[An advertisement for the forthcoming 2 Gray's Inn Square discrimination seminar appears below]
Defer-Wyatt v Williams (EAT 24/7/03, HHJ Peter Clark)
If an employee reasonably holds a mistaken belief as to the correct EDT (resulting in late submission of the IT1), it is not reasonably practicable for him to present his claim for unfair dismissal within time. An extension of time should be granted.
________________________________________
Royal Mail Group plc v Lynch (EAT 2/9/03, HHJ Ansell)
When construing documents to see if they have an adverse impact on workers (in this case, a part-time worker who was not allowed to transfer to full-time work unless she agreed that the transfer was temporary), tribunals should not adopt a contra proferentum approach but should examine the document against the background facts known to the parties at the time.
Friday, 26 September 2003
Thursday, 11 September 2003
Employment Status
The European Commission has produced a fascinating document on employment status across EU states. It has the snappy title:
"Economically dependant / quasi-subordinate (parasubordinate) employment: legal, social and economic aspects"
and comes in at a mere 141 pages. The report is not officially released until (I think) next week, but there is a sneak preview available on the European Commission website.
The report examines the distinction between employees and the self-employed, and considers what criteria are used in different countries to distinguish the two categories. It goes on to consider reform of the current distinction in all the member states and considers whether a community-wide definition is practical.
Amongst the dross are some interesting statistics (see pages 69+). In the year 2000 (the most recent year covered):
"Economically dependant / quasi-subordinate (parasubordinate) employment: legal, social and economic aspects"
and comes in at a mere 141 pages. The report is not officially released until (I think) next week, but there is a sneak preview available on the European Commission website.
The report examines the distinction between employees and the self-employed, and considers what criteria are used in different countries to distinguish the two categories. It goes on to consider reform of the current distinction in all the member states and considers whether a community-wide definition is practical.
Amongst the dross are some interesting statistics (see pages 69+). In the year 2000 (the most recent year covered):
- 11.8% of the UK workforce were self-employed;
- 25% of UK employees were part-time employees (44% of all women, compared with 9% of all men);
- 6.2% of UK employees were on fixed-term contracts.
DRC Codes of Practice - Consultation
The Disability Rights Commission is in the process of issuing two new Codes of Practice, to reflect changes to the Disability Discrimination Act 1995 which come into force next year.
The draft Codes have been put out to consultation (until 30th November). The DRC invites comments on the Codes, and has questionnaires on its website enabling interested parties to make representations.
The two Codes are entitled:
The draft Codes have been put out to consultation (until 30th November). The DRC invites comments on the Codes, and has questionnaires on its website enabling interested parties to make representations.
The two Codes are entitled:
- Employment and Occupation Code of Practice; and,
- Trade Organisations and Qualifications Bodies Code of Practice
Wednesday, 10 September 2003
Employment Status
[An advertisement for the forthcoming 2 Gray's Inn Square discrimination seminar appears below]
The European Commission has produced a fascinating document on employment status across EU states. It has the snappy title:
"Economically dependant / quasi-subordinate (parasubordinate) employment: legal, social and economic aspects"
and comes in at a mere 141 pages. The report is not officially released until (I think) next week, but there is a sneak preview available on the European Commission website.
The report examines the distinction between employees and the self-employed, and considers what criteria are used in different countries to distinguish the two categories. It goes on to consider reform of the current distinction in all the member states and considers whether a community-wide definition is practical.
Amongst the dross are some interesting statistics (see pages 69+). In the year 2000 (the most recent year covered):
• 11.8% of the UK workforce were self-employed;
• 25% of UK employees were part-time employees (44% of all women, compared with 9% of all men);
• 6.2% of UK employees were on fixed-term contracts.
The European Commission has produced a fascinating document on employment status across EU states. It has the snappy title:
"Economically dependant / quasi-subordinate (parasubordinate) employment: legal, social and economic aspects"
and comes in at a mere 141 pages. The report is not officially released until (I think) next week, but there is a sneak preview available on the European Commission website.
The report examines the distinction between employees and the self-employed, and considers what criteria are used in different countries to distinguish the two categories. It goes on to consider reform of the current distinction in all the member states and considers whether a community-wide definition is practical.
Amongst the dross are some interesting statistics (see pages 69+). In the year 2000 (the most recent year covered):
• 11.8% of the UK workforce were self-employed;
• 25% of UK employees were part-time employees (44% of all women, compared with 9% of all men);
• 6.2% of UK employees were on fixed-term contracts.
Tuesday, 9 September 2003
Press Bulletin CRE Statement on British National
In the last half-hour, speaking at the TUC conference, CRE Chairman Trevor Phillips has promised to back any trade union which expels any member of the British National Party (BNP).
Daniel Barnett, barrister at 2 Gray's Inn Square Chambers, comments:
"The BNP may try to take advantage of new laws coming in later this year, which prevent unions expelling members because of their philosophical beliefs. If hatred of other races and religions is deemed a philosophical belief, unions will be prohibited from expelling them.
"Moreover, the CRE may find itself liable to pay compensation to BNP members if it has supported the unions in unlawfully expelling them.
"But these new laws do not come in until December, so unions are safe following Trevor Phillips' call before then."
Note to Editor
Daniel Barnett is a barrister specialising in employment and discrimination law. He can be contacted on mail@danielbarnett.co.ukor by telephone on 020 7440 8499.
Daniel Barnett, barrister at 2 Gray's Inn Square Chambers, comments:
"The BNP may try to take advantage of new laws coming in later this year, which prevent unions expelling members because of their philosophical beliefs. If hatred of other races and religions is deemed a philosophical belief, unions will be prohibited from expelling them.
"Moreover, the CRE may find itself liable to pay compensation to BNP members if it has supported the unions in unlawfully expelling them.
"But these new laws do not come in until December, so unions are safe following Trevor Phillips' call before then."
Note to Editor
Daniel Barnett is a barrister specialising in employment and discrimination law. He can be contacted on mail@danielbarnett.co.ukor by telephone on 020 7440 8499.
New TUPE Regs - Update
Thanks to Michal Stein of Nabarro Nathanson, and to Pat Stein of the DTI, for the following information]
We have been awaiting the new TUPE regulations for some time. This is an update as to the current position (source: the DTI).
We have been awaiting the new TUPE regulations for some time. This is an update as to the current position (source: the DTI).
- draft Regulations will be published, for a three-month consultation period, in October 2003. This second consultation will concentrate on whether the draft Regulations fulfill the stated policy aims, rather than consulting on the underlying policy aims themselves;
- it is hoped the new Regulations will take effect from April 2004;
- the Regulations will primarily codify existing caselaw and consolidate the provisions of the recent Acquired Rights Directive. For example, the rule in Wilson stands and there will be no scope for changing employees' terms and conditions following a TUPE transfer (except as set out in the next bullet point);
- the principal substantive change is for insolvent businesses. When a genuinely insolvent business is transferred (which includes wound up businesses but not those placed in administrative receivership):
- the transferee will be able to agree changes to terms and conditions with the workforce (and will not thereby be in breach of TUPE); and,
- liability for arrears of wages will not transfer over, but will be met by the state (up to the statutory cap). The DTI will not reveal the position for arrears of wages over the statutory cap; this will be revealed next month.
- eventually, provisions will be introduced requiring the transferee employer to match an employee's pension contributions up to a maximum of 6% into a stakeholder (or equivalent) pension scheme. Thus if an employee contributes 4% of salary into an occupational pension scheme, the transferee will have to do likewise. However, this will not form part of the new TUPE regulations, but will form part of the forthcoming Pensions Bill, to be issued by the Department of Work and Pensions, and is unlikely to take effect for some time.
Ditch the BNP
In the last half-hour, speaking at the TUC conference, CRE Chairman Trevor Phillips has promised to back any trade union which expels any member of the British National Party (BNP).
Whilst this may be a morally commendable stance, one must query whether the CRE is opening itself for significant liability. As from 2nd December 2003, it will be unlawful for a trade union to expel members based on their religion, religious belief or similar philosophical belief. It is strongly arguable that membership of the BNP demonstrates a philosophical belief that persons of a particular race - or religion - should have different rights to white anglo-saxon protestants. For a trade union to expel members because of this belief may contravene regulation 15 of the Employment Equality (Religion or Belief) Regulations 2003.
In turn, by inducing unions to expel members of the BNP, the Commission for Racial Equality may be:
So good on Trevor Phillips.
Whilst this may be a morally commendable stance, one must query whether the CRE is opening itself for significant liability. As from 2nd December 2003, it will be unlawful for a trade union to expel members based on their religion, religious belief or similar philosophical belief. It is strongly arguable that membership of the BNP demonstrates a philosophical belief that persons of a particular race - or religion - should have different rights to white anglo-saxon protestants. For a trade union to expel members because of this belief may contravene regulation 15 of the Employment Equality (Religion or Belief) Regulations 2003.
In turn, by inducing unions to expel members of the BNP, the Commission for Racial Equality may be:
- (a) aiding the union's unlawful act - which, in turn, is actionable under regulation 23; and,
- (b) insofar as the unions have contractual membership rules by which they undertakes not to expel members on grounds of political or other beliefs (as many do), liable for inducing a breach of contract.
So good on Trevor Phillips.
Friday, 5 September 2003
New EAT Decisions
The following decisions have been placed on the EAT website in the last few days.
Securiplan v Bademosi (HHJ McMullen, 9th May 2003)
A TUPE case, dealing with the issue of whether an employee was assigned to the part of the undertaking which transferred (provision of security services at a magistrates' court). Mr Bademosi had worked on another site for many years, but had been transferred temporarily to the magistrates' court for a period of one year. The TUPE transfer occurred a few weeks before he was due to return to the other site.
The EAT upheld the tribunal's decision that Mr Bademosi was not assigned to the magistrates court - and therefore did not transfer under TUPE - because his assignment to the magistrates court was as a temporary placing. It was not appropriate to look at where he worked immediately before the transfer (i.e. the magistrates court); rather, the wider circumstances should be examined to determine whether he was truly assigned to the magistrates court contract - and he was not.
Bolch v Chipman (Burton P., 19th May 2003)
This decision provides guidance on when a tribunal should (and should not) strike out one side's case/pleading on grounds of unreasonable behaviour under rule 15(2)(d) of the 2001 Rules. The primary point is that unreasonable conduct does not, of itself, mean a case should be struck out; rather, there has to be EITHER contumelious default OR no prospect of a fair trial. Tribunals should always consider sanctions short of striking out, for example, allowing the defaulting side to attend for a limited purpose (such as a remedies hearing, or testing the evidence of the other side).
The relevant paragraph of the judgment is paragraph 55.
Kear v Neural Technologies (HHJ Levy, 2nd June 2003)
Another case on unreasonable conduct; this time relating to costs in the EAT rather than striking out a pleading.
A litigant in person accused the solicitor on the other side of various improper actions, such as "colossal incompetence and corruption", that he had "fabricated" an EAT precedent, and that "you are not fit to practice law."
The EAT held that this was unreasonable conduct in conducting the proceedings, and awarded costs of (sadly only) £300, which was a broad reflection of the additional expense the solicitor had been put to.
Securiplan v Bademosi (HHJ McMullen, 9th May 2003)
A TUPE case, dealing with the issue of whether an employee was assigned to the part of the undertaking which transferred (provision of security services at a magistrates' court). Mr Bademosi had worked on another site for many years, but had been transferred temporarily to the magistrates' court for a period of one year. The TUPE transfer occurred a few weeks before he was due to return to the other site.
The EAT upheld the tribunal's decision that Mr Bademosi was not assigned to the magistrates court - and therefore did not transfer under TUPE - because his assignment to the magistrates court was as a temporary placing. It was not appropriate to look at where he worked immediately before the transfer (i.e. the magistrates court); rather, the wider circumstances should be examined to determine whether he was truly assigned to the magistrates court contract - and he was not.
Bolch v Chipman (Burton P., 19th May 2003)
This decision provides guidance on when a tribunal should (and should not) strike out one side's case/pleading on grounds of unreasonable behaviour under rule 15(2)(d) of the 2001 Rules. The primary point is that unreasonable conduct does not, of itself, mean a case should be struck out; rather, there has to be EITHER contumelious default OR no prospect of a fair trial. Tribunals should always consider sanctions short of striking out, for example, allowing the defaulting side to attend for a limited purpose (such as a remedies hearing, or testing the evidence of the other side).
The relevant paragraph of the judgment is paragraph 55.
Kear v Neural Technologies (HHJ Levy, 2nd June 2003)
Another case on unreasonable conduct; this time relating to costs in the EAT rather than striking out a pleading.
A litigant in person accused the solicitor on the other side of various improper actions, such as "colossal incompetence and corruption", that he had "fabricated" an EAT precedent, and that "you are not fit to practice law."
The EAT held that this was unreasonable conduct in conducting the proceedings, and awarded costs of (sadly only) £300, which was a broad reflection of the additional expense the solicitor had been put to.
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