The following cases have just been placed on the EAT website.
Frewin v Consignia plc (HHJ Reid QC, 18/7/03)
In this case, the EAT clarifies the tension between London Fire & Civil Defence Authority v Betty (1994) and Edwards v Governers of Hanson School (2001).
In Betty, the EAT held that when considering capability dismissals, it was irrelevant to the question of fairness whether the employer caused the illness in the first place.
In Edwards, another division of the EAT held that Betty was probably wrongly decided, and that it was certainly relevant to compensation - and probably relevant to liability - if the employer was the cause of the employee's absence.
The EAT has now stated that Betty should be confined to its facts, and that when considering the fairness of a dismissal, a tribunal is entitled to take into account the fact that the incapacity was caused by the employer.
________________________________________
Thorpe v Dul, Brooksby Melton College & Learning and Skills Council (Wall J., 1/7/03)
A modern apprenticeship is not a contract of apprenticeship within the Employment Rights Act 1996. Therefore modern apprentices do not automatically fall within the definition of 'employee' and do not have the right to claim unfair dismissal and other statutory remedies.
However, on the facts of any given case, a traditional contract of employment might arise in addition to the modern apprenticeship arrangement. This is a question of fact which must be investigated by tribunals.
Thursday, 31 July 2003
Statutory Disciplinary and Grievance Procedures
I have updated my notes on the forthcoming disciplinary and grievance procedures which will become mandatory from October 2004.
To view or download them, click here.
To view or download them, click here.
New EAT Cases
The following cases have just been placed on the EAT website.
Frewin v Consignia plc (HHJ Reid QC, 18/7/03)
In this case, the EAT clarifies the tension between London Fire & Civil Defence Authority v Betty (1994) and Edwards v Governers of Hanson School (2001).
In Betty, the EAT held that when considering capability dismissals, it was irrelevant to the question of fairness whether the employer caused the illness in the first place.
In Edwards, another division of the EAT held that Betty was probably wrongly decided, and that it was certainly relevant to compensation - and probably relevant to liability - if the employer was the cause of the employee's absence.
The EAT has now stated that Betty should be confined to its facts, and that when considering the fairness of a dismissal, a tribunal is entitled to take into account the fact that the incapacity was caused by the employer.
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Thorpe v Dul, Brooksby Melton College & Learning and Skills Council (Wall J., 1/7/03)
A modern apprenticeship is not a contract of apprenticeship within the Employment Rights Act 1996. Therefore modern apprentices do not automatically fall within the definition of 'employee' and do not have the right to claim unfair dismissal and other statutory remedies.
However, on the facts of any given case, a traditional contract of employment might arise in addition to the modern apprenticeship arrangement. This is a question of fact which must be investigated by tribunals.
Frewin v Consignia plc (HHJ Reid QC, 18/7/03)
In this case, the EAT clarifies the tension between London Fire & Civil Defence Authority v Betty (1994) and Edwards v Governers of Hanson School (2001).
In Betty, the EAT held that when considering capability dismissals, it was irrelevant to the question of fairness whether the employer caused the illness in the first place.
In Edwards, another division of the EAT held that Betty was probably wrongly decided, and that it was certainly relevant to compensation - and probably relevant to liability - if the employer was the cause of the employee's absence.
The EAT has now stated that Betty should be confined to its facts, and that when considering the fairness of a dismissal, a tribunal is entitled to take into account the fact that the incapacity was caused by the employer.
--------------------------------------------------------------------------------
Thorpe v Dul, Brooksby Melton College & Learning and Skills Council (Wall J., 1/7/03)
A modern apprenticeship is not a contract of apprenticeship within the Employment Rights Act 1996. Therefore modern apprentices do not automatically fall within the definition of 'employee' and do not have the right to claim unfair dismissal and other statutory remedies.
However, on the facts of any given case, a traditional contract of employment might arise in addition to the modern apprenticeship arrangement. This is a question of fact which must be investigated by tribunals.
Friday, 25 July 2003
No Case to Answer - Court of Appeal
The Court of Appeal has handed down its decision in Logan v Commissioners of Customs & Excise.
The case is primarily concerned with submissions of 'no case to answer', in connection with which the majority of existing authorities date back to the 1970s. However, the Court of Appeal has held the position remains unchanged, confirming that even where the burden of proof lies on the Applicant (as in discrimination or constructive dismissal cases), it is only in exceptional or frivolous cases that it is right for an advocate to make an application of no case to answer.
The Court of Appeal berates the fact that the tribunal allowed the submission of no case to answer, and sent the case back for a rehearing. Ward LJ states:
"This outcome is one of the very reasons why submissions of no case to answer are dangerous to make and allow. The shortcut has once again led to a much longer journey for the parties at greater expense" (para 34)
The Court of Appeal also consider the principles in connection with 'last straw' resignations and provide a useful summary of the issue (paras. 30-33).
The case is primarily concerned with submissions of 'no case to answer', in connection with which the majority of existing authorities date back to the 1970s. However, the Court of Appeal has held the position remains unchanged, confirming that even where the burden of proof lies on the Applicant (as in discrimination or constructive dismissal cases), it is only in exceptional or frivolous cases that it is right for an advocate to make an application of no case to answer.
The Court of Appeal berates the fact that the tribunal allowed the submission of no case to answer, and sent the case back for a rehearing. Ward LJ states:
"This outcome is one of the very reasons why submissions of no case to answer are dangerous to make and allow. The shortcut has once again led to a much longer journey for the parties at greater expense" (para 34)
The Court of Appeal also consider the principles in connection with 'last straw' resignations and provide a useful summary of the issue (paras. 30-33).
Guide to Religion/Belief and Sexual Orientation Discrimination
The symbol ~ is used in phrases such as 's~x discrimination' to prevent this message being rejected by spam detectors]
ACAS has published guidance to the new laws prohibiting discrimination on grounds of s~xual orientation, and on grounds of religion or belief. The guidance seems useful and comprehensive, and ACAS is asking for feedback - presumably with the intention of issuing a formal Code of Practice in due course.
ACAS has published guidance to the new laws prohibiting discrimination on grounds of s~xual orientation, and on grounds of religion or belief. The guidance seems useful and comprehensive, and ACAS is asking for feedback - presumably with the intention of issuing a formal Code of Practice in due course.
Thursday, 24 July 2003
Revised Combined Code on Corporate Governance
The revised Combined Code on Corporate Governance was issued by the Financial Reporting Council yesterday. It comes into force for reporting years beginning on or after 1st November 2003.
The Code’s overall aim is to enhance board effectiveness and to improve investor confidence by raising standards of corporate governance. Its main features are:
The Code’s overall aim is to enhance board effectiveness and to improve investor confidence by raising standards of corporate governance. Its main features are:
- new definitions of the role of the board, the chairman and the non-executive directors;
- more open and rigorous procedures for the appointment of directors and from a wider pool of candidates;
- formal evaluation of the performance of boards, committees and individual directors, enhanced induction and more professional development of non-executive directors;
- at least half the board in larger listed companies to be independent non-executive directors, with a definition of independence of non-executive directors;
- the separation of the roles of the chairman and the chief executive to be reinforced;
- a chief executive should not go on to become chairman of the same company;
- closer relationships between the chairman, the senior independent director, non-executive directors and major shareholders; and
- a strengthened role for the audit committee in monitoring the integrity of the company’s financial reporting, reinforcing the independence of the external auditor and reviewing the management of financial and other risks.
DTI Flexible Working Forms
Monday, 21 July 2003
Employment Tribunal Annual Report
[Thanks to Claire Birkinshaw of Abbey Legal Protection Ltd for telling me the annual report had been published.]
The 2002/03 Employment Tribunal Service Annual Report has been published.
Key statistics are:
The 2002/03 Employment Tribunal Service Annual Report has been published.
Key statistics are:
- a 12% drop in the number of tribunal applications (just under 99,000, down from just over 112,000);
- but only a 3% reduction in the number of single applications registered (a truer representation of the workload);
- the largest number of claims are unfair dismissal (26%), followed by unlawful deduction from wages (23% - still quaintly called 'Wages Act' applications in the report, seven years after the Wages Act was repealed!). Breach of contract comes in with a surprisingly high 17% of applications, and discrimination claims account for 12% of tribunal applications.
- a reduction in the number of registered appeals to the EAT (1,170, compared with 1,432 the previous year). Of the 756 full hearings that took place, the appeal was allowed in 349 (46%) of them;
- 74% of cases were heard within six months of the application being lodged (obviously I seem to be involved in the other 26%!). The London tribunals seem to be the worst offenders (Stratford only managed 59%) and Bristol had the best record (91%);
- male staff represent 35% of all staff employed (excluding judicial posts), but 48% of management level staff. Hmmmm....
- 39% of all cases settled through ACAS, 31% were withdrawn, 13% were successful at tribunal, 11% were unsuccessful at tribunal, and 6% were 'disposed of otherwise'.
- 16 orders of reinstatement or reengagement were made. This is 0.2% of cases which had full hearings in the tribunal;
- costs orders were made in favour of the Applicant in 307 cases, and in favour of the Respondent in 691 cases.
Friday, 18 July 2003
Minimum Wage - Tips
[A job advertisement for Gotelee & Goldsmith, Ipswich, appears below]
The National Minimum Wage (Tips) Bill has been introduced in the House of Commons.
Its purpose is to correct the anomaly, under the National Minimum Wage Regulations 1999, that:
(a) tips paid directly from customers to staff (such as waiters or hairdressers) do not count as wages for the purpose of the minimum wage; whereas,
(b) if the tips go through the employer's payroll (which often happens when a service charge is automatically added to restaurant bills), those tips do count towards calculating whether the employee has been paid the minimum wage.
The Bill, assuming it is enacted, will amend regulation 31 of the National Minimum Wage Regulations 1999 so that no tips, whether paid directly to the employee or through the payroll, will count as remuneration going towards the minimum wage (currently £4.20ph for adults).
The National Minimum Wage (Tips) Bill has been introduced in the House of Commons.
Its purpose is to correct the anomaly, under the National Minimum Wage Regulations 1999, that:
(a) tips paid directly from customers to staff (such as waiters or hairdressers) do not count as wages for the purpose of the minimum wage; whereas,
(b) if the tips go through the employer's payroll (which often happens when a service charge is automatically added to restaurant bills), those tips do count towards calculating whether the employee has been paid the minimum wage.
The Bill, assuming it is enacted, will amend regulation 31 of the National Minimum Wage Regulations 1999 so that no tips, whether paid directly to the employee or through the payroll, will count as remuneration going towards the minimum wage (currently £4.20ph for adults).
Thursday, 17 July 2003
Equal Pay Regulations
The Equal Pay Act 1970 (Amendment) Regulations 2003 have just been published, and come into force on Saturday, 19th July 2003.
Their main effect is to:
• remove current provisions in Equal Pay Act 1970 s.2(5) under which compensation for breach is limited to two years back pay (so as to comply with the judgment of the ECJ in Preston v Wolverhampton Health Authority); and,
• extend the six month period after employment has ended during which a claim must be brought if an employer deliberately conceals relevant facts or if the claimant was under a disability.
The Regulations amend and add to the Equal Pay Act 1970, and provide in outline as follows:-
• reg 1. Commencement date - 19th July 2003.
• reg 2. Transitional provisions covering situations existing at 19th July 2003.
• reg 3. Equal pay proceedings must be instituted on or before the "qualifying date" (as defined) and an award to cover back-pay cannot go back beyond the "arrears date" as defined.
• reg 4. Defines the "qualifying date" (normally 6 months after the last day of the employment).
• reg 5. Defines the "arrears date" (normally the date which is 6 years before the day on which the proceedings are instituted). There are different rules for Scotland (normally the period of 5 years ending on the day on which the proceedings are instituted).
• reg 6. Consequentials.
• reg 7. Defines the "qualifying date" for members of the armed forces (normally nine months after the end of service).
• reg 8. Defines the "arrears date" for members of the armed forces (normally the date which is 6 years before the day on which complaint under the service redress procedures was made
• reg 9. Defines "disability" (see immediately below).
The new rules make special provision to extend both the "qualifying date" and the "arrears date" in favour of a claimant if the employer deliberately concealed relevant facts or if the employee was under a disability . "Disability" for this purpose means under a legal disability (ie being under age or mentally incapable) and has nothing to do with the definition used in the Disability Discrimination Act 1995.
Their main effect is to:
• remove current provisions in Equal Pay Act 1970 s.2(5) under which compensation for breach is limited to two years back pay (so as to comply with the judgment of the ECJ in Preston v Wolverhampton Health Authority); and,
• extend the six month period after employment has ended during which a claim must be brought if an employer deliberately conceals relevant facts or if the claimant was under a disability.
The Regulations amend and add to the Equal Pay Act 1970, and provide in outline as follows:-
• reg 1. Commencement date - 19th July 2003.
• reg 2. Transitional provisions covering situations existing at 19th July 2003.
• reg 3. Equal pay proceedings must be instituted on or before the "qualifying date" (as defined) and an award to cover back-pay cannot go back beyond the "arrears date" as defined.
• reg 4. Defines the "qualifying date" (normally 6 months after the last day of the employment).
• reg 5. Defines the "arrears date" (normally the date which is 6 years before the day on which the proceedings are instituted). There are different rules for Scotland (normally the period of 5 years ending on the day on which the proceedings are instituted).
• reg 6. Consequentials.
• reg 7. Defines the "qualifying date" for members of the armed forces (normally nine months after the end of service).
• reg 8. Defines the "arrears date" for members of the armed forces (normally the date which is 6 years before the day on which complaint under the service redress procedures was made
• reg 9. Defines "disability" (see immediately below).
The new rules make special provision to extend both the "qualifying date" and the "arrears date" in favour of a claimant if the employer deliberately concealed relevant facts or if the employee was under a disability . "Disability" for this purpose means under a legal disability (ie being under age or mentally incapable) and has nothing to do with the definition used in the Disability Discrimination Act 1995.
Release to Journalists
GOVERNMENT REVERSES SEX DISCRIMINATION LOOPHOLE
1. The government has published an amendment to the Sex Discrimination Act which closes an existing loophole.
2. Since a court decision in 2000, neither officers nor the chief constables of police forces have not been liable for discrimination or harassment committed by one police officer against another.
3. This means that a woman police constable who is sexually harassed could not bring a sex discrimination claim against the officer who was harassing her, nor against the police force (her employer).
4. This loophole was caused by poor legal drafting when the Sex Discrimination Act 1975 was passed in 1975, but was not spotted until 2000 in the case of Chief Constable of Bedfordshire Police v Liversidge
5. The government has, today, issued a statutory instrument which amends the relevant provisions of the Sex Discrimination Act and closes the loophole.
6. Accordingly, as of Saturday 19th July 2003 (when the amendment comes into force), police officers will be able to claim for sexual harassment against their employers.
7. Daniel Barnett, barrister at 2 Gray's Inn Square Chambers, comments: "This is an overdue and necessary change in the law. Hundreds of police constables have had to tolerate a culture of harassment and discrimination, with no legal remedy. No other country would tolerate this lack of protection for its police".
NOTES TO EDITORS
1. The Sex Discrimination Act 1975 (Amendment) Regulations 2003 were published today and come into force on 19th July 2003.
2. The case in which the courts decided that police officers were not covered by the Sex Discrimination Act 1975 was Chief Constable of Bedfordshire Police v Liversidge (2000).
3. Mrs Cheryldeen Liversidge was a black woman police constable in the Bedfordshire Police. She brought a race discrimination claim against the Chief Constable of Bedfordshire Police and a fellow constable, PC Fitzgibbon. She alleged that PC Fitzgibbon had referred to her as a "Papa Mike" or "PM", a derogatory term meaning "Porch Monkey" used in some parts of America to refer to a negro woman.
4. Her claims against the Chief Constable included a claim that he was vicariously liable as employer for PC Fitzgibbon's alleged wrongdoing. She also alleged that the investigation by the police into her complaint had been inadequate and that disciplinary charges brought against her constituted sex discrimination and/or victimisation for which the Chief Constable was responsible. She further alleged that the Chief Constable did not investigate her complaint with the same energy, commitment and competence compared with the way PC Fitzgibbon's counter allegations had been investigated.
5. The Employment Appeal Tribunal (and, in 2002, the Court of Appeal) held that the discrimination statutes, through a drafting error, did not cover acts of discrimination by one police officer against another.
6. The position was reversed for race discrimination in the Race Relations (Amendment) Act 2000, so that police forces were liable for race discrimination by one officer against another. However, no amendment was made at the time for sex discrimination, and so police officers have been unprotected for the last three years.
1. The government has published an amendment to the Sex Discrimination Act which closes an existing loophole.
2. Since a court decision in 2000, neither officers nor the chief constables of police forces have not been liable for discrimination or harassment committed by one police officer against another.
3. This means that a woman police constable who is sexually harassed could not bring a sex discrimination claim against the officer who was harassing her, nor against the police force (her employer).
4. This loophole was caused by poor legal drafting when the Sex Discrimination Act 1975 was passed in 1975, but was not spotted until 2000 in the case of Chief Constable of Bedfordshire Police v Liversidge
5. The government has, today, issued a statutory instrument which amends the relevant provisions of the Sex Discrimination Act and closes the loophole.
6. Accordingly, as of Saturday 19th July 2003 (when the amendment comes into force), police officers will be able to claim for sexual harassment against their employers.
7. Daniel Barnett, barrister at 2 Gray's Inn Square Chambers, comments: "This is an overdue and necessary change in the law. Hundreds of police constables have had to tolerate a culture of harassment and discrimination, with no legal remedy. No other country would tolerate this lack of protection for its police".
NOTES TO EDITORS
1. The Sex Discrimination Act 1975 (Amendment) Regulations 2003 were published today and come into force on 19th July 2003.
2. The case in which the courts decided that police officers were not covered by the Sex Discrimination Act 1975 was Chief Constable of Bedfordshire Police v Liversidge (2000).
3. Mrs Cheryldeen Liversidge was a black woman police constable in the Bedfordshire Police. She brought a race discrimination claim against the Chief Constable of Bedfordshire Police and a fellow constable, PC Fitzgibbon. She alleged that PC Fitzgibbon had referred to her as a "Papa Mike" or "PM", a derogatory term meaning "Porch Monkey" used in some parts of America to refer to a negro woman.
4. Her claims against the Chief Constable included a claim that he was vicariously liable as employer for PC Fitzgibbon's alleged wrongdoing. She also alleged that the investigation by the police into her complaint had been inadequate and that disciplinary charges brought against her constituted sex discrimination and/or victimisation for which the Chief Constable was responsible. She further alleged that the Chief Constable did not investigate her complaint with the same energy, commitment and competence compared with the way PC Fitzgibbon's counter allegations had been investigated.
5. The Employment Appeal Tribunal (and, in 2002, the Court of Appeal) held that the discrimination statutes, through a drafting error, did not cover acts of discrimination by one police officer against another.
6. The position was reversed for race discrimination in the Race Relations (Amendment) Act 2000, so that police forces were liable for race discrimination by one officer against another. However, no amendment was made at the time for sex discrimination, and so police officers have been unprotected for the last three years.
Sex Discrimination Regulations
[Thanks to Charles Piggott of Mills & Reeve for telling me about these Regulations]
The Sex Discrimination Act 1975 (Amendment) Regulations 2003 have just been published, and come into force on Saturday, 19th July 2003. Unlike the correspondence Race and Equal Pay Regulations, very little seems to have been written about these amendments.
They make two very important changes, namely:
• at long last, reversing the rule in Liversidge, i.e. providing that chief constables of police forces will be vicariously liable for sex discrimination committed by one police officer against another;
• prohibiting discrimination after the end of the employment relationship, provided the act of discrimination arises out of and is closely connected to the employment relationship. This partly implements the House of Lord's decision in Relaxion Group v Rhys-Harper last month. The effect is that, for example, failures to provide a reference (or bad references on grounds of gender) is capable of amounting to direct discrimination (avoiding the need to bring a difficult claim of victimisation).
The Sex Discrimination Act 1975 (Amendment) Regulations 2003 have just been published, and come into force on Saturday, 19th July 2003. Unlike the correspondence Race and Equal Pay Regulations, very little seems to have been written about these amendments.
They make two very important changes, namely:
• at long last, reversing the rule in Liversidge, i.e. providing that chief constables of police forces will be vicariously liable for sex discrimination committed by one police officer against another;
• prohibiting discrimination after the end of the employment relationship, provided the act of discrimination arises out of and is closely connected to the employment relationship. This partly implements the House of Lord's decision in Relaxion Group v Rhys-Harper last month. The effect is that, for example, failures to provide a reference (or bad references on grounds of gender) is capable of amounting to direct discrimination (avoiding the need to bring a difficult claim of victimisation).
ACAS Booklet - Pay Systems
ACAS has just published a new booklet setting out how different pay systems work, and giving guidance on how businesses should introduce new, and modify existing, pay systems.
For a subject where a first reaction might be "isn't it obvious?", the booklet makes enlightening reading.
For a subject where a first reaction might be "isn't it obvious?", the booklet makes enlightening reading.
Sex Discriminations Regulations
[Thanks to Charles Piggott of Mills & Reeve for telling me about these Regulations]
The Sex Discrimination Act 1975 (Amendment) Regulations 2003 have just been published, and come into force on Saturday, 19th July 2003. Unlike the correspondence Race and Equal Pay Regulations, very little seems to have been written about these amendments.
They make two very important changes, namely:
* at long last, reversing the rule in Liversidge, i.e. providing that chief constables of police forces will be vicariously liable for sex discrimination committed by one police officer against another;
* prohibiting discrimination after the end of the employment relationship, provided the act of discrimination arises out of and is closely connected to the employment relationship. This partly implements the House of Lord's decision in Relaxion Group v Rhys-Harper last month. The effect is that, for example, failures to provide a reference (or bad references on grounds of gender) is capable of amounting to direct discrimination (avoiding the need to bring a difficult claim of victimisation).
The Sex Discrimination Act 1975 (Amendment) Regulations 2003
The Sex Discrimination Act 1975 (Amendment) Regulations 2003 have just been published, and come into force on Saturday, 19th July 2003. Unlike the correspondence Race and Equal Pay Regulations, very little seems to have been written about these amendments.
They make two very important changes, namely:
* at long last, reversing the rule in Liversidge, i.e. providing that chief constables of police forces will be vicariously liable for sex discrimination committed by one police officer against another;
* prohibiting discrimination after the end of the employment relationship, provided the act of discrimination arises out of and is closely connected to the employment relationship. This partly implements the House of Lord's decision in Relaxion Group v Rhys-Harper last month. The effect is that, for example, failures to provide a reference (or bad references on grounds of gender) is capable of amounting to direct discrimination (avoiding the need to bring a difficult claim of victimisation).
The Sex Discrimination Act 1975 (Amendment) Regulations 2003
Wednesday, 16 July 2003
EAT Comments on Costs
The following decisions have been placed on the EAT website recently.
Billany v Knutsford Conservative Club (HHJ Birtles, 8th July 2003)
An decision dealing with the 'employee / self-employed' distinction.
Of interest is the EAT dealing with an application for costs. It stated:
"Neither do we consider that the Appellant’s refusal of the Respondent’s offer to settle the appeal for £500 is itself unreasonable. Although the amount of compensation is a material factor for us to take into account, the case also involved the issue of whether or not the Appellant had been unfairly dismissed."
Which seems to be further support for the increasing common argument that Calderbank letters can be taken into account when deciding whether to award costs in tribunals.
For a summary on the current status of Calderbank letters in tribunals, send a blank Email to calderbank.article@danielbarnett.co.uk. You will receive an automatic reply, so please do not use that address if you want me to read your message.
Billany v Knutsford Conservative Club (HHJ Birtles, 8th July 2003)
An decision dealing with the 'employee / self-employed' distinction.
Of interest is the EAT dealing with an application for costs. It stated:
"Neither do we consider that the Appellant’s refusal of the Respondent’s offer to settle the appeal for £500 is itself unreasonable. Although the amount of compensation is a material factor for us to take into account, the case also involved the issue of whether or not the Appellant had been unfairly dismissed."
Which seems to be further support for the increasing common argument that Calderbank letters can be taken into account when deciding whether to award costs in tribunals.
For a summary on the current status of Calderbank letters in tribunals, send a blank Email to calderbank.article@danielbarnett.co.uk. You will receive an automatic reply, so please do not use that address if you want me to read your message.
Wednesday, 9 July 2003
Statutory Dispute Resolution
The DTI has published the first draft of Regulations on the forthcoming mandatory disciplinary and grievance procedures introduced by the Employment Act 2002. They are due to come into force on 1st October 2004.
For a summary of the relevant provisions of the Act, see 'Compulsory Dispute Resolution' [2002] 9 ELA Briefing 139.
The consultation document and draft Regulations are available at http://www.dti.gov.uk/er/individual/DRcondoc.pdf.
The draft Regulations make fairly horrendous reading, and seem to complicate rather than simplify disciplinary and grievance procedures for employers and employees.. A very loose summary (as they are full of conditions, exceptions and caveats) is:
• the short-form 'modified procedure' for disciplinary proceedings will apply if (a) the employee is guilty of gross misconduct (note: as presently drafted, reasonable grounds for belief in gross misconduct is insufficient - there has to have been actual gross misconduct), or (b) the dismissal is for reasons beyond the employer's control (I suspect this means pressure from third parties to dismiss);
• the short-form 'modified procedure' for grievance hearings will apply if the employment has terminated and both parties agree in writing to follow the modified procedure rather than the standard procedure;
• the disciplinary and grievance procedures do not apply if one party believes compliance would result in a significant threat to person or property, or if one party to the employment contract has been harassing the other (note: this rather drives a coach and horses through the requirement to use the grievance procedure in cases of s#ex, race or disability harassment, although there have been arguments raised that this exception is necessary to comply with EU laws);
• importantly, if any party fails to comply with a step in the procedure, it discharges the other party from continuing with the procedures. There is an exception where the employee has failed to attend a meeting for a reason which was not foreseen when the meeting was arranged;
• an extension of time for presentation of claims to the tribunal, by up to three months, when certain going through certain statutory procedures.
Responses to the consultation paper are due by 29th October 2003. I reproduce below the executive summary from the beginning of the consultation document, and the questions for consultation.
For a summary of the relevant provisions of the Act, see 'Compulsory Dispute Resolution' [2002] 9 ELA Briefing 139.
The consultation document and draft Regulations are available at http://www.dti.gov.uk/er/individual/DRcondoc.pdf.
The draft Regulations make fairly horrendous reading, and seem to complicate rather than simplify disciplinary and grievance procedures for employers and employees.. A very loose summary (as they are full of conditions, exceptions and caveats) is:
• the short-form 'modified procedure' for disciplinary proceedings will apply if (a) the employee is guilty of gross misconduct (note: as presently drafted, reasonable grounds for belief in gross misconduct is insufficient - there has to have been actual gross misconduct), or (b) the dismissal is for reasons beyond the employer's control (I suspect this means pressure from third parties to dismiss);
• the short-form 'modified procedure' for grievance hearings will apply if the employment has terminated and both parties agree in writing to follow the modified procedure rather than the standard procedure;
• the disciplinary and grievance procedures do not apply if one party believes compliance would result in a significant threat to person or property, or if one party to the employment contract has been harassing the other (note: this rather drives a coach and horses through the requirement to use the grievance procedure in cases of s#ex, race or disability harassment, although there have been arguments raised that this exception is necessary to comply with EU laws);
• importantly, if any party fails to comply with a step in the procedure, it discharges the other party from continuing with the procedures. There is an exception where the employee has failed to attend a meeting for a reason which was not foreseen when the meeting was arranged;
• an extension of time for presentation of claims to the tribunal, by up to three months, when certain going through certain statutory procedures.
Responses to the consultation paper are due by 29th October 2003. I reproduce below the executive summary from the beginning of the consultation document, and the questions for consultation.
Monday, 7 July 2003
Consulting on Consultation
[An advertisement for an employment law LLM at Middlesex University Business School appears below]
The government has issued its consultation document on the draft Regulations implementing the EU Information and Consultation Directive.
The Regulations will apply to all businesses with more than 50 employees. If 10% of employees request it, the company must set up a workforce committee enabling full information and consultation with the workforce.
The company must then provide information to, and consult with, the committee on matters relating to the development of the undertaking, changes in employment patterns (particularly if there is a threat to employment) and decisions likely to lead to substantial changes in work organisation or contractual relations, such as changes to terms and conditions, TUPE transfers or collective redundancies.
The sanctions, though, are small. Employees can apply to the CAC if the employer has failed to comply with the Regulations. If the CAC orders the employer to take steps to remedy the position, and the employer fails to comply with the CAC's order, the complainant can apply to the Employment Appeal Tribunal which can impose a fine of up to £75,000 (irrespective of the number of employees affected). This is unlikely to be a sufficient deterrent to large companies to force them to comply with the information and consultation obligations on large or sensitive issues.
Neither the CAC nor the EAT will have power to reverse or suspend any decisions or actions taken by the employer whilst in breach of its consultation obligations.
The consultation period closes on 7th November. The draft Regulations are appended at the back of the Consultation Document.
The government has issued its consultation document on the draft Regulations implementing the EU Information and Consultation Directive.
The Regulations will apply to all businesses with more than 50 employees. If 10% of employees request it, the company must set up a workforce committee enabling full information and consultation with the workforce.
The company must then provide information to, and consult with, the committee on matters relating to the development of the undertaking, changes in employment patterns (particularly if there is a threat to employment) and decisions likely to lead to substantial changes in work organisation or contractual relations, such as changes to terms and conditions, TUPE transfers or collective redundancies.
The sanctions, though, are small. Employees can apply to the CAC if the employer has failed to comply with the Regulations. If the CAC orders the employer to take steps to remedy the position, and the employer fails to comply with the CAC's order, the complainant can apply to the Employment Appeal Tribunal which can impose a fine of up to £75,000 (irrespective of the number of employees affected). This is unlikely to be a sufficient deterrent to large companies to force them to comply with the information and consultation obligations on large or sensitive issues.
Neither the CAC nor the EAT will have power to reverse or suspend any decisions or actions taken by the employer whilst in breach of its consultation obligations.
The consultation period closes on 7th November. The draft Regulations are appended at the back of the Consultation Document.
The following decisions have been placed on the EAT website in the last 24 hours.
Grattan plc v Hussain (HHJ Burke, 1st July 2003)
An important decision on conduct dismissals. The EAT emphasises the test is not whether further investigation might reasonably have been carried out by the employer, but whether the investigation which had been carried out could be regarded by a reasonable employer as adequate. It emphasises the decision in Sainsbury's Supermarkets v Hitt, which applies the 'range of reasonable responses' test to the investigation process as well as to the ultimate decision.
Stansbury v Datapulse plc (Wall J., 8th May 2003)
An unusually interesting case to read, in which it seems (although the EAT carefully avoided making findings of fact) that a wing member had been drunk during part of the employment tribunal hearing, had fallen asleep and had made disparaging remarks about the chairman to the parties when passing them in the corridor.
The EAT held, largely because the decision was (a) unanimous, (b) reserved, and (c) not substantively challenged that even if the Appellant's allegations (which were supported by some significant evidence) were upheld, it would not mean that he had not received a fair trial under article 6 of the ECHR. His appeal was accordingly dismissed.
Grattan plc v Hussain (HHJ Burke, 1st July 2003)
An important decision on conduct dismissals. The EAT emphasises the test is not whether further investigation might reasonably have been carried out by the employer, but whether the investigation which had been carried out could be regarded by a reasonable employer as adequate. It emphasises the decision in Sainsbury's Supermarkets v Hitt, which applies the 'range of reasonable responses' test to the investigation process as well as to the ultimate decision.
Stansbury v Datapulse plc (Wall J., 8th May 2003)
An unusually interesting case to read, in which it seems (although the EAT carefully avoided making findings of fact) that a wing member had been drunk during part of the employment tribunal hearing, had fallen asleep and had made disparaging remarks about the chairman to the parties when passing them in the corridor.
The EAT held, largely because the decision was (a) unanimous, (b) reserved, and (c) not substantively challenged that even if the Appellant's allegations (which were supported by some significant evidence) were upheld, it would not mean that he had not received a fair trial under article 6 of the ECHR. His appeal was accordingly dismissed.
Thursday, 3 July 2003
Time Off for Public Duties
The Employment Appeal Tribunal, in Riley-Williams v Argos Ltd, gives guidance for tribunals when deciding whether or not a dismissal is automatically unfair for not permitting an employee to take reasonable time off to sit as a magistrate.
The main points to draw from the decision are:
• tribunals should not consider whether the employer prevented an employee from taking time off, but the extent to which the employer permitted the employee to take time off;
• in deciding what is reasonable, the tribunal must balance the factors listed in section 50(4) of the Employment Rights Act 1996. They are mandatory factors.
• time off for public duties is in a different category to time off for union activities, or time off for personal reasons (such as maternity or parental leave). Thus it is irrelevant to take account of the employer's compassionate leave policy as a factor in determining how much time is reasonable - there is a wider public interest involved for employees who want time off to sit as a magistrate;
• the test of reasonableness is an objective one, balancing out the interests of the employer, the employee and the public. It is incorrect to apply the 'range of reasonable responses' test.
The main points to draw from the decision are:
• tribunals should not consider whether the employer prevented an employee from taking time off, but the extent to which the employer permitted the employee to take time off;
• in deciding what is reasonable, the tribunal must balance the factors listed in section 50(4) of the Employment Rights Act 1996. They are mandatory factors.
• time off for public duties is in a different category to time off for union activities, or time off for personal reasons (such as maternity or parental leave). Thus it is irrelevant to take account of the employer's compassionate leave policy as a factor in determining how much time is reasonable - there is a wider public interest involved for employees who want time off to sit as a magistrate;
• the test of reasonableness is an objective one, balancing out the interests of the employer, the employee and the public. It is incorrect to apply the 'range of reasonable responses' test.
Wednesday, 2 July 2003
Age Discrimination Consultation
A consultation paper seeking views on legislation to prohibit age discrimination has been published by the DTI.
The paper, entitled 'Age Matters', seeks views on:
• the abolition of employers' mandatory retirement ages (dismissal at a given age) unless employers can objectively justify them;
• the possibility of a default retirement age of 70, at which employers could retire employees without having to justify dismissal on objective grounds;
• proposed legitimate aims which employers, exceptionally, could use to help justify the retention of a small number of age-related practices; and
• changes to the legislation regarding unfair dismissal and redundancy.
The consultation will last until 20th October 2003 and the government intends to enact the legislation (which will take the form of Regulations) by the end of 2004, to give businesses a clear two years to change policies before they commence at the end of 2006.
The paper, entitled 'Age Matters', seeks views on:
• the abolition of employers' mandatory retirement ages (dismissal at a given age) unless employers can objectively justify them;
• the possibility of a default retirement age of 70, at which employers could retire employees without having to justify dismissal on objective grounds;
• proposed legitimate aims which employers, exceptionally, could use to help justify the retention of a small number of age-related practices; and
• changes to the legislation regarding unfair dismissal and redundancy.
The consultation will last until 20th October 2003 and the government intends to enact the legislation (which will take the form of Regulations) by the end of 2004, to give businesses a clear two years to change policies before they commence at the end of 2006.
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