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);

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!

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.

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.

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.

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.

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.

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.

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.

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/

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.