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
Thursday, 27 June 2002
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
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