being made of her, eventually leading to her dismissal on grounds of lack of honesty and lack of performance. The employment tribunal found this was less favourable treatment which would not have occurred if Ms Vento were a man, and found in her favour on liability for sex discrimination.
Injury to Feelings
The employment tribunal noted she had been put through "four traumatic years" of bullying, leading to clinical depression. She then had the "shock and disappointment" of dismissal, a total of 22 days in the tribunal "in which her private life was subject to minute scrutiny", the uncertainty of an appeal on liability and the loss of "a satisfying and congenial career". They awarded £50,000 for injury to feelings.
The Employment Appeal Tribunal held this was plainly excessive, having regard to authorities such as Tchoula v ICTS and Armitage v Prison Service. It halved the award, substituting a figure of £25,000 for injury to feelings.
The Court of Appeal agreed that £50,000 was plainly too high. Mummery LJ, giving the leading judgment, stating that:
"45. This is the first time for many years that the Court of Appeal has had the opportunity to consider the appropriate level of compensation for injury to feelings in discrimination cases..."
Mummery LJ went on to point out that the total award to Ms Vento of £74,000 (which included the award for aggravated damages and personal injury general damages):
"61. ...is in excess of the JSB Guidelines for the award of general damages for moderate brain damage, involving epilepsy, for severe post-traumatic stress disorder having permanent effects...and for total deafness and loss of speech. No reasonable person would think that that excess was a sensible result. The patent extravagance of the global sum is unjustifiable as an award of compensation."
He set out three bands of damages for injury to feelings (at paragraph 65):
"i. The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment...This case falls within that band...
"ii. The middle band of between £5,000 and £15,000 should be used for serious cases which do not merit an award in the highest band.
"iii. Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings."
The Court of Appeal accordingly substituted an award for injury to feelings of £18,000.
Aggravated Damages
The employment tribunal thought the police force's conduct to be high-handed, warranting an award of aggravated damages. Reasoning included that no apology had been made by the officers concerned, that the police force had unreasonable condemned Ms Vento as dishonest, that the Deputy Chief Constable attended the tribunal to apologise, but when questioned it transpired he had not read the tribunal's decision and did not know what he was apologising for.
The employment tribunal awarded £15,000, on top of the £50,000 for injury to feelings, as aggravated damages.
The Employment Appeal Tribunal thought this was too high, and substituted an award of £7,000.
The Court of Appeal again had regard to the totality of the award compared with damages in personal injury cases. It reduced the award yet further, to £5,000
General Damages for Personal Injury
Ms Vento developed clinical depression and an adjustment disorder, which lasted for three years. Basing its decision on the JSB Guidelines, the employment tribunal awarded £9,000. The EAT held this a reasonable assessment and did not interfere. It did not form part of the appeal to the Court of Appeal, and therefore stands.
Damages for Future Loss of Earnings
The employment tribunal awarded Ms Vento £165,829 for future loss of earnings, on the basis that she was now only able to work in a clerical capacity, whereas if she had not been driven out the police force there was a 75% chance she would have remained there until retirement.
The EAT overturned this. It stated that the employment tribunal had failed to give sufficient regard to statistics showing that only 9% of female police constables remain in the police force for 18 or more years.
The Court of Appeal reinstated the employment tribunal's award. It held that the employment tribunal had taken that statistic into account, but rejected it on various grounds (including that the statistics were out of date, relating to a period before the police force introduced family friendly policies, and also that Ms Vento was incapable of having more children and therefore she was different from other female police officers who might give up their careers to have children). This section of the judgement is really a decision on the facts and does not lay down any principle of law.
Friday, 20 December 2002
Disclosure Orders
The EAT, in Ken Read v Dawson & Ette (Burton P., 11/11/02), has made some interesting observations on a tribunal's interlocutory powers when considering applications for discovery and inspection.
The principles to be drawn from Burton P.'s decision include:
(a) an order (or refusal of an order) under regulation 4(5)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, namely requiring the attendance of any person to give evidence or produce documents, is not a 'decision' of a tribunal within the meaning of the rules. A tribunal therefore has no jurisdiction to review the order (or refusal of the order);
(b) nor should such an application be renewed, if it has earlier been refused, unless fresh circumstances to exist. A party who unsuccessfully seeks such an order is not entitled to a second bite at the cherry without good reason;
(c) when deciding to order disclosure of particular documents under regulation 4(5)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, tribunals should have regard to the overriding objecting. This is not to say that the Civil Procedure Rules are deemed to be incorporated into the tribunal proceedings, notwithstanding the express reference to rule 31 of the Civil Procedure Rules 1998 in regulation 4(5)(b); there is no requirement in a tribunal for an application for discovery to be supported by formal evidence or a statement of truth.
The principles to be drawn from Burton P.'s decision include:
(a) an order (or refusal of an order) under regulation 4(5)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, namely requiring the attendance of any person to give evidence or produce documents, is not a 'decision' of a tribunal within the meaning of the rules. A tribunal therefore has no jurisdiction to review the order (or refusal of the order);
(b) nor should such an application be renewed, if it has earlier been refused, unless fresh circumstances to exist. A party who unsuccessfully seeks such an order is not entitled to a second bite at the cherry without good reason;
(c) when deciding to order disclosure of particular documents under regulation 4(5)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, tribunals should have regard to the overriding objecting. This is not to say that the Civil Procedure Rules are deemed to be incorporated into the tribunal proceedings, notwithstanding the express reference to rule 31 of the Civil Procedure Rules 1998 in regulation 4(5)(b); there is no requirement in a tribunal for an application for discovery to be supported by formal evidence or a statement of truth.
Wednesday, 18 December 2002
Extension of Young Worker Protection
The government has today announced regulations to limit working hours of young workers, to come into force on 6th April 2003.
The new laws apply to workers between school-leaving age and 18, and limit working time to:
• 40 hours per week;
• 8 hours per day; and,
• night working prohibited between 10pm - 6am or 11pm - 7am.
These regulations are being introduced following the government's consultation over the summer (see bulletin dated 14th June 2002).
A further amendment is being made to the Working Time Regulations, so that all overtime (not just guaranteed overtime) is included in the calculation of average nighttime working limits. This affects all workers, not just those under 18,
The new laws apply to workers between school-leaving age and 18, and limit working time to:
• 40 hours per week;
• 8 hours per day; and,
• night working prohibited between 10pm - 6am or 11pm - 7am.
These regulations are being introduced following the government's consultation over the summer (see bulletin dated 14th June 2002).
A further amendment is being made to the Working Time Regulations, so that all overtime (not just guaranteed overtime) is included in the calculation of average nighttime working limits. This affects all workers, not just those under 18,
DTI Guide to TUPE
The DTI has, this evening, published a summary guide to TUPE. It deals with current law, not the proposals we are all awaiting.
Tuesday, 17 December 2002
Continuity of Employment
The Court of Appeal has overturned the EAT's decision in Curr v Marks & Spencers plc (see bulletin dated 9th April 2002 for the EAT decision).
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
The Court of Appeal has overturned that decision, holding (reluctantly) that continuity of employment was broken during the four year Child Break gap. Because the M&S Child Break scheme involved a resignation from work (albeit with a guarantee of re-employment at the end of four years), there was no way in which Ms Curr could be regarded as "continuing in the employment of her employer". The very fact she resigned showed she was not continuing in employment. The position might have been different if there had been an agreement or custom that she remained regarded as employed for the purpose of, for example, pension arrangements - but this was not the case. Therefore she lost the benefit of 17 of her 25 years' service for the purpose of calculating her redundancy payment.
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
The Court of Appeal has overturned that decision, holding (reluctantly) that continuity of employment was broken during the four year Child Break gap. Because the M&S Child Break scheme involved a resignation from work (albeit with a guarantee of re-employment at the end of four years), there was no way in which Ms Curr could be regarded as "continuing in the employment of her employer". The very fact she resigned showed she was not continuing in employment. The position might have been different if there had been an agreement or custom that she remained regarded as employed for the purpose of, for example, pension arrangements - but this was not the case. Therefore she lost the benefit of 17 of her 25 years' service for the purpose of calculating her redundancy payment.
Wednesday, 11 December 2002
New EAT Practice Direction
The new EAT Practice Direction has now been published. It came into force on Monday (9th December).
Some practical points to note:
• the Notice of Appeal must state the order the Appellant will ask the EAT to make (as well as the grounds of appeal);
• it is now the responsibility of the parties, and ultimately the Appellant, to prepare the appeal bundles (this was previously done by EAT staff). Practice Direction 6 sets out the required contents of the bundle. For preliminary hearings, four copies of the bundle must be lodged at least two weeks before the hearing. For full hearings, four copies of the bundle must be lodged at least seven weeks before the hearing.
• cases will be considered on paper to sift them into one of four categories:
1. rule 3(7) cases - i.e. where the EAT lacks jurisdiction and the appeal is rejected summarily;
2. cases requiring a preliminary hearing
3. cases that can go straight to a full hearing; and,
4. cases that go straight to a full hearing, but are fast-tracked. This will normally include appeals against interlocutory decisions, appeals where the outcome of other cases will depend on the decision or appeals involving a reference to the ECJ or a declaration of incompatibility under the Human Rights Act
• Skeleton arguments must be lodged at least 10 days (previously 7) before a preliminary hearing, or 21 days (previously 14) before a full hearing. The Appellant must include a chronology with its skeleton.
• transcripts will not be provided of decisions where reasons are given verbally at the hearing
The Practice Direction is set out below.
Liversidge - House of Lords refuses Appeal
The House of Lords has refused permission to appeal in Chief Constable of Bedfordshire v Liversidge [2002] IRLR 651.
The law is therefore settled. Under the Sex Discrimination Act 1975 and the Race Relations Act 1976, the Chief Constable of a police force is not liable for sex or race harassment upon a police officer by other officers in his command. (note: Liversidge dealt with the RRA, but the position was confirmed as identical for sex discrimination in Chief Constable of Cumbria v McGlennon (15/7/02).
The position with respect to race has been amended with respect to discrimination occurring after April 2001 (in which case, the chief constable is now liable) - but it remains the case that a female police officer cannot claim sex discrimination arising out of harassment by one of her colleagues.
Christmas Gift from the Croydon Tribunal
The regional chairman in Croydon has directed that in any cases where an IT3 is due to be filed between 21st December 2002 and 4th January 2003 (inclusive), time is extended to 14th January 2003.
This does not apply to Originating Applications.
Whilst I have not seen a copy of the direction, I have confirmed it with the tribunal staff in Croydon.
Thursday, 5 December 2002
Income Tax (Earnings and Pensions) Bill
The Income Tax (Earnings and Pensions) Bill was introduced in the House of Commons today. Its purpose, in the explanatory notes, is stated to be "to rewrite tax legislation relating to income from employment, pensions and social security so as to make it clearer and easier to use."
The "clearer and easier" Bill has 725 clauses and eight Schedules. I have no intention of reading or summarising it! If anybody wants to produce a summary, I would be happy to distribute it.
The "clearer and easier" Bill has 725 clauses and eight Schedules. I have no intention of reading or summarising it! If anybody wants to produce a summary, I would be happy to distribute it.
Wednesday, 4 December 2002
Annual Increase to Tribunal Awards
Hot off the press, the annual increase to the limits on tribunal awards have been published. They take effect as of the 1st February 2003 (for unfair dismissal claims, this is for all claims where the EDT is on or after 1st February 2003 rather than the date of the tribunal hearing).
The main increases are:
Current From 1st Feb 2003
Maximum amount of "a week's pay" (for the purpose of
calculating, inter alia, the basic award or
redundancy payments) £250 £260
Maximum compensatory award £52,600 £53,500
Minimum basic award in prescribed situations
(eg trade union related dismissal) £3,400 £3,500
The main increases are:
Current From 1st Feb 2003
Maximum amount of "a week's pay" (for the purpose of
calculating, inter alia, the basic award or
redundancy payments) £250 £260
Maximum compensatory award £52,600 £53,500
Minimum basic award in prescribed situations
(eg trade union related dismissal) £3,400 £3,500
Thursday, 28 November 2002
New EAT Decision
This decision has been placed on the EAT website in the last 24 hours.
Harlow v General HealthCare Group plc
(HHJ Peter Clark, 4/10/02)
The employer failed to respond to a formal grievance, on the grounds the employee was off sick and his wife had indicated that further communications from the employer were causing further stress. The employee argued this was a fundamental breach of contract, as had been found in Goold (Pearmark) Ltd v McConnel, entitling him to resign and claim constructive dismissal. The EAT upheld the employment tribunal's decision to reject this argument, stating that it was not unreasonable for an employer to wait until an employee returns to work from stress-related absence before dealing with a grievance.
Harlow v General HealthCare Group plc
(HHJ Peter Clark, 4/10/02)
The employer failed to respond to a formal grievance, on the grounds the employee was off sick and his wife had indicated that further communications from the employer were causing further stress. The employee argued this was a fundamental breach of contract, as had been found in Goold (Pearmark) Ltd v McConnel, entitling him to resign and claim constructive dismissal. The EAT upheld the employment tribunal's decision to reject this argument, stating that it was not unreasonable for an employer to wait until an employee returns to work from stress-related absence before dealing with a grievance.
Monday, 25 November 2002
Flexible Working Regulations
The government has published the first draft of the Flexible Working (Procedural Requirements) Regulations 2002, made under the Employment Act 2002. They are intended to come into force on 6th April 2003.
As readers will know, the Employment Act 2002 gives employees with children under six a right to request flexible working. The employer is under no duty to accede - but must consider the request, hold a meeting with the employee if it intends to refuse, and put its reasons for refusal in writing.
The Regulations 'flesh out' the statutory framework. They provide:
• when an employer agrees to flexible working (known as a 'contract variation'), it must provide a written note of the contract variation agreed to and the date on which it is due to take effect;
• if the employer does not intend to accede to the contract variation, it must hold the meeting with the employee within 28 days of receiving the request;
• when a meeting is held, the result (and, if appropriate, reasons for refusal) must be given in writing within 14 days of the meeting;
• an employee has a right of appeal from an employer's refusal. The Regulations set out the procedure for appealing;
• the employee has the right to be accompanied at any meeting. Breach of this provision results in a compensation payment of up to two weeks' pay (limited to, currently, £250pw).
The Regulations can be seen at http://www.dti.gov.uk/er/flexdraftregs.pdf (Adobe Acrobat required).
As readers will know, the Employment Act 2002 gives employees with children under six a right to request flexible working. The employer is under no duty to accede - but must consider the request, hold a meeting with the employee if it intends to refuse, and put its reasons for refusal in writing.
The Regulations 'flesh out' the statutory framework. They provide:
• when an employer agrees to flexible working (known as a 'contract variation'), it must provide a written note of the contract variation agreed to and the date on which it is due to take effect;
• if the employer does not intend to accede to the contract variation, it must hold the meeting with the employee within 28 days of receiving the request;
• when a meeting is held, the result (and, if appropriate, reasons for refusal) must be given in writing within 14 days of the meeting;
• an employee has a right of appeal from an employer's refusal. The Regulations set out the procedure for appealing;
• the employee has the right to be accompanied at any meeting. Breach of this provision results in a compensation payment of up to two weeks' pay (limited to, currently, £250pw).
The Regulations can be seen at http://www.dti.gov.uk/er/flexdraftregs.pdf (Adobe Acrobat required).
Minimum Wage
The government has just introduced the National Minimum Wage (Enforcement Notices) Bill in the House of Lords.
It is designed to correct the anomaly, thrown up last year in the EAT's decision in Inland Revenue v Bebb Travel plc, that the Inland Revenue cannot issue minimum wage enforcement notices in respect of former (as contrasted with current) employees of a defaulting employer.
It will have retrospective effect, i.e. it can be used in respect of employees who left the employer's service before the Bill comes into force.
For a copy of the (very short) Bill, see http://www.publications.parliament.uk/pa/ld200203/ldbills/008/2003008.htm. For the DTI's press release, see http://213.38.88.195/coi/coipress.nsf/4eb388ccc4bff3e880256bf4003360fb/759f630d5e3b4ff980256c79005bcf14?OpenDocument
It is designed to correct the anomaly, thrown up last year in the EAT's decision in Inland Revenue v Bebb Travel plc, that the Inland Revenue cannot issue minimum wage enforcement notices in respect of former (as contrasted with current) employees of a defaulting employer.
It will have retrospective effect, i.e. it can be used in respect of employees who left the employer's service before the Bill comes into force.
For a copy of the (very short) Bill, see http://www.publications.parliament.uk/pa/ld200203/ldbills/008/2003008.htm. For the DTI's press release, see http://213.38.88.195/coi/coipress.nsf/4eb388ccc4bff3e880256bf4003360fb/759f630d5e3b4ff980256c79005bcf14?OpenDocument
Flexible Working Regulations
The government has published the first draft of the Flexible Working (Procedural Requirements) Regulations 2002, made under the Employment Act 2002. They are intended to come into force on 6th April 2003.
As readers will know, the Employment Act 2002 gives employees with children under six a right to request flexible working. The employer is under no duty to accede - but must consider the request, hold a meeting with the employee if it intends to refuse, and put its reasons for refusal in writing.
The Regulations 'flesh out' the statutory framework. They provide:
• when an employer agrees to flexible working (known as a 'contract variation'), it must provide a written note of the contract variation agreed to and the date on which it is due to take effect;
• if the employer does not intend to accede to the contract variation, it must hold the meeting with the employee within 28 days of receiving the request;
• when a meeting is held, the result (and, if appropriate, reasons for refusal) must be given in writing within 14 days of the meeting;
• an employee has a right of appeal from an employer's refusal. The Regulations set out the procedure for appealing;
• the employee has the right to be accompanied at any meeting. Breach of this provision results in a compensation payment of up to two weeks' pay (limited to, currently, £250pw).
The Regulations can be seen at http://www.dti.gov.uk/er/flexdraftregs.pdf (Adobe Acrobat required).
As readers will know, the Employment Act 2002 gives employees with children under six a right to request flexible working. The employer is under no duty to accede - but must consider the request, hold a meeting with the employee if it intends to refuse, and put its reasons for refusal in writing.
The Regulations 'flesh out' the statutory framework. They provide:
• when an employer agrees to flexible working (known as a 'contract variation'), it must provide a written note of the contract variation agreed to and the date on which it is due to take effect;
• if the employer does not intend to accede to the contract variation, it must hold the meeting with the employee within 28 days of receiving the request;
• when a meeting is held, the result (and, if appropriate, reasons for refusal) must be given in writing within 14 days of the meeting;
• an employee has a right of appeal from an employer's refusal. The Regulations set out the procedure for appealing;
• the employee has the right to be accompanied at any meeting. Breach of this provision results in a compensation payment of up to two weeks' pay (limited to, currently, £250pw).
The Regulations can be seen at http://www.dti.gov.uk/er/flexdraftregs.pdf (Adobe Acrobat required).
Friday, 15 November 2002
Tribunal Reform: Government Approval
The government has approved the recommendations of the Employment Tribunal Taskforce (chaired by Janet Gaymer), which reported on 29th July 2002.
ACAS and the Employment Tribunal Service will now undertake a study on how best to implement the proposals.
For a summary of the proposals, see my bulletin of 29/7/02 (reproduced below).
Tuesday, 29 October 2002
Employment Act 2002
1. Anticipated Commencement Dates
The DTI has published a list of anticipated commencement dates for the various provisions of the Employment Act 2002.
2. Government Response following consultation on simplifying maternity/paternity rules
The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paterity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for maternity to leave to remain at 21 days (the government had initially suggested increasing it to 28 days);
The DTI has published a list of anticipated commencement dates for the various provisions of the Employment Act 2002.
2. Government Response following consultation on simplifying maternity/paternity rules
The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paterity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for maternity to leave to remain at 21 days (the government had initially suggested increasing it to 28 days);
Employment Act 2002
Correction to previous bulletin
The bulletin sent out half an hour ago stated:
The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paternity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for maternity leave to remain at 21 days (the government had initially suggested increasing it to 28 days).
In fact, it should have stated:
The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paternity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for parental leave to remain at 21 days (the government had initially suggested increasing it to 28 days).
Apologies for the error!
The bulletin sent out half an hour ago stated:
The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paternity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for maternity leave to remain at 21 days (the government had initially suggested increasing it to 28 days).
In fact, it should have stated:
The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paternity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for parental leave to remain at 21 days (the government had initially suggested increasing it to 28 days).
Apologies for the error!
Monday, 28 October 2002
Online Completion of IT1s and IT3s
***PLEASE NOTE*** Following feedback, I am now putting the phrase '[Employment Law List]' at the end (rather than the beginning) of these bulletins. Message rules to divert the Emails should still work, but it will allow the subject to be seen more easily.
The DTI has placed IT1 and IT3 forms on the internet for online completion. Probably useful for litigants in person (question: will it encourage a greater number of frivolous claims from people surfing the web?), but we lawyers love filing pieces of paper so much we will probably continue to produce our own and post them.
The DTI has placed IT1 and IT3 forms on the internet for online completion. Probably useful for litigants in person (question: will it encourage a greater number of frivolous claims from people surfing the web?), but we lawyers love filing pieces of paper so much we will probably continue to produce our own and post them.
Wednesday, 23 October 2002
Draft Discrimination Regulations Published
[A job advertisement (Chester region) appears at the end of this bulletin]
The government has this morning issued a consultation document containing the draft Regulations for the anti-discrimination legislation that must be implemented by next year, under the Equal Treatment Framework Directive.
The draft Regulations cover:
• religion (and similar philosophical beliefs);
• sexual orientation;
• disability; and,
• equal pay
The religion and sexual orientation proposals, which will come into force in December 2003, maintain existing concepts of direct and indirect discrimination but (just to keep us on our toes) make use of slightly different language when defining indirect discrimination. There are particular definitions of (and prohibitions upon) harassment.
The disability Regulations, which are expected to come into force on 1st October 2004, operate by amending the Disability Discrimination Act 1995. The amendments, which are extensive, include a clearer definition of discrimination on grounds of disability, introducing a 'defence' to the duty to make reasonable adjustments if the employer does not know (and could not be expected to know) the employee is disabled, abolishing the small business exemption, and extending the DDA to partnerships and barristers.
Responses are sought by 24th January 2003.
The government has this morning issued a consultation document containing the draft Regulations for the anti-discrimination legislation that must be implemented by next year, under the Equal Treatment Framework Directive.
The draft Regulations cover:
• religion (and similar philosophical beliefs);
• sexual orientation;
• disability; and,
• equal pay
The religion and sexual orientation proposals, which will come into force in December 2003, maintain existing concepts of direct and indirect discrimination but (just to keep us on our toes) make use of slightly different language when defining indirect discrimination. There are particular definitions of (and prohibitions upon) harassment.
The disability Regulations, which are expected to come into force on 1st October 2004, operate by amending the Disability Discrimination Act 1995. The amendments, which are extensive, include a clearer definition of discrimination on grounds of disability, introducing a 'defence' to the duty to make reasonable adjustments if the employer does not know (and could not be expected to know) the employee is disabled, abolishing the small business exemption, and extending the DDA to partnerships and barristers.
Responses are sought by 24th January 2003.
Monday, 21 October 2002
DTI Unfair Dismissal Guide
[A job advertisement (Glasgow region) appears at the end of this bulletin]
***PLEASE NOTE*** I have been asked to stop using the identifying phrase '[Employment Law List]' at the beginning of the subject line for these bulletins, as it stops some people seeing the full subject in their Email boxes. This may mean that some people lose the ability to use Mail Rules to divert the bulletins automatically into an Email folder. If it bothers enough people into Emailing me back, I'll reinstate the '[Employment Law List]' prefix.
Since the DTI guides to the law in my bulletin of 16th October proved popular (1,586 of you clicked through to the links), I will keep notify people whenever new ones are published.
Happily, nobody has to wait very long! Late on Friday afternoon, the DTI published its updated guide to unfair dismissal on its website.
***PLEASE NOTE*** I have been asked to stop using the identifying phrase '[Employment Law List]' at the beginning of the subject line for these bulletins, as it stops some people seeing the full subject in their Email boxes. This may mean that some people lose the ability to use Mail Rules to divert the bulletins automatically into an Email folder. If it bothers enough people into Emailing me back, I'll reinstate the '[Employment Law List]' prefix.
Since the DTI guides to the law in my bulletin of 16th October proved popular (1,586 of you clicked through to the links), I will keep notify people whenever new ones are published.
Happily, nobody has to wait very long! Late on Friday afternoon, the DTI published its updated guide to unfair dismissal on its website.
Wednesday, 16 October 2002
Consultation on Commencement Dates
The government has issued a consultation document in response to the recommendation of the Better Regulation Taskforce that commencement dates for employment legislation should be harmonised so as to have just one or two 'implementation dates' each year (see bulletins dated 6/8/02 and 16/5/02). Presumably the DTI misses the irony of its issuing a consultation document to discuss reducing red tape!
Also, the DTI has published two more guides to the law (and these are quite excellent): one dealing with whistleblowing, the other with rights to notice and reasons for dismissal.
Also, the DTI has published two more guides to the law (and these are quite excellent): one dealing with whistleblowing, the other with rights to notice and reasons for dismissal.
Consultation on Commencement Dates
The government has issued a consultation document in response to the recommendation of the Better Regulation Taskforce that commencement dates for employment legislation should be harmonised so as to have just one or two 'implementation dates' each year (see bulletins dated 6/8/02 and 16/5/02). Presumably the DTI misses the irony of its issuing a consultation document to discuss reducing red tape!
Also, the DTI has published two more guides to the law (and these are quite excellent): one dealing with whistleblowing, the other with rights to notice and reasons for dismissal.
Also, the DTI has published two more guides to the law (and these are quite excellent): one dealing with whistleblowing, the other with rights to notice and reasons for dismissal.
Tuesday, 8 October 2002
New EAT Decisions
These decisions have been placed on the EAT website in the last 24 hours.
Bournemouth Borough Council v Meredith
(Maurice Kay J., 24/7/02)
The employee, a teacher, was dismissed for gross misconduct when he took a disruptive 12-year old girl by the wrist and dragged her outside the classroom, in circumstances where she was being disruptive during an exam and had refused several instructions to leave the room.
The EAT upheld the decision that the dismissal was unfair. Helpfully, the EAT gave clear guidance on the procedures a school should follow if it wanted to impose a 'no physical contact' rule on its teachers. The Court of Appeal has refused Bournemouth's application for leave to appeal.
Johnson v Scottish & Newcastle
(HHJ Wilkie, 26/2/02)
Mrs Johnson was assistant manager of a pub. She was dismissed for making excessive phone calls. Because of an inadequate procedure, the tribunal found the dismissal was unfair. The compensatory award was, on the face of it, £4,620. However, the tribunal reduced this by 95% (on the basis that there was a 95% chance a fair procedure would have reached the same result) - yielding £231. It then further reduced this by 90% for contributory fault, and awarded a final compensatory award of £23.18 .
The EAT held it was an error of law to impose the two reductions cumulatively without having regard to their overall effect. It breached the overriding 'just and equitable' test. Accordingly the assessment of award was remitted to a fresh tribunal.
Bournemouth Borough Council v Meredith
(Maurice Kay J., 24/7/02)
The employee, a teacher, was dismissed for gross misconduct when he took a disruptive 12-year old girl by the wrist and dragged her outside the classroom, in circumstances where she was being disruptive during an exam and had refused several instructions to leave the room.
The EAT upheld the decision that the dismissal was unfair. Helpfully, the EAT gave clear guidance on the procedures a school should follow if it wanted to impose a 'no physical contact' rule on its teachers. The Court of Appeal has refused Bournemouth's application for leave to appeal.
Johnson v Scottish & Newcastle
(HHJ Wilkie, 26/2/02)
Mrs Johnson was assistant manager of a pub. She was dismissed for making excessive phone calls. Because of an inadequate procedure, the tribunal found the dismissal was unfair. The compensatory award was, on the face of it, £4,620. However, the tribunal reduced this by 95% (on the basis that there was a 95% chance a fair procedure would have reached the same result) - yielding £231. It then further reduced this by 90% for contributory fault, and awarded a final compensatory award of £23.18 .
The EAT held it was an error of law to impose the two reductions cumulatively without having regard to their overall effect. It breached the overriding 'just and equitable' test. Accordingly the assessment of award was remitted to a fresh tribunal.
Friday, 4 October 2002
New EAT Judges
The Lord Chancellor's department has, today, appointed HHJ Jeremy McMullen to sit as a full-time judge in the EAT with effect from 7th October 2002.
This follows on from last month's announcement appointing six QCs to sit as new part-time judges in the EAT, namely John Bowers, Timothy Brennan, Timothy Dutton, John Hand, Jan Luba and Richard Plender QC.
This follows on from last month's announcement appointing six QCs to sit as new part-time judges in the EAT, namely John Bowers, Timothy Brennan, Timothy Dutton, John Hand, Jan Luba and Richard Plender QC.
Tuesday, 1 October 2002
In force today...
Just in case anyone missed it in the newspapers, a reminder that the following come into force today:
1. Increase in national minimum wage
This increases from £4.10 to £4.20 for workers over 22, and from £3.50 to £3.60 for those between 18 and 22.
For more detail, see the bulletin of 5th March 2002.
2. Fixed Term (Prevention of Less Favourable Treatment) Regulations 2002
These provide that fixed term workers should receive, in broad terms, as good a remuneration package as permanent workers. It also converts fixed term workers to permanent workers after four years in post, unless the employer can justify retaining the worker on a fixed term basis.
For more detail, see the bulletins of 26th June 2002 and 22nd January 2002, or go to http://www.dti.gov.uk/er/fixed/
1. Increase in national minimum wage
This increases from £4.10 to £4.20 for workers over 22, and from £3.50 to £3.60 for those between 18 and 22.
For more detail, see the bulletin of 5th March 2002.
2. Fixed Term (Prevention of Less Favourable Treatment) Regulations 2002
These provide that fixed term workers should receive, in broad terms, as good a remuneration package as permanent workers. It also converts fixed term workers to permanent workers after four years in post, unless the employer can justify retaining the worker on a fixed term basis.
For more detail, see the bulletins of 26th June 2002 and 22nd January 2002, or go to http://www.dti.gov.uk/er/fixed/
Government to appeal Rutherford
According to an article in today's internet edition of Personnel Today, the government has announced it intends to appeal the Stratford tribunal's decision in Rutherford v TownCircle (see bulletin dated 23rd August, reproduced below), where the tribunal held that the upper qualifying age for unfair dismissal and redundancy was contrary to the EC Treaty of Amsterdam.
No doubt the government's appeal will focus on the tribunal's refusal to consider the reasons put forward for justifying the disparate impact of the qualifying age, which the tribunal refused to consider on the ground that the reasons amounted to no more than speculation by current civil servants, rather than evidence of fact from the civil servants in post back in the 1970s (when the upper qualifying age was introduced).
Employees over retirement age should be advised to lodge claims pending a final decision in Rutherford. If applicants wait until the result before presenting a claim, they will almost certainly find themselves time-barred.
No doubt the government's appeal will focus on the tribunal's refusal to consider the reasons put forward for justifying the disparate impact of the qualifying age, which the tribunal refused to consider on the ground that the reasons amounted to no more than speculation by current civil servants, rather than evidence of fact from the civil servants in post back in the 1970s (when the upper qualifying age was introduced).
Employees over retirement age should be advised to lodge claims pending a final decision in Rutherford. If applicants wait until the result before presenting a claim, they will almost certainly find themselves time-barred.
Thursday, 19 September 2002
New EAT Decisions
The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.
Royal National Orthopaedic Hospital Trust v Howard
(HHJ Reid, EAT 23rd August 2002)
Mrs Howard brought an unfair dismissal and sex discrimination claim against the National Orthopaedic Hospital, which had employed her for 18 years. The claims were compromised in a COT3 agreement in 1998, which compromised "these proceedings and all claims which the Applicant has or may have against the Respondent."
Two years later, in 2000, she was asked by a surgeon to assist at an operation for one day but the hospital refused to authorise a temporary appointment - she said, because of her previous sex discrimination claim. She therefore brought a claim for victimisation.
The EAT upheld the employment tribunal's decision that the compromise agreement did not prevent her from bringing the later claim of victimisation. Although it was open to parties to contract away future causes of action which had not yet arisen, an objective construction of the words used in the COT3 did not lend itself to that interpretation. Accordingly she could proceed with the victimisation claim.
Kirkton v Tetrosyl
(HHJ Reid, EAT 23rd August 2002)
No real legal principles, but an example of what does not amount to a 'disability'. Mr Kirkton suffered from mild incontinence: he wore one or two incontinence pads a day, had occasional urinary leakage and needed to go the toilet about eight times a day. The EAT upheld the tribunal's decision that this did not amount to a 'disability' within the meaning of the Disability Discrimination Act 1995. In reaching this conclusion, the EAT accepted that the tribunal had properly relied on the experience of two of the three people sitting on the tribunal who also suffered from incontinence and were in a position to judge the severity of Mr Kirkton's symptoms.
Royal National Orthopaedic Hospital Trust v Howard
(HHJ Reid, EAT 23rd August 2002)
Mrs Howard brought an unfair dismissal and sex discrimination claim against the National Orthopaedic Hospital, which had employed her for 18 years. The claims were compromised in a COT3 agreement in 1998, which compromised "these proceedings and all claims which the Applicant has or may have against the Respondent."
Two years later, in 2000, she was asked by a surgeon to assist at an operation for one day but the hospital refused to authorise a temporary appointment - she said, because of her previous sex discrimination claim. She therefore brought a claim for victimisation.
The EAT upheld the employment tribunal's decision that the compromise agreement did not prevent her from bringing the later claim of victimisation. Although it was open to parties to contract away future causes of action which had not yet arisen, an objective construction of the words used in the COT3 did not lend itself to that interpretation. Accordingly she could proceed with the victimisation claim.
Kirkton v Tetrosyl
(HHJ Reid, EAT 23rd August 2002)
No real legal principles, but an example of what does not amount to a 'disability'. Mr Kirkton suffered from mild incontinence: he wore one or two incontinence pads a day, had occasional urinary leakage and needed to go the toilet about eight times a day. The EAT upheld the tribunal's decision that this did not amount to a 'disability' within the meaning of the Disability Discrimination Act 1995. In reaching this conclusion, the EAT accepted that the tribunal had properly relied on the experience of two of the three people sitting on the tribunal who also suffered from incontinence and were in a position to judge the severity of Mr Kirkton's symptoms.
Thursday, 5 September 2002
[At the end of this bulletin is an advertisement for CLT courses]
The Court of Appeal has handed down judgment in Lawal v Northern Spirit, upholding (by a majority) the EAT's decision that it is legitimate for part-time judges in the EAT to also appear as advocates in the EAT, in front of a lay member they have previously sat with. (note: for the EAT decision, please see my bulletin of 31st January 2002)
Issue
Does a real possibility of bias exist when a part-time judge of the Employment Appeal Tribunal appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge?
Majority Decision (Mummery LJ and Phillips MR)
There is no real risk of bias at common law, and no lack of a fair trial under Art 6(1) of the European Convention on Human Rights. The lay members are educated and intelligent people, with minds of their own, and they are quite capable of distinguishing the role of a neutral presiding judge from that of a partisan advocate. To suggest a lay member cannot tell the difference is condescending and wrong.
Minority Decision (Pill LJ)
It is not appropriate that part-time judges appear as advocates in front of lay members with whom they have sat. The lay members look to the judge for guidance and there is a special degree of trust and confidence reposed in him. To allow him then to appear as an advocate is likely to diminish public confidence in the administration of justice.
The Court of Appeal has handed down judgment in Lawal v Northern Spirit, upholding (by a majority) the EAT's decision that it is legitimate for part-time judges in the EAT to also appear as advocates in the EAT, in front of a lay member they have previously sat with. (note: for the EAT decision, please see my bulletin of 31st January 2002)
Issue
Does a real possibility of bias exist when a part-time judge of the Employment Appeal Tribunal appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge?
Majority Decision (Mummery LJ and Phillips MR)
There is no real risk of bias at common law, and no lack of a fair trial under Art 6(1) of the European Convention on Human Rights. The lay members are educated and intelligent people, with minds of their own, and they are quite capable of distinguishing the role of a neutral presiding judge from that of a partisan advocate. To suggest a lay member cannot tell the difference is condescending and wrong.
Minority Decision (Pill LJ)
It is not appropriate that part-time judges appear as advocates in front of lay members with whom they have sat. The lay members look to the judge for guidance and there is a special degree of trust and confidence reposed in him. To allow him then to appear as an advocate is likely to diminish public confidence in the administration of justice.
Tuesday, 3 September 2002
Protection Code of Practice - Part 2
The long-awaited Part 2 of the Data Protection Code of Practice, dealing with record management, is now available.
The Code sets out the procedures (and penalties) for storing personal data about employees and job applicants. It also explains the processes under which employees (and unsuccessful job applicants) can insist on obtaining copies of those records (for a £10 fee). The bulk of the Code deals with data collection and storage procedures.
Slightly worryingly, the Code sets out what it regards as 'best practice', without always distinguishing that best practice from legal obligation. It may therefore mislead small employers who lack specialist HR knowledge (if any actually read it!). Having said that, it is an enormously impressive and thorough document, and one which (if followed) is going to ensure that employers follow the spirit as well as the letter of the law.
For information about Part 1 of the Code (recruitment and selection), see the bulletin of 14th March 2002. Part 3 (monitoring at work) is undergoing consultation, and Part 4 (medical information) is not yet available.
The Code sets out the procedures (and penalties) for storing personal data about employees and job applicants. It also explains the processes under which employees (and unsuccessful job applicants) can insist on obtaining copies of those records (for a £10 fee). The bulk of the Code deals with data collection and storage procedures.
Slightly worryingly, the Code sets out what it regards as 'best practice', without always distinguishing that best practice from legal obligation. It may therefore mislead small employers who lack specialist HR knowledge (if any actually read it!). Having said that, it is an enormously impressive and thorough document, and one which (if followed) is going to ensure that employers follow the spirit as well as the letter of the law.
For information about Part 1 of the Code (recruitment and selection), see the bulletin of 14th March 2002. Part 3 (monitoring at work) is undergoing consultation, and Part 4 (medical information) is not yet available.
Friday, 23 August 2002
Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest)
Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.
Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.
The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.
Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.
Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.
Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.
Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.
The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.
Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.
Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.
Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.
Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest)
Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.
Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.
The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.
Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.
Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.
Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.
Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.
The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.
Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.
Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.
Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.
Tuesday, 6 August 2002
Better Regulation TaskForce Report
CONTENTS:
1. Better Regulation TaskForce Reports
2. What are your burning questions?
1. Better Regulation TaskForce Report
The government has announced it intends to implement a number of recommendations of the Better Regulation TaskForce Report (see bulletin 16/5/02). Note that this is completely separate from Janet Gaymer's Employment TaskForce Report, which was published last week.
The government intends to:
• pilot free or subsidised employment law advice visits to
employers of less than 50 employees;
• run a number of pilot schemes giving a shared HR resource to
small firms;
• most significantly, consult on how harmonising start dates for domestic regulations
could best work in practice
The third of those will, if implemented, be an immense relief to employers and lawyers alike, who will only have to grapple with one or two commencement dates a year.
2. What are your Burning Questions?
I am putting together a course for Central Law Training entitled:
It would be of great help if people could Email me with one or two (or more!) questions that they would find of interest at such a seminar. If you're willing to give me any ideas, please use this Email.
1. Better Regulation TaskForce Reports
2. What are your burning questions?
1. Better Regulation TaskForce Report
The government has announced it intends to implement a number of recommendations of the Better Regulation TaskForce Report (see bulletin 16/5/02). Note that this is completely separate from Janet Gaymer's Employment TaskForce Report, which was published last week.
The government intends to:
• pilot free or subsidised employment law advice visits to
employers of less than 50 employees;
• run a number of pilot schemes giving a shared HR resource to
small firms;
• most significantly, consult on how harmonising start dates for domestic regulations
could best work in practice
The third of those will, if implemented, be an immense relief to employers and lawyers alike, who will only have to grapple with one or two commencement dates a year.
2. What are your Burning Questions?
I am putting together a course for Central Law Training entitled:
'Unfair Dismissal: Your Top 10 Questions Answered'
It would be of great help if people could Email me with one or two (or more!) questions that they would find of interest at such a seminar. If you're willing to give me any ideas, please use this Email.
Aggravated Damages: New EAT Decision
The EAT has held that employees can recover aggravated damages in discrimination claims arising from the unreasonable conduct of the employer after dismissal - in this case, the unreasonable conduct of the employer in the way it conducted its defence in the ET claim.
The case is Zaiwalla & Co v Hodson (EAT, Maurice Kay J., 24/7/02)
Facts
Ms Hodson was a mature law graduate. She obtained a training contract with Zaiwalla & Co. After several months of ongoing sex discrimination, she was dismissed. The tribunal found the reason for her dismissal was the sex discrimination, and awarded her £43,149 compensation (including £7,500 aggravated damages)
The Issue(s)
A number of issues were raised as to the liability decision, all of which were rejected in fairly robust terms.
The important issue on quantum was whether a tribunal was entitled to make an award of aggravated damages in respect of the way that Zaiwalla & Co (who represented themselves) conducted their defence in the employment tribunal claim. Although this issue had been raised previously in Chief Constable of West Yorkshire Police v Vento, the EAT had not found it necessary to determine the point.
The Result
The EAT held that it was proper to award aggravated damages by reference to conduct in the defence of proceedings. Indeed, it was desirable to do so on policy grounds, because otherwise it might result in satellite litigation for victimisation (although query whether this analysis is correct, given the House of Lord's decision in Khan, which was not considered by the EAT).
The EAT rejected the argument that there are better ways of dealing with the problem of unreasonable litigants - for example, by an order for costs to reflect unreasonableness.
However, the EAT made it clear that this was an almost unique case on the facts. It held:
"28. We are sensitive to the possibility that overenthusiastic litigants and litigants in employment tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. The findings of fact in the present case...were exceptional in their assessment of the litigation misconduct. We expect that cases attracting awards of aggravated damages for such behaviour will be few and far between. It saddens us that this exceptional case concerned the behaviour of a firm of solicitors."
Sunday, 4 August 2002
[Employment Law List] A Request
This is an automatic message, sent to the older members on my mailing list.
For the last year or so, I have been asking all new subscribers to complete a short form identifying themselves (basically, name and firm) when they sign up. Because you joined before I started this system, I don't know who you are.
Would you mind completing a (very) short form identifying yourself? Just click on the link at the bottom of any of my normal bulletins (not this one), and you will be taken to a web page to complete your details.
Sorry for disturbing you, but I hope you won't mind helping me out. It simply means that I have a better idea of who receives my Email bulletins. As always, I promise that I will never sell or distribute the details of anybody who is on the mailing list.
For the last year or so, I have been asking all new subscribers to complete a short form identifying themselves (basically, name and firm) when they sign up. Because you joined before I started this system, I don't know who you are.
Would you mind completing a (very) short form identifying yourself? Just click on the link at the bottom of any of my normal bulletins (not this one), and you will be taken to a web page to complete your details.
Sorry for disturbing you, but I hope you won't mind helping me out. It simply means that I have a better idea of who receives my Email bulletins. As always, I promise that I will never sell or distribute the details of anybody who is on the mailing list.
Thursday, 1 August 2002
Equality Bill - Consultation
First, a note of apology. For some reason I am looking into, about 10% of the subscribers to this bulletin suddenly stopped receiving them last month (although from my end they still appear to be on the list). If your colleagues are not getting these Emails, I am looking into it.
Second (and of more general interest!), the Cambridge Centre for Public Law has published a draft Equality Bill which went out to consultation earlier this week. The Bill is drafted by Professor Bob Hepple and Lord Lester of Herne Hill and will be introduced by Lord Lester as a Private Member's Bill later this year.
It is an all-encompassing discrimination code, covering discrimination in employment (and other fields) on grounds of sex, race, disability, religion, marital or family status, sexual orientation or gender reassignment, and age.
The Act is 74 pages long but reads like a dream (to those, like me, who dream about employment law!).
Second (and of more general interest!), the Cambridge Centre for Public Law has published a draft Equality Bill which went out to consultation earlier this week. The Bill is drafted by Professor Bob Hepple and Lord Lester of Herne Hill and will be introduced by Lord Lester as a Private Member's Bill later this year.
It is an all-encompassing discrimination code, covering discrimination in employment (and other fields) on grounds of sex, race, disability, religion, marital or family status, sexual orientation or gender reassignment, and age.
The Act is 74 pages long but reads like a dream (to those, like me, who dream about employment law!).
Monday, 29 July 2002
Employment TaskForce Report
The Employment Tribunal System Taskforce, chaired by Janet Gaymer, has today published its report on reform of the employment tribunal system. The report was provided to the DTI and the Lord Chancellor.
The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system
Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.
Both a summary, and the full report, have been published on the internet.
The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system
Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.
Both a summary, and the full report, have been published on the internet.
Thursday, 25 July 2002
New EAT Decisions
The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.
The Chief Constable of Cumbria v McGlennon (Mr Commissioner Howell QC, 15/7/02)
An important case on whether the Liversidge principle applies to sex discrimination claims.
Chief Constable of Bedfordshire v Liversidge (Court of Appeal, currently being appealed to the House of Lords) provides that the Race Relations Act 1976 does not make the chief constable of a police force liable for racial harassment upon a police officer by other officers in his command. The decision is based on the literal interpretation of the liability sections of the Race Relations Act 1976.
It has been unclear whether the same bar applies in sex discrimination claims because, although the wording of the SDA 1975 is identical, it must be interpreted in accordance with different principles, i.e. in accordance with the Equal Treatment Directive.
The EAT has now held in McGlennon that the answer is the same, and that a chief constable is not primarily liable for acts of sexual harassment by one officer against another. Nor can the Applicant rely on the direct effect of the Equal Treatment Directive.
However, the EAT goes on to say that where the discriminatory act is an administrative one, being done by a subordinate officer on the chief constable's behalf (as in this case, where the issue was a transfer from one police station to another), then the act (i.e. the decision to transfer) can properly be said to be that of the chief constable himself - and thus liability exists.
I am involved in a number of these cases and cannot comment further (for fear my opponents will print off what I say and use it against me!). This case is mandatory reading for anyone with a sex discrimination claim against the police.
The Chief Constable has been given permission to appeal to the Court of Appeal (although I understand he has not yet decided whether to pursue an appeal).
Morton v School Pictures International (HHJ Peter Clark, 17/5/02)
It is not mandatory for an issue which is raised in the IT1 to be formally determined by a tribunal, if it is not actively pursued during the course of the tribunal hearing.
The Chief Constable of Cumbria v McGlennon (Mr Commissioner Howell QC, 15/7/02)
An important case on whether the Liversidge principle applies to sex discrimination claims.
Chief Constable of Bedfordshire v Liversidge (Court of Appeal, currently being appealed to the House of Lords) provides that the Race Relations Act 1976 does not make the chief constable of a police force liable for racial harassment upon a police officer by other officers in his command. The decision is based on the literal interpretation of the liability sections of the Race Relations Act 1976.
It has been unclear whether the same bar applies in sex discrimination claims because, although the wording of the SDA 1975 is identical, it must be interpreted in accordance with different principles, i.e. in accordance with the Equal Treatment Directive.
The EAT has now held in McGlennon that the answer is the same, and that a chief constable is not primarily liable for acts of sexual harassment by one officer against another. Nor can the Applicant rely on the direct effect of the Equal Treatment Directive.
However, the EAT goes on to say that where the discriminatory act is an administrative one, being done by a subordinate officer on the chief constable's behalf (as in this case, where the issue was a transfer from one police station to another), then the act (i.e. the decision to transfer) can properly be said to be that of the chief constable himself - and thus liability exists.
I am involved in a number of these cases and cannot comment further (for fear my opponents will print off what I say and use it against me!). This case is mandatory reading for anyone with a sex discrimination claim against the police.
The Chief Constable has been given permission to appeal to the Court of Appeal (although I understand he has not yet decided whether to pursue an appeal).
Morton v School Pictures International (HHJ Peter Clark, 17/5/02)
It is not mandatory for an issue which is raised in the IT1 to be formally determined by a tribunal, if it is not actively pursued during the course of the tribunal hearing.
Wednesday, 24 July 2002
'Rolled Up' Holiday Pay Decision
Blackburn v Gridquest (CA, 23/7/02)
The Court of Appeal has given its decision in Gridquest, holding that it is not permissible to 'roll-up' holiday pay within ordinary weekly remuneration in circumstances where there was no express agreement to that effect.
Thus if an employer pays (say) £5.30ph to an employee, of which £5 is intended to represent basic wage and 30p intended to represent holiday pay, then the employer remains obliged to pay a full four weeks' annual holiday pay based upon £5.30ph. It cannot have credit for the 30p payments that have been made during the year.
The position remains unclear where employer and employee have expressly agreed that an element of the weekly wage should represent rolled-up holiday pay.
The decision is not yet available on the internet, but will soon be published at http://www.courtservice.gov.uk/judgments/judg_home.htm
The Court of Appeal has given its decision in Gridquest, holding that it is not permissible to 'roll-up' holiday pay within ordinary weekly remuneration in circumstances where there was no express agreement to that effect.
Thus if an employer pays (say) £5.30ph to an employee, of which £5 is intended to represent basic wage and 30p intended to represent holiday pay, then the employer remains obliged to pay a full four weeks' annual holiday pay based upon £5.30ph. It cannot have credit for the 30p payments that have been made during the year.
The position remains unclear where employer and employee have expressly agreed that an element of the weekly wage should represent rolled-up holiday pay.
The decision is not yet available on the internet, but will soon be published at http://www.courtservice.gov.uk/judgments/judg_home.htm
Friday, 19 July 2002
New TUPE Decision
Key Communications v Rose & others (EAT, Maurice Kay J., 5th July 2002)
An interesting TUPE decision on the meaning of "a transfer of an undertaking...may be effected by a series of two or more transactions".
Facts
An insolvent business was purchased by Key Communications from the receivers on 24th December 1998. During the negotiations, Key Communications agreed that it would sell the business on to another company, Impact, which had been unable to raise the funds sufficiently swiftly to meet the receivers' needs.
The employees of the business were not taken by Key Communications on 24th December 1998 (the date of the first sale).
The business was sold on by Key Communications to Impact on 19th April 1999.
The Employment Tribunal Decision
The employment tribunal found there had been a TUPE transfer from Key Communications to Impact on 19th April 1999. However, because the employees had not been taken on by Key Communications on 24th December 1998, they were not employed by Key Communications at the date of the transfer on 19th April 1999 - and thus did not transfer across to Impact. Accordingly Key remained liable for redundancy (and possibly unfair dismissal) payments.
The Employment Appeal Tribunal Decision
The EAT held that the ET had not properly considered the impact of TUPE reg3(4), namely that "a transfer of an undertaking...may be effected by a series of two or more transactions".
The ET had been wrong to rely on the four month gap between the transfers as meaning there was no 'series' of transactions. It had always been contemplated by Key Communications and Impact that the transaction would take effect as part of a series. There was no statutory necessity for the further transaction to take place immediately.
Accordingly the appeal was allowed.
The decision can be seen at http://www.employmentappeals.gov.uk/uploads/EAT1292001852002/index.htm
An interesting TUPE decision on the meaning of "a transfer of an undertaking...may be effected by a series of two or more transactions".
Facts
An insolvent business was purchased by Key Communications from the receivers on 24th December 1998. During the negotiations, Key Communications agreed that it would sell the business on to another company, Impact, which had been unable to raise the funds sufficiently swiftly to meet the receivers' needs.
The employees of the business were not taken by Key Communications on 24th December 1998 (the date of the first sale).
The business was sold on by Key Communications to Impact on 19th April 1999.
The Employment Tribunal Decision
The employment tribunal found there had been a TUPE transfer from Key Communications to Impact on 19th April 1999. However, because the employees had not been taken on by Key Communications on 24th December 1998, they were not employed by Key Communications at the date of the transfer on 19th April 1999 - and thus did not transfer across to Impact. Accordingly Key remained liable for redundancy (and possibly unfair dismissal) payments.
The Employment Appeal Tribunal Decision
The EAT held that the ET had not properly considered the impact of TUPE reg3(4), namely that "a transfer of an undertaking...may be effected by a series of two or more transactions".
The ET had been wrong to rely on the four month gap between the transfers as meaning there was no 'series' of transactions. It had always been contemplated by Key Communications and Impact that the transaction would take effect as part of a series. There was no statutory necessity for the further transaction to take place immediately.
Accordingly the appeal was allowed.
The decision can be seen at http://www.employmentappeals.gov.uk/uploads/EAT1292001852002/index.htm
Thursday, 11 July 2002
And They're Out...
We all knew they were coming, and on a warm Thursday afternoon the DTI has released a flood of consultation papers on proposed changes to employment legislation.
The various consultation papers cover:
• employment status in relation to employment rights
• a review of the Employment Relations Act 1999 (this has not yet been issued as a consultation paper, but the terms of reference have been published)
• fixed term workers (again!)
• flexible working
• the Information and Consultation Directive; and,
• a review of the UK labour market
Note that there whilst the upper limit for the compensatory award is up for review (as part of the Employment Relations Act 1999), there has been no consultation sought on the qualifying period for unfair dismissal. So it looks like that might be staying at one year.
The consultation papers are all available at http://www.dti.gov.uk/er/fixed/index.htm
The various consultation papers cover:
• employment status in relation to employment rights
• a review of the Employment Relations Act 1999 (this has not yet been issued as a consultation paper, but the terms of reference have been published)
• fixed term workers (again!)
• flexible working
• the Information and Consultation Directive; and,
• a review of the UK labour market
Note that there whilst the upper limit for the compensatory award is up for review (as part of the Employment Relations Act 1999), there has been no consultation sought on the qualifying period for unfair dismissal. So it looks like that might be staying at one year.
The consultation papers are all available at http://www.dti.gov.uk/er/fixed/index.htm
Wednesday, 10 July 2002
Employment Act 2002
The Employment Bill received Royal Assent yesterday, becoming the Employment Act 2002. It will come into force in April 2003.
I reproduce, below, a summary of the provisions of the Act from www.emplaw.co.uk (with permission of DiscLaw Publishing Ltd.). Free 24-hour trial passwords are available for those who wish full access to the professional area of the site - just Email info@emplaw.co.uk (please do not reply to this Email).
I reproduce, below, a summary of the provisions of the Act from www.emplaw.co.uk (with permission of DiscLaw Publishing Ltd.). Free 24-hour trial passwords are available for those who wish full access to the professional area of the site - just Email info@emplaw.co.uk (please do not reply to this Email).
Tuesday, 9 July 2002
New EAT Decisions
Kyndall Spirits v Burns (EAT 27/6/02, Lord Johnston)
There is a duty on an employer to expressly raise the issue of mitigation of loss, if it wants to rely on it. The decision in Morganite Electrical Carbon Ltd v Donne [1987] IRLR 363, which states that a tribunal must consider mitigation whether raised by the employer or not, is wrong.
- http://www.employmentappeals.gov.uk/uploads/EAT29022762002/index.htm
Skelton v Christian Salvesen (EAT 27/6/02, Lord Johnston)
The representative from the employer, who was providing instructions to the solicitor conducting the case, sat as a lay member on employment tribunals. He was (it seems) known to the panel of three who heard the case at first instance and found in favour of the employer. The employee appealed on the grounds of bias. The EAT dismissed the appeal, on the basis that:
a. a distinction must be drawn between professional and social acquaintances; with the former, there is no presumption of bias; and,
b. in any event, public policy prevents that argument succeeding because otherwise lay members of tribunals would never be able to appear in cases, whether as a representative or to give evidence.
- http://www.employmentappeals.gov.uk/uploads/EAT151022762002/index.htm
There is a duty on an employer to expressly raise the issue of mitigation of loss, if it wants to rely on it. The decision in Morganite Electrical Carbon Ltd v Donne [1987] IRLR 363, which states that a tribunal must consider mitigation whether raised by the employer or not, is wrong.
- http://www.employmentappeals.gov.uk/uploads/EAT29022762002/index.htm
Skelton v Christian Salvesen (EAT 27/6/02, Lord Johnston)
The representative from the employer, who was providing instructions to the solicitor conducting the case, sat as a lay member on employment tribunals. He was (it seems) known to the panel of three who heard the case at first instance and found in favour of the employer. The employee appealed on the grounds of bias. The EAT dismissed the appeal, on the basis that:
a. a distinction must be drawn between professional and social acquaintances; with the former, there is no presumption of bias; and,
b. in any event, public policy prevents that argument succeeding because otherwise lay members of tribunals would never be able to appear in cases, whether as a representative or to give evidence.
- http://www.employmentappeals.gov.uk/uploads/EAT151022762002/index.htm
Tuesday, 2 July 2002
Agency Workers: Consultation Document
The government has issued a consultation document on how best to implement the EC Agency Workers Directive (see bulletins of 20th March and 22nd March 2002).
It appears from the DTI commentary that the DTI intends to take advantage of the exemption providing that the equal treatment requirement need not apply to agency workers who work on a task (or series of tasks) that will last less than six weeks.
The full consultation documents is available at http://www.dti.gov.uk/er/agency/directive.htm . Responses are sought by not later than 18th October 2002.
It appears from the DTI commentary that the DTI intends to take advantage of the exemption providing that the equal treatment requirement need not apply to agency workers who work on a task (or series of tasks) that will last less than six weeks.
The full consultation documents is available at http://www.dti.gov.uk/er/agency/directive.htm . Responses are sought by not later than 18th October 2002.
Thursday, 27 June 2002
New EAT Decisions
A case on whether directors/shareholders of a company can amount to 'employees' for the purposes of the ERA 1996 (in particular, a redundancy payment from the DTI fund). The case contains a very useful analysis of the authorities and, whilst not laying down any new rules of law, is an excellent summary for anyone undertaking quick research into the point.
- http://www.employmentappeals.gov.uk/uploads/EAT386011652002/index.htm
- http://www.employmentappeals.gov.uk/uploads/EAT386011652002/index.htm
Wednesday, 26 June 2002
Fixed Term Workers Regulations
Further to my bulletin dated 22nd January 2002 (reproduced below), the government has announced it is not able to implement the Fixed Term Workers Regulations by 10th July 2002, as required by the EC Fixed Term Workers Directive.
The reason given is that the Employment Bill has not yet received royal assent (so, blame the Queen!).
The DTI announces its current intention is to bring the Regulations into force on 1st October 2002.
This leaves the government open on a Francovich claim - workers may be able to sue the government, rather than their employer, for any discrimination they suffer on grounds of being a fixed-term worker between 10th July and 1st October.
Further to my bulletin dated 22nd January 2002 (reproduced below), the government has announced it is not able to implement the Fixed Term Workers Regulations by 10th July 2002, as required by the EC Fixed Term Workers Directive.
The reason given is that the Employment Bill has not yet received royal assent (so, blame the Queen!).
The DTI announces its current intention is to bring the Regulations into force on 1st October 2002.
This leaves the government open on a Francovich claim - workers may be able to sue the government, rather than their employer, for any discrimination they suffer on grounds of being a fixed-term worker between 10th July and 1st October.
See http://www.dti.gov.uk/er/fixed/index.htm for further details.
The reason given is that the Employment Bill has not yet received royal assent (so, blame the Queen!).
The DTI announces its current intention is to bring the Regulations into force on 1st October 2002.
This leaves the government open on a Francovich claim - workers may be able to sue the government, rather than their employer, for any discrimination they suffer on grounds of being a fixed-term worker between 10th July and 1st October.
Further to my bulletin dated 22nd January 2002 (reproduced below), the government has announced it is not able to implement the Fixed Term Workers Regulations by 10th July 2002, as required by the EC Fixed Term Workers Directive.
The reason given is that the Employment Bill has not yet received royal assent (so, blame the Queen!).
The DTI announces its current intention is to bring the Regulations into force on 1st October 2002.
This leaves the government open on a Francovich claim - workers may be able to sue the government, rather than their employer, for any discrimination they suffer on grounds of being a fixed-term worker between 10th July and 1st October.
See http://www.dti.gov.uk/er/fixed/index.htm for further details.
New EAT Decisions
The following decisions have been placed on the EAT website this morning:
Nicholls v London Borough of Greenwich (Bell J., 14th June 2002)
Ms Nicholls was employed by a local authority for many years. Her contract provided that, on retirement, she receive a sum of two weeks' pay for each year worked. However, under regulations made pursuant to the Superannuation Act 1972, the ability of local authorities to make payments on retirement was capped at a level below that which Ms Nicholls would receive under her contract.
The EAT held that Ms Nicholls could not sue on her contract to recover the difference. The local authority was prohibited by statute from agreeing to pay the excess, thus the relevant provision in her contract was unenforceable. Permission was granted to appeal to the Court of Appeal.
To see the decision, go to http://www.employmentappeals.gov.uk/uploads/EAT134002542002/index.htm
Robinson v The Home Office (HHJ Wakefield, 3rd May 2002)
The Applicant submitted a medical certificate in support of her written application to adjourn her discrimination claim. A chairman rejected her application, stating that the tribunal would permit her to take frequent breaks, if needed. She then submitted another medical certificate, bearing the same date from the same medical practice, but signed by a different doctor. The tribunal again refused an adjournment, implying (by using the word 'purported') that the medical certificates were not genuine. It heard the case in her absence and dismissed it.
The EAT quashed the decision on the basis that the tribunal had no grounds to doubt the authenticity of the medical certificates. It also referred to the Applicant's right to a fair trial under article 6 of the European Convention on Human Rights. Accordingly, the Applicant's case was remitted to a fresh tribunal.
To see the decision, go to http://www.employmentappeals.gov.uk/uploads/EAT53301352002/index.htm
Nicholls v London Borough of Greenwich (Bell J., 14th June 2002)
Ms Nicholls was employed by a local authority for many years. Her contract provided that, on retirement, she receive a sum of two weeks' pay for each year worked. However, under regulations made pursuant to the Superannuation Act 1972, the ability of local authorities to make payments on retirement was capped at a level below that which Ms Nicholls would receive under her contract.
The EAT held that Ms Nicholls could not sue on her contract to recover the difference. The local authority was prohibited by statute from agreeing to pay the excess, thus the relevant provision in her contract was unenforceable. Permission was granted to appeal to the Court of Appeal.
To see the decision, go to http://www.employmentappeals.gov.uk/uploads/EAT134002542002/index.htm
Robinson v The Home Office (HHJ Wakefield, 3rd May 2002)
The Applicant submitted a medical certificate in support of her written application to adjourn her discrimination claim. A chairman rejected her application, stating that the tribunal would permit her to take frequent breaks, if needed. She then submitted another medical certificate, bearing the same date from the same medical practice, but signed by a different doctor. The tribunal again refused an adjournment, implying (by using the word 'purported') that the medical certificates were not genuine. It heard the case in her absence and dismissed it.
The EAT quashed the decision on the basis that the tribunal had no grounds to doubt the authenticity of the medical certificates. It also referred to the Applicant's right to a fair trial under article 6 of the European Convention on Human Rights. Accordingly, the Applicant's case was remitted to a fresh tribunal.
To see the decision, go to http://www.employmentappeals.gov.uk/uploads/EAT53301352002/index.htm
[Employment Law List] Liversidge
I have been asked to see if any solicitors whose clients' cases have been adversely affected by the decision in Liversidge would like to get together to consider their options.
As those involved in discrimination claims against the police will know, last month the Court of Appeal decided in Chief Constable of Bedfordshire Police v Liversidge that the Race Relations Act (and, by analogy, the Sex Discrimination Act) did not permit claims to be be brought against a Chief Constable in respect of harassment of one police officer by another. To put it another way, Chief Constables are not vicariously liable for harassment by police officers against police officers.
This drafting omission in the Race Relations Act has been corrected. It has not been corrected in the Sex Discrimination Act.
There are 86 cases under the RRA which are affected by the decision in Liversidge. It is not known how many cases will be affected under the SDA, but it is likely to be considerably more.
I have been asked by a solicitor to enquire whether any people representing police officers whose claims will be struck out because of Liversidge would like to co-operate, possibly in considering taking the matter to the House of Lords or possibly to consider other options.
If you are representing a client whose claim has been affected by Liversidge, and would like to be put in touch with other solicitors in the same position, send me an Email at mail@danielbarnett.co.uk ?subject=Liversidge with your details (including the name of the case and the tribunal in which it is due to be heard). I will collate the responses and distribute them to those who have replied.
As those involved in discrimination claims against the police will know, last month the Court of Appeal decided in Chief Constable of Bedfordshire Police v Liversidge that the Race Relations Act (and, by analogy, the Sex Discrimination Act) did not permit claims to be be brought against a Chief Constable in respect of harassment of one police officer by another. To put it another way, Chief Constables are not vicariously liable for harassment by police officers against police officers.
This drafting omission in the Race Relations Act has been corrected. It has not been corrected in the Sex Discrimination Act.
There are 86 cases under the RRA which are affected by the decision in Liversidge. It is not known how many cases will be affected under the SDA, but it is likely to be considerably more.
I have been asked by a solicitor to enquire whether any people representing police officers whose claims will be struck out because of Liversidge would like to co-operate, possibly in considering taking the matter to the House of Lords or possibly to consider other options.
If you are representing a client whose claim has been affected by Liversidge, and would like to be put in touch with other solicitors in the same position, send me an Email at mail@danielbarnett.co.uk ?subject=Liversidge with your details (including the name of the case and the tribunal in which it is due to be heard). I will collate the responses and distribute them to those who have replied.
Tuesday, 25 June 2002
New Articles
I have (at last!) updated the articles on my website. I have added:
• 'Agency Workers lose out' (ELA Briefing, July 2002)
• 'More Power for the Workers' (Times Law Supplement, 25/6/02)
• 'Developments in Age Discrimination' (New Law Journal, 21/6/02)
• 'Damages in Discrimination Claims' (New Law Journal Discrimination Supplement, 5/4/02)
• 'The Decline of Anya' (Employment Lawyer, March 2002)
They can be seen at www.danielbarnett.co.uk/article-index.html
• 'Agency Workers lose out' (ELA Briefing, July 2002)
• 'More Power for the Workers' (Times Law Supplement, 25/6/02)
• 'Developments in Age Discrimination' (New Law Journal, 21/6/02)
• 'Damages in Discrimination Claims' (New Law Journal Discrimination Supplement, 5/4/02)
• 'The Decline of Anya' (Employment Lawyer, March 2002)
They can be seen at www.danielbarnett.co.uk/article-index.html
New Articles
I have (at last!) updated the articles on my website. I have added:
• 'Agency Workers lose out' (ELA Briefing, July 2002)
• 'More Power for the Workers' (Times Law Supplement, 25/6/02)
• 'Developments in Age Discrimination' (New Law Journal, 21/6/02)
• 'Damages in Discrimination Claims' (New Law Journal Discrimination Supplement, 5/4/02)
• 'The Decline of Anya' (Employment Lawyer, March 2002)
They can be seen at www.danielbarnett.co.uk/article-index.html
• 'Agency Workers lose out' (ELA Briefing, July 2002)
• 'More Power for the Workers' (Times Law Supplement, 25/6/02)
• 'Developments in Age Discrimination' (New Law Journal, 21/6/02)
• 'Damages in Discrimination Claims' (New Law Journal Discrimination Supplement, 5/4/02)
• 'The Decline of Anya' (Employment Lawyer, March 2002)
They can be seen at www.danielbarnett.co.uk/article-index.html
Wednesday, 19 June 2002
Postal Delivery of IT1: C of A Judgment
The Court of Appeal has, this morning, handed down its decision in Consignia plc v Sealy.
Facts
Mr Sealy was dismissed on 9th July 2000. He posted his IT1, claiming unfair dismissal, on Friday, 6th October 2000. The three months for presenting his claim expired on Sunday, 8th October 2000. Due to postal delays, the IT1 did not arrive at the tribunal until Tuesday 10th October.
The Employment Tribunal's Decision
The employment tribunal presented inconsistent summary and extended reasons. Accordingly the Court of Appeal remitted the case to a fresh tribunal for re-consideration. In doing so, the Court of Appeal set out guidelines relating to presentation of claims by post.
The Employment Appeal Tribunal
The EAT refused permission to appeal, so off everyone went to the C of A.
Court of Appeal
The Court of Appeal held that the crucial question is whether a tribunal could conclude that the employee had posted a letter which, in the ordinary course of the post, could reasonably be expected to arrive by the end of the three month period. If it could reasonably be expected to arrive by the end of the three month period, but due to postal delays does not do so, then it would not be practicable to present within three months and an extension of time should be granted.
The Court of Appeal also held that the ordinary course of events should be decided by reference to the Civil Procedure Rules, i.e. 2 days for 1st class post (excluding Saturdays, Sundays and bank holidays - see CPR 6.7 and CPR 2.8).
Implications of Decision
It would now appear to be safe for a solicitor to rely on the post for lodging an IT1, provided it is posted first-class two clear days before the end of the limitation period. Note that evidence of posting is always prudent. Although not expressly overruled, this case would appear to dispense with previous guidance that it is incumbent on a solicitor, when posting the IT1 close to the 3-month expiry, to telephone the tribunal to check the IT1 has arrived.
Readers will realise the irony in the Post Office trying to take advantage of its own delay in delivering the IT1 in order to avoid liability!
The decision is available at http://www.courtservice.gov.uk/judgmentsfiles/j1228/Consignia_v_Sealy.htm . Paragraph 31 of the decision contains summary guidance on the correct course to follow.
Facts
Mr Sealy was dismissed on 9th July 2000. He posted his IT1, claiming unfair dismissal, on Friday, 6th October 2000. The three months for presenting his claim expired on Sunday, 8th October 2000. Due to postal delays, the IT1 did not arrive at the tribunal until Tuesday 10th October.
The Employment Tribunal's Decision
The employment tribunal presented inconsistent summary and extended reasons. Accordingly the Court of Appeal remitted the case to a fresh tribunal for re-consideration. In doing so, the Court of Appeal set out guidelines relating to presentation of claims by post.
The Employment Appeal Tribunal
The EAT refused permission to appeal, so off everyone went to the C of A.
Court of Appeal
The Court of Appeal held that the crucial question is whether a tribunal could conclude that the employee had posted a letter which, in the ordinary course of the post, could reasonably be expected to arrive by the end of the three month period. If it could reasonably be expected to arrive by the end of the three month period, but due to postal delays does not do so, then it would not be practicable to present within three months and an extension of time should be granted.
The Court of Appeal also held that the ordinary course of events should be decided by reference to the Civil Procedure Rules, i.e. 2 days for 1st class post (excluding Saturdays, Sundays and bank holidays - see CPR 6.7 and CPR 2.8).
Implications of Decision
It would now appear to be safe for a solicitor to rely on the post for lodging an IT1, provided it is posted first-class two clear days before the end of the limitation period. Note that evidence of posting is always prudent. Although not expressly overruled, this case would appear to dispense with previous guidance that it is incumbent on a solicitor, when posting the IT1 close to the 3-month expiry, to telephone the tribunal to check the IT1 has arrived.
Readers will realise the irony in the Post Office trying to take advantage of its own delay in delivering the IT1 in order to avoid liability!
The decision is available at http://www.courtservice.gov.uk/judgmentsfiles/j1228/Consignia_v_Sealy.htm . Paragraph 31 of the decision contains summary guidance on the correct course to follow.
Friday, 14 June 2002
DTI Consultation on Young Workers
Following an initial consultation period last year, the DTI has issued a further consultation paper on the new laws required to comply with the Young Workers' Directive, having amended the original proposals.
The new law will apply to 'young workers', defined as those over school leaving age, but under 18.
The latest position, which will be introduced through amendments to the Working Time Regulations 1998, are:
Working Hours
• a young worker's time shall not exceed eight hours a day or 40 hours a week (whether working for one or more employers);
• the maximum 8-hour day / 40-hour week shall not apply where the work is necessary to maintain continuity of (or respond to a surge in) service or production, where the additional hours will not interfere with training and where there is no adult worker available to perform the work.
Night Work
• young workers are not permitted to work between either 10pm and 6am (the default position) or, if the contract of employment provides, between 11pm and 7am.
• unless they work in particular sectors (agriculture, retail trading, a hotel, a bakery, catering activities other than a restaurant or a bar, or postal/newspaper deliveries), when the prohibited hours of work are between 12 midnight and 4am.
The further consultation period is open until 6th September 2002, and the new legislation will be introduced very shortly afterwards.
For more detail, go to http://www.dti.gov.uk/er/individual/youngconsult.htm
The new law will apply to 'young workers', defined as those over school leaving age, but under 18.
The latest position, which will be introduced through amendments to the Working Time Regulations 1998, are:
Working Hours
• a young worker's time shall not exceed eight hours a day or 40 hours a week (whether working for one or more employers);
• the maximum 8-hour day / 40-hour week shall not apply where the work is necessary to maintain continuity of (or respond to a surge in) service or production, where the additional hours will not interfere with training and where there is no adult worker available to perform the work.
Night Work
• young workers are not permitted to work between either 10pm and 6am (the default position) or, if the contract of employment provides, between 11pm and 7am.
• unless they work in particular sectors (agriculture, retail trading, a hotel, a bakery, catering activities other than a restaurant or a bar, or postal/newspaper deliveries), when the prohibited hours of work are between 12 midnight and 4am.
The further consultation period is open until 6th September 2002, and the new legislation will be introduced very shortly afterwards.
For more detail, go to http://www.dti.gov.uk/er/individual/youngconsult.htm
Tuesday, 11 June 2002
Leaked Proposals to overhaul employment law
Very few people will have missed the front page of today's Times, which contained an article describing an impending consultation paper from the DTI, due this summer.
Apparently the consultation paper will seek views on changing the law to:
• abolish the rule for one year's continuous employment for claiming unfair dismissal;
• lower the threshold for union recognition;
• an increase in the £52,600 cap for the unfair dismissal compensatory award;
• greater powers for re-instatement of unfairly dismissed employees;
• abolition of 'zero hour' contracts.
More details in The Times 11/6/02, pp1 and 22.
Apparently the consultation paper will seek views on changing the law to:
• abolish the rule for one year's continuous employment for claiming unfair dismissal;
• lower the threshold for union recognition;
• an increase in the £52,600 cap for the unfair dismissal compensatory award;
• greater powers for re-instatement of unfairly dismissed employees;
• abolition of 'zero hour' contracts.
More details in The Times 11/6/02, pp1 and 22.
Friday, 7 June 2002
New EAT Decision
This decision has just been placed on the EAT website. It is currently unreported, but may be reported in due course.
McLeod & Welsh v Phoenix Taxis & Rainbow Taxis (Lord Johnstone, 22/4/2002)
A surprising TUPE decision from the EAT. Phoenix taxis (a radio-cab company) sold its 'business' to Rainbow taxis. The employment tribunal found as a fact that, despite the description in the contract as a sale of a business:
• no assets had transferred
• no staff had transferred
• no premises had transferred
• the only thing that had transferred was the (temporary) use of the 'Phoenix Taxi' name and the Phoenix Taxi telephone number
The ET also held that the Phoenix Taxi undertaking ceased to retain its identity after the sale. Accordingly, after considering Spijkers, it held there was no transfer of an undertaking.
The EAT held that the ET failed to give sufficient weight to the label in the agreement of 'sale of the business'. Not only did the EAT allow the appeal, but it substituted a finding that a TUPE-transfer had occurred (rather than just remitting the case back to the ET).
This case seems to be authority for the proposition that the label the parties use is conclusive (rather than a balancing of the factors set out in Spijkers). It opens the way for purchasers of businesses to insist on writing into a contract 'there is no transfer of undertaking' and arguing that label is binding. That cannot be right.
• To see the decision, go to http://www.employmentappeals.gov.uk/uploads/EAT1344012242002/index.htm
McLeod & Welsh v Phoenix Taxis & Rainbow Taxis (Lord Johnstone, 22/4/2002)
A surprising TUPE decision from the EAT. Phoenix taxis (a radio-cab company) sold its 'business' to Rainbow taxis. The employment tribunal found as a fact that, despite the description in the contract as a sale of a business:
• no assets had transferred
• no staff had transferred
• no premises had transferred
• the only thing that had transferred was the (temporary) use of the 'Phoenix Taxi' name and the Phoenix Taxi telephone number
The ET also held that the Phoenix Taxi undertaking ceased to retain its identity after the sale. Accordingly, after considering Spijkers, it held there was no transfer of an undertaking.
The EAT held that the ET failed to give sufficient weight to the label in the agreement of 'sale of the business'. Not only did the EAT allow the appeal, but it substituted a finding that a TUPE-transfer had occurred (rather than just remitting the case back to the ET).
This case seems to be authority for the proposition that the label the parties use is conclusive (rather than a balancing of the factors set out in Spijkers). It opens the way for purchasers of businesses to insist on writing into a contract 'there is no transfer of undertaking' and arguing that label is binding. That cannot be right.
• To see the decision, go to http://www.employmentappeals.gov.uk/uploads/EAT1344012242002/index.htm
Tuesday, 28 May 2002
Newsflash: Government Reshuffle
Following the resignation of Stephen Byers yesterday, 10 Downing Street has just announced that the new Secretary for Work and Pensions will be Andrew Smith.
And for those who are interested in such mundane matters, the existing Work and Pensions Secretary, Alistair Darling, will replace Stephen Byers as Transport Secretary.
And for those who are interested in such mundane matters, the existing Work and Pensions Secretary, Alistair Darling, will replace Stephen Byers as Transport Secretary.
New EAT Decision
This decision has just been placed on the EAT website. It is currently unreported, but may be reported in due course.
Hill v Howard Chappel (HHJ Peter Clark, 20/3/02)
An employer is not entitled to deduct overpaid holiday from an employee's final salary payment, in the absence of a 'relevant agreement' under the Working Time Regulations 1998 authorising such a deduction.
Thus, on the facts, Mrs Hill had taken 15 days' holiday in the holiday year when, on a pro rata basis, she was only entitled to take 10 days. The employment tribunal, when awarding Mrs Hill her unpaid salary, gave credit to the employer for the 5 days' additional holiday. The EAT reversed this, holding that (unlike reg. 14(2) of the WTR 1998, where an employee is entitled to compensation for untaken holiday on termination of employment) an employer cannot have credit for overpaid holiday under the legislative framework.
• click here for the full transcript
Hill v Howard Chappel (HHJ Peter Clark, 20/3/02)
An employer is not entitled to deduct overpaid holiday from an employee's final salary payment, in the absence of a 'relevant agreement' under the Working Time Regulations 1998 authorising such a deduction.
Thus, on the facts, Mrs Hill had taken 15 days' holiday in the holiday year when, on a pro rata basis, she was only entitled to take 10 days. The employment tribunal, when awarding Mrs Hill her unpaid salary, gave credit to the employer for the 5 days' additional holiday. The EAT reversed this, holding that (unlike reg. 14(2) of the WTR 1998, where an employee is entitled to compensation for untaken holiday on termination of employment) an employer cannot have credit for overpaid holiday under the legislative framework.
• click here for the full transcript
Monday, 27 May 2002
Chancery Division: Pensionable Salary
The High Court has held (London Borough of Newham v Skingle & The Pensions Ombudsman), on an appeal from the Pensions Ombudsman, that pensionable salary for local government employees does not include overtime payments.
The point (which is summarised in the one sentence above) is short but important, as it applies to a wide range of local government and possibly, other public service, employees.
Click here to see the Decision.
The point (which is summarised in the one sentence above) is short but important, as it applies to a wide range of local government and possibly, other public service, employees.
Click here to see the Decision.
Friday, 17 May 2002
TUPE: Rossiter v Pendragon - Court of Appeal
According to a case summary issued by the Independent Council of Law Reporting, the Court of Appeal decided the appeal in Rossiter v Pendragon (and the associated case, Clarke v Air Foyle Ltd) last week. The transcript is not yet available.
The Court of Appeal has overturned the EAT decisions in both cases, and held that a change to employees' terms and conditions following a TUPE transfer does not automatically amount to a constructive dismissal - the employee still needs to establish a fundamental breach of his pre-transfer rights. Thus a transferee can vary terms in the same way the original employer might have been able to do, if such a variation would not have been a fundamental breach by the original employer.
I set out the full summary below (copyright ICLR)
An employee could not claim constructive dismissal on a transfer of undertaking where his working conditions had substantially changed to his detriment without showing a fundamental breach of contract by the employer
The Court of Appeal so stated when (i) allowing the appeal of Pendragon plc against the ruling of the Employment Appeal Tribunal [2001] ICR 1265 that its employee Mr Norman Rossiter had been constructively dismissed and (ii) allowing the appeal of Air Foyle Ltd against the decision of the Employment Appeal Tribunal on 3 October 2001 which, on a preliminary ruling, dismissed its appeal against an employment tribunal's decision that Mr Crosby-Clarke had been constructively dismissed.
The two conjoined appeals raised the same issue whether an employee employed on different terms on a transfer of undertaking could establish constructive dismissal by reason of substantial change in his work conditions to his detriment when the acts of the employer were not repudiatory or in breach of contract.
PETER GIBSON LJ said that it was quite clear from the language of reg 5(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE") that no new right was thereby intended to be created . The regulation preserved the rights arising apart from TUPE and the only such right was that of an employee to resign when faced with repudiation of his contract by the employer. If there were a right to claim constructive dismissal if there had only been a substantial change in circumstances without breach of contract that would arise apart from not under TUPE.
The language of reg 5(5) was chosen to implement art 4(2) of the Directive and s 95(1)(c) of the Employment Rights Act 1996. Only conduct of an employer amounting to repudiation would entitle an employee to terminate a contract without notice.
The appeal tribunal in Rossiter's case[2001] ICR 1265,1275 erred in holding that s 95(1(c) should be construed in a way enabling an employee to claim constructive dismissal where there was no repudiatory conduct by the employer. The test in Western Excavating (ECC) Ltd v Sharp [1978] QB 761 still applied as much to a case involving a transfer of undertaking as when there was no transfer.
Jonathan Parker LJ and Sir Christopher Slade agreed.
The Court of Appeal has overturned the EAT decisions in both cases, and held that a change to employees' terms and conditions following a TUPE transfer does not automatically amount to a constructive dismissal - the employee still needs to establish a fundamental breach of his pre-transfer rights. Thus a transferee can vary terms in the same way the original employer might have been able to do, if such a variation would not have been a fundamental breach by the original employer.
I set out the full summary below (copyright ICLR)
An employee could not claim constructive dismissal on a transfer of undertaking where his working conditions had substantially changed to his detriment without showing a fundamental breach of contract by the employer
The Court of Appeal so stated when (i) allowing the appeal of Pendragon plc against the ruling of the Employment Appeal Tribunal [2001] ICR 1265 that its employee Mr Norman Rossiter had been constructively dismissed and (ii) allowing the appeal of Air Foyle Ltd against the decision of the Employment Appeal Tribunal on 3 October 2001 which, on a preliminary ruling, dismissed its appeal against an employment tribunal's decision that Mr Crosby-Clarke had been constructively dismissed.
The two conjoined appeals raised the same issue whether an employee employed on different terms on a transfer of undertaking could establish constructive dismissal by reason of substantial change in his work conditions to his detriment when the acts of the employer were not repudiatory or in breach of contract.
PETER GIBSON LJ said that it was quite clear from the language of reg 5(5) of the Transfer of Undertakings (Protection of Employment) Regulations 1981 ("TUPE") that no new right was thereby intended to be created . The regulation preserved the rights arising apart from TUPE and the only such right was that of an employee to resign when faced with repudiation of his contract by the employer. If there were a right to claim constructive dismissal if there had only been a substantial change in circumstances without breach of contract that would arise apart from not under TUPE.
The language of reg 5(5) was chosen to implement art 4(2) of the Directive and s 95(1)(c) of the Employment Rights Act 1996. Only conduct of an employer amounting to repudiation would entitle an employee to terminate a contract without notice.
The appeal tribunal in Rossiter's case[2001] ICR 1265,1275 erred in holding that s 95(1(c) should be construed in a way enabling an employee to claim constructive dismissal where there was no repudiatory conduct by the employer. The test in Western Excavating (ECC) Ltd v Sharp [1978] QB 761 still applied as much to a case involving a transfer of undertaking as when there was no transfer.
Jonathan Parker LJ and Sir Christopher Slade agreed.
Thursday, 16 May 2002
Employment Regulation: New Report
The Better Regulation Task Force (a part of the Cabinet Office) has issued a report calling for reforms to the system of implementing employment legislation, referring to the unreasonable demands the method of regulation imposes on small and medium size employers.
Its recommendations include:
• commencement dates for new legislation be grouped together, so that various Acts / SIs take effect on the same date (perhaps once or twice a year), rather than at scattered intervals during the year;
• further research on the effect of employment legislation: in particular, its indirect effects on unemployment rates and investment, and degrees of awareness / penetration amongst workers;
• 'stress tests' for new legislation, to see which sectors of industry it might have the most effect on;
• a free interactive CD-ROM on employment rights, to be given to all employers (and updated regularly - either over the net, or by post once a year)
• a free or subsidised ACAS mediation service for businesses with less than 50 employees;
• free access to ACAS seminars for employers with less than 5 employees.
Click here to see the Report (Adobe Acrobat required).
Its recommendations include:
• commencement dates for new legislation be grouped together, so that various Acts / SIs take effect on the same date (perhaps once or twice a year), rather than at scattered intervals during the year;
• further research on the effect of employment legislation: in particular, its indirect effects on unemployment rates and investment, and degrees of awareness / penetration amongst workers;
• 'stress tests' for new legislation, to see which sectors of industry it might have the most effect on;
• a free interactive CD-ROM on employment rights, to be given to all employers (and updated regularly - either over the net, or by post once a year)
• a free or subsidised ACAS mediation service for businesses with less than 50 employees;
• free access to ACAS seminars for employers with less than 5 employees.
Click here to see the Report (Adobe Acrobat required).
Asbestosis Case: House of Lords Decision
The House of Lords has just handed down its decision in Fairchild, the mesothelioma test case.
The issue was whether employees who had developed mesothelioma from inhalation of asbestosis could bring a claim against various previous employers, when it was not clear (and, on current medical knowledge, impossible to prove) which of several employers had been the employer at the time of inhalation of the asbestos.
The Court of Appeal had held that, because it could not be said on balance of probabilities whether a particular employer was responsible, the claims must fail against all employers.
The House of Lords has reversed this, and permitted the claims to succeed. The basis of their decision is not yet known (a press release has been issued, but the judgment is not publicly available). It should become available later today, probably on the House of Lords website at http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
The issue was whether employees who had developed mesothelioma from inhalation of asbestosis could bring a claim against various previous employers, when it was not clear (and, on current medical knowledge, impossible to prove) which of several employers had been the employer at the time of inhalation of the asbestos.
The Court of Appeal had held that, because it could not be said on balance of probabilities whether a particular employer was responsible, the claims must fail against all employers.
The House of Lords has reversed this, and permitted the claims to succeed. The basis of their decision is not yet known (a press release has been issued, but the judgment is not publicly available). It should become available later today, probably on the House of Lords website at http://www.parliament.the-stationery-office.co.uk/pa/ld199697/ldjudgmt/ldjudgmt.htm
Thursday, 9 May 2002
Age Discrimination Bill 2002
The Age Discrimination (No. 2) Bill 2002 has been introduced to the House of Commons.
It contains the following provisions (applying to both employees and contract workers):
• making it unlawful to discriminate directly on grounds of age;
• making it unlawful to discriminate indirectly on grounds of age, unless objectively justified;
• making it an offence to specify an actual or preferred upper age limit in a job advertisement;
• making it unlawful to set a normal retirement age in contracts of employment, unless there is an objective justification (the example is given of a retirement age linked to an occupational pension scheme agreed between the parties)
• a defence where the age requirement is a genuine and determining occupational requirement
• imposing a duty on public authorities to promote age equality in employment practices;
• setting up an Age Equality Commission, to monitor implementation of the Act and work towards the elimination of age discrimination.
A reading of the Bill (it is a private member's bill) suggests it has been 'cut and pasted' from older discrimination legislation. For example:
• it refers throughout to 'industrial', rather than 'employment' tribunals;
• it does not contain any time limit for enforcement of rights (i.e. there is simply no reference to the normal 3-month time limit);
• however, it does use the more modern terminology for indirect discrimination, namely 'a provision, criterion or practice' rather than the older 'requirement or condition'.
Click here to see the Bill (Adobe Acrobat required).
It contains the following provisions (applying to both employees and contract workers):
• making it unlawful to discriminate directly on grounds of age;
• making it unlawful to discriminate indirectly on grounds of age, unless objectively justified;
• making it an offence to specify an actual or preferred upper age limit in a job advertisement;
• making it unlawful to set a normal retirement age in contracts of employment, unless there is an objective justification (the example is given of a retirement age linked to an occupational pension scheme agreed between the parties)
• a defence where the age requirement is a genuine and determining occupational requirement
• imposing a duty on public authorities to promote age equality in employment practices;
• setting up an Age Equality Commission, to monitor implementation of the Act and work towards the elimination of age discrimination.
A reading of the Bill (it is a private member's bill) suggests it has been 'cut and pasted' from older discrimination legislation. For example:
• it refers throughout to 'industrial', rather than 'employment' tribunals;
• it does not contain any time limit for enforcement of rights (i.e. there is simply no reference to the normal 3-month time limit);
• however, it does use the more modern terminology for indirect discrimination, namely 'a provision, criterion or practice' rather than the older 'requirement or condition'.
Click here to see the Bill (Adobe Acrobat required).
Wednesday, 1 May 2002
New EAT Decisions
These decisions have just been placed on the EAT website. They are currently unreported, but may be reported in due course.
Paggetti v Cobb (HHJ Peter Clark, 22/3/02)
An employee's compensatory award was calculated on the basis of his actual wage, which was £1.88 per hour. The EAT overturned this, holding that when calculating a compensatory award, a tribunal should never base it on less than the minimum wage (then £3.60ph) because, to do so, would be to disregard the National Minimum Wage Act 1988 and allow the employer to benefit from his breach of that Act. Accordingly, the compensatory award should be calculated based on an hourly rate of £3.60, not £1.80.
• click here for the full transcript
Brown v Tomlinsons Dairies (Mr Commissioner Howell QC, 10/4/02)
The employee was at risk of redundancy, but had not been dismissed. He wrote to the employer, asserting he had been dismissed, and refused to attend work. After several attempts to persuade him he had not been dismissed, the employer eventually treated the employee as having resigned. The EAT confirmed this was a dismissal within section 95 of the ERA 1996, by way of the employer accepting the employee's repudiatory breach (refusing to work) and thereby bringing the contract to an end. However, the dismissal was fair, primarily because there was little else the employer could do.
• click here for the full transcript
Paggetti v Cobb (HHJ Peter Clark, 22/3/02)
An employee's compensatory award was calculated on the basis of his actual wage, which was £1.88 per hour. The EAT overturned this, holding that when calculating a compensatory award, a tribunal should never base it on less than the minimum wage (then £3.60ph) because, to do so, would be to disregard the National Minimum Wage Act 1988 and allow the employer to benefit from his breach of that Act. Accordingly, the compensatory award should be calculated based on an hourly rate of £3.60, not £1.80.
• click here for the full transcript
Brown v Tomlinsons Dairies (Mr Commissioner Howell QC, 10/4/02)
The employee was at risk of redundancy, but had not been dismissed. He wrote to the employer, asserting he had been dismissed, and refused to attend work. After several attempts to persuade him he had not been dismissed, the employer eventually treated the employee as having resigned. The EAT confirmed this was a dismissal within section 95 of the ERA 1996, by way of the employer accepting the employee's repudiatory breach (refusing to work) and thereby bringing the contract to an end. However, the dismissal was fair, primarily because there was little else the employer could do.
• click here for the full transcript
Monday, 29 April 2002
Employment TaskForce Report
The Employment Tribunal System Taskforce, chaired by Janet Gaymer, has today published its report on reform of the employment tribunal system. The report was provided to the DTI and the Lord Chancellor.
The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system
Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.
Both a summary, and the full report, have been published on the internet.
The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system
Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.
Both a summary, and the full report, have been published on the internet.
UK in further breach of Working Time Directive
According to a press release just issued, the European Commission has upheld a complaint against the UK government, holding that the Working Time Regulations do not properly implement the EC Working Time Directive.
Amicus, the trade union, complained to the Commission that the WTR fail to implement the Directive because:
• under the Regulations, overtime hours on night shifts are excluded from the 48-hour working week limit, which contravenes the Directive; and,
• under the Regulations, people could volunteer to work additional hours which are unmeasured by the employer, thereby undermining the Directive.
According to the press release, the Commission has issued infringement proceedings against the UK, giving it two months to comply.
The government has already been forced to amend the Regulations, last year, on the basis that the 13-week qualifying period for holiday pay breached the Working Time Directive.
Amicus, the trade union, complained to the Commission that the WTR fail to implement the Directive because:
• under the Regulations, overtime hours on night shifts are excluded from the 48-hour working week limit, which contravenes the Directive; and,
• under the Regulations, people could volunteer to work additional hours which are unmeasured by the employer, thereby undermining the Directive.
According to the press release, the Commission has issued infringement proceedings against the UK, giving it two months to comply.
The government has already been forced to amend the Regulations, last year, on the basis that the 13-week qualifying period for holiday pay breached the Working Time Directive.
Monday, 22 April 2002
New TUPE Decision: RCO v Unison (C of A)
The decision of the Court of Appeal in RCO Support Services Ltd v UNISON (12th April 2002) is now available on the Court of Appeal website.
For details of the EAT's decision, see my bulletin dated 6th July 2000.
Facts
The Aintree Hospitals' NHS Trust decided to transfer much of the work from one hospital to a nearby hospital, three miles away. The issue was whether there was a transfer of undertakings in relation to the cleaning and catering support services (which were undertaken by different companies, one at each of the two hospitals).
The Decisions Below
Both the employment tribunal, and the EAT, held that a transfer of undertakings had taken place.
The Court of Appeal's Decision
The Court of Appeal upheld the decisions below, holding that a transfer had taken place.
Interestingly, Mummery LJ's judgment was supportive of the ECJ's decision in Suzen, indicating movement away from the 'let's all be rude about Suzen' attitude which has appeared in so many recent decisions.
He held:
"24. I agree that it has become clear from Suzen and later judgments that the Court of Justice now interprets the Directive as setting limits to its application in contracting out cases, which were not expressly identified in Spijkers or in Schmidt and other earlier judgments of the Court of Justice. In particular, the mere fact that the putative transferee carries on the same services as the putative transferor had done does not, by itself, support the conclusion that an entity retains its identity. It is not correct to treat that single circumstance as determinative in favour of a transfer. Indeed, there may be no scope for the application of the Directive in a case where, although the same labour-intensive activities are continued or the same services are supplied by a new contractor, none of the workforce has been taken on."
Mummery LJ then goes on to consider the position if a putative transferee deliberately refuses to take on incoming employees so as to avoid the application of the TUPE Regulations. He describes this as "circular" and "not the real point", emphasising that whether staff transfer is merely a factor.
• click here for the full transcript
For details of the EAT's decision, see my bulletin dated 6th July 2000.
Facts
The Aintree Hospitals' NHS Trust decided to transfer much of the work from one hospital to a nearby hospital, three miles away. The issue was whether there was a transfer of undertakings in relation to the cleaning and catering support services (which were undertaken by different companies, one at each of the two hospitals).
The Decisions Below
Both the employment tribunal, and the EAT, held that a transfer of undertakings had taken place.
The Court of Appeal's Decision
The Court of Appeal upheld the decisions below, holding that a transfer had taken place.
Interestingly, Mummery LJ's judgment was supportive of the ECJ's decision in Suzen, indicating movement away from the 'let's all be rude about Suzen' attitude which has appeared in so many recent decisions.
He held:
"24. I agree that it has become clear from Suzen and later judgments that the Court of Justice now interprets the Directive as setting limits to its application in contracting out cases, which were not expressly identified in Spijkers or in Schmidt and other earlier judgments of the Court of Justice. In particular, the mere fact that the putative transferee carries on the same services as the putative transferor had done does not, by itself, support the conclusion that an entity retains its identity. It is not correct to treat that single circumstance as determinative in favour of a transfer. Indeed, there may be no scope for the application of the Directive in a case where, although the same labour-intensive activities are continued or the same services are supplied by a new contractor, none of the workforce has been taken on."
Mummery LJ then goes on to consider the position if a putative transferee deliberately refuses to take on incoming employees so as to avoid the application of the TUPE Regulations. He describes this as "circular" and "not the real point", emphasising that whether staff transfer is merely a factor.
• click here for the full transcript
Friday, 19 April 2002
New Agency Worker Decision
Esso Petroleum v Jarvis [HHJ Pugsley, 18th January 2002]
Esso engaged a number of workers through an employment agency. The workers were paid by the agency, although the rates were set by Esso. They worked alongside Esso employees, were subject to the same lines of authority and under Esso's day-to-day control, sought authority for holidays from Esso, were subject to the same working policies, and received bonuses from Esso. By contrast, there was no grievance procedure or formal disciplinary procedure, and they were not members of the Esso pension scheme.
The employment tribunal decided that they were 'employees' of Esso, within the meaning of the ERA 1996 (and, although not stated in the decision, could presumably therefore claim unfair dismissal against Esso). The EAT overturned this, confirming that the absence of a contract between Esso and the workers meant that they were not capable of being 'employees', since there was no contract in existence which could be said to amount to a contract of employment.
This case is a further example of the lack of employment protection given to agency workers (albeit it should be extended if and when the EC Agency Workers Directive is implemented).
• click here for the Esso decision
Esso engaged a number of workers through an employment agency. The workers were paid by the agency, although the rates were set by Esso. They worked alongside Esso employees, were subject to the same lines of authority and under Esso's day-to-day control, sought authority for holidays from Esso, were subject to the same working policies, and received bonuses from Esso. By contrast, there was no grievance procedure or formal disciplinary procedure, and they were not members of the Esso pension scheme.
The employment tribunal decided that they were 'employees' of Esso, within the meaning of the ERA 1996 (and, although not stated in the decision, could presumably therefore claim unfair dismissal against Esso). The EAT overturned this, confirming that the absence of a contract between Esso and the workers meant that they were not capable of being 'employees', since there was no contract in existence which could be said to amount to a contract of employment.
This case is a further example of the lack of employment protection given to agency workers (albeit it should be extended if and when the EC Agency Workers Directive is implemented).
• click here for the Esso decision
Thursday, 11 April 2002
Government launches new 'Fitness Desk Aid' for GPs
The government has launched a new 'desk aid' for GPs to help them decide whether a patient is fit for work.
It contains the following guidelines:
• the nature of the patients medical condition and how long the condition is expected to last
• the functional limitations which result from the patients condition, particularly in relation to the type of tasks they actually perform at work
• any reasonable adjustments which might enable the patient to continue working - in relation to the workplace it is worth noting that under the Disability Discrimination Act 1995 an employer may be required to make reasonable adjustments for an employee with a long term disability
• any appropriate clinical guidelines - for example the Royal College of General Practitioners has produced clinical guidelines on the management of acute low back pain
• clinical management of the condition which is in the patients best interest regarding work fitness
It continues:
"you should always bear in mind that a patient may not be well served in the longer term by medical advice to refrain from work, if more appropriate clinical management would allow them to stay in work or return to work."
The guide is available here.
It contains the following guidelines:
• the nature of the patients medical condition and how long the condition is expected to last
• the functional limitations which result from the patients condition, particularly in relation to the type of tasks they actually perform at work
• any reasonable adjustments which might enable the patient to continue working - in relation to the workplace it is worth noting that under the Disability Discrimination Act 1995 an employer may be required to make reasonable adjustments for an employee with a long term disability
• any appropriate clinical guidelines - for example the Royal College of General Practitioners has produced clinical guidelines on the management of acute low back pain
• clinical management of the condition which is in the patients best interest regarding work fitness
It continues:
"you should always bear in mind that a patient may not be well served in the longer term by medical advice to refrain from work, if more appropriate clinical management would allow them to stay in work or return to work."
The guide is available here.
Wednesday, 10 April 2002
Government promises to end Age Discrimination
Ian McCartney, Minister for Work and Pensions, has today set out the government's commitment to defeating age discrimination in employment, together with all other forms of ageism.
The pledge is for such action to occur over the next 20 years - perhaps not the most ambitious of targets given the EC Equal Treatment Framework Directive requires member states to implement age discrimination legislation by December 2006.
In the style of the great political orators, Ian McCartney said: "Older people are not the world's problem, they are part of the solution to the world's problem... Age discrimination is wrong and the time has come to bin it."
The pledge is for such action to occur over the next 20 years - perhaps not the most ambitious of targets given the EC Equal Treatment Framework Directive requires member states to implement age discrimination legislation by December 2006.
In the style of the great political orators, Ian McCartney said: "Older people are not the world's problem, they are part of the solution to the world's problem... Age discrimination is wrong and the time has come to bin it."
Tuesday, 9 April 2002
New EAT Decisions
These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website
Barlow v PE Jones Contractors Ltd [Mr Recorder Langstaff QC, 4th March 2002]
A potentially important case on the definition of 'worker', where the Respondent had inserted clauses into the contract of employment designed to negative any employment relationship. Many of the clauses were clearly gleaned from previous cases and the contract was a textbook example of the right things to include so as to prevent an employer/employee relationship arising. The employees claimed paid holiday under the Working Time Regulations, and argued that many of these clauses were intended to contract out of the legislation and were therefore void. The EAT did not consider it necessary to deal with this point, instead preferring to allow the appeal on the grounds that the employment tribunal seemed to have applied the test for who is an 'employee' rather than who is a 'worker'.
• click here for the Barlow decision
Curr v Marks & Spencers plc [HHJ Wilkie, 6th March 2002]
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
• click here for the Curr decision
Miller Bros. v Johnson [Mr Recorder Langstaff QC, 14th March 2002]
An employment tribunal has no jurisdiction to hear breach of contract claims where the breach occurred after termination of employment, even if the contract (being a compromise agreement) arose because of the termination of employment.
• click here for the Miller Bros. decision
Barlow v PE Jones Contractors Ltd [Mr Recorder Langstaff QC, 4th March 2002]
A potentially important case on the definition of 'worker', where the Respondent had inserted clauses into the contract of employment designed to negative any employment relationship. Many of the clauses were clearly gleaned from previous cases and the contract was a textbook example of the right things to include so as to prevent an employer/employee relationship arising. The employees claimed paid holiday under the Working Time Regulations, and argued that many of these clauses were intended to contract out of the legislation and were therefore void. The EAT did not consider it necessary to deal with this point, instead preferring to allow the appeal on the grounds that the employment tribunal seemed to have applied the test for who is an 'employee' rather than who is a 'worker'.
• click here for the Barlow decision
Curr v Marks & Spencers plc [HHJ Wilkie, 6th March 2002]
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
• click here for the Curr decision
Miller Bros. v Johnson [Mr Recorder Langstaff QC, 14th March 2002]
An employment tribunal has no jurisdiction to hear breach of contract claims where the breach occurred after termination of employment, even if the contract (being a compromise agreement) arose because of the termination of employment.
• click here for the Miller Bros. decision
Thursday, 4 April 2002
EC Information and Consultation Directive
The final text of the Information and Consultation Directive was published in the Official Journal of the European Communities on 23rd March 2002.
The Directive gives employees a right to be:
• informed about the business's economic situation,
• informed and consulted about employment prospects (particularly where there is a threat to employment); and,
• informed and consulted about about decisions likely to lead to substantial changes in work organisation or contractual relations (including redundancies and transfers).
Information and consultation has to take place at an appropriate time,. and with the relevant level of management. It is expected it will take place via a union or appropriate employee representatives (although this is yet to be determined by the UK legislation). The representatives will be entitled to meet the employer, submit their views and receive a reasoned response.
Employers may withhold information when disclosure would seriously harm the company or be prejudicial to it, or they may require that it be kept confidential by the employee representatives to whom it is disclosed.
The U.K. has three years to implement the Directive, i.e. until 23rd March 2005, by when it must apply to all businesses with over 150 employees. By March 2007 it must be extended to all businesses with over 100 employees, and by March 2008 it must apply to all businesses with 50 or more employees. The Directive does not apply to businesses with less than 50 employees. Businesses with 50+ employees account for about 75% of UK employees
The Directive gives employees a right to be:
• informed about the business's economic situation,
• informed and consulted about employment prospects (particularly where there is a threat to employment); and,
• informed and consulted about about decisions likely to lead to substantial changes in work organisation or contractual relations (including redundancies and transfers).
Information and consultation has to take place at an appropriate time,. and with the relevant level of management. It is expected it will take place via a union or appropriate employee representatives (although this is yet to be determined by the UK legislation). The representatives will be entitled to meet the employer, submit their views and receive a reasoned response.
Employers may withhold information when disclosure would seriously harm the company or be prejudicial to it, or they may require that it be kept confidential by the employee representatives to whom it is disclosed.
The U.K. has three years to implement the Directive, i.e. until 23rd March 2005, by when it must apply to all businesses with over 150 employees. By March 2007 it must be extended to all businesses with over 100 employees, and by March 2008 it must apply to all businesses with 50 or more employees. The Directive does not apply to businesses with less than 50 employees. Businesses with 50+ employees account for about 75% of UK employees
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