Further provisions of the Employment Relations Act 2004 come into force today (31st December). These provisions allow trade unions to expel members who have extreme political views which conflict with the rules or objectives of the union.
Also coming into force today are changes giving tribunals greater discretion for setting compensation where an exlcusion or expulsion is unlawful.
Employment Relations Act 2004
Friday, 31 December 2004
Thursday, 16 December 2004
EAT Conciliation Protocol
The EAT Conciliation Protocol has now been placed on the EAT website (see bulletin 10/12/04, below). At the time of writing, the 2004 Practice Direction, which came into force last week, is still awaited.
EAT Conciliation Protocol
---------------------------------------------------
BULLETIN 10 / 12 / 04
New EAT Practice Direction
-----------------------------
Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals
---------------------------------------
Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
EAT Conciliation Protocol
---------------------------------------------------
BULLETIN 10 / 12 / 04
New EAT Practice Direction
-----------------------------
Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals
---------------------------------------
Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
Consulation on Definition of Disability
The Disability Discrimination Bill is currently undergoing its second reading in the House of Lords (see bulletin 6/12/04).
Whilst the Bill is mainly concerned with matters relating to issues outside the employment relationship, it involves an extension to the definition of disability to automatically cover some people with cancer, HIV and multiple sclerosis from the point of diagnosis, irrespective of whether they can establish the necessary adverse effect on their ability to carry out day-to-day activities.
The DWP has today issued a consultation paper on, amongst other things, excluding certain cancers from the scope of the extended definition. The document proposes excluding the most common cancers which are not considered to require substantial treatment and it identifies a list of the cancers to be excluded (e.g. basal cell carcinomas and Bowen's Disease);
Consultation Document (57 pages - takes a while to download)
Whilst the Bill is mainly concerned with matters relating to issues outside the employment relationship, it involves an extension to the definition of disability to automatically cover some people with cancer, HIV and multiple sclerosis from the point of diagnosis, irrespective of whether they can establish the necessary adverse effect on their ability to carry out day-to-day activities.
The DWP has today issued a consultation paper on, amongst other things, excluding certain cancers from the scope of the extended definition. The document proposes excluding the most common cancers which are not considered to require substantial treatment and it identifies a list of the cancers to be excluded (e.g. basal cell carcinomas and Bowen's Disease);
Consultation Document (57 pages - takes a while to download)
Wednesday, 15 December 2004
Rolled Up Holiday Pay 3
This old chestnut is back. In a series of conjoined appeals, under the lead case Smith v Morrisroes & Sons, the Employment Appeal Tribunal has clarified earlier guidance on rolled-up holiday pay.
The law is currently set out in the Court of Appeal's decision in Caulfields v Marshalls Clay Products (see bulletins of 4/8/03 and 6/5/04). In this new case, the Employment Appeal Tribunal recognises that the 'rolled-up' holiday pay aspect need not necessarily be set out in the written contract, as terms (such as terms rolling up holiday pay) can also be incorporated through collective agreements or, importantly, through custom and practice (see para. 11).
The amended guidelines are set out in paragraph 5 of the decision.
Note that the entire issue of whether rolled-up holiday pay is permissible under the Working Time Directive is currently the subject of a reference to the ECJ in Robinson-Steele v RF Retail Services Ltd (see bulletin 17/3/04).
Smith v AJ Morrisroes & Sons
The law is currently set out in the Court of Appeal's decision in Caulfields v Marshalls Clay Products (see bulletins of 4/8/03 and 6/5/04). In this new case, the Employment Appeal Tribunal recognises that the 'rolled-up' holiday pay aspect need not necessarily be set out in the written contract, as terms (such as terms rolling up holiday pay) can also be incorporated through collective agreements or, importantly, through custom and practice (see para. 11).
The amended guidelines are set out in paragraph 5 of the decision.
Note that the entire issue of whether rolled-up holiday pay is permissible under the Working Time Directive is currently the subject of a reference to the ECJ in Robinson-Steele v RF Retail Services Ltd (see bulletin 17/3/04).
Smith v AJ Morrisroes & Sons
Information - Commissioners Code of Practice
The Information Commissioner has just published part 4 of the Employer's Code of Practice on Data Protection.
Part 4 deals with keeping records on workers' health. It is the final part, and follows on from:
- Part 1: Recruitment and Selection
- Part 2: Employment Records
- Part 3: Monitoring at Work
The Information Commissioner has issued the main guidance (33 pages), supplementary guidance (27 pages) and Guidance for Small Businesses (6 pages).
Information Commissioner's Codes of Practice on Employment
Part 4 deals with keeping records on workers' health. It is the final part, and follows on from:
- Part 1: Recruitment and Selection
- Part 2: Employment Records
- Part 3: Monitoring at Work
The Information Commissioner has issued the main guidance (33 pages), supplementary guidance (27 pages) and Guidance for Small Businesses (6 pages).
Information Commissioner's Codes of Practice on Employment
Clementi Report issued
Nothing to do with employment law as such, but of great importance to lawyers generally...
Sir David Clementi has just published his report. It is extremely long. The key recommendations, which he urges the government to legislate upon, are:
Sir David Clementi has just published his report. It is extremely long. The key recommendations, which he urges the government to legislate upon, are:
- allowing multi-disciplinary partnerships (solicitors, barristers, accountants, management etc. all as partners)
- allowing commercial ownership of legal practices (TescoLaw). Sir David Clementi comments that "Unlike most high street solicitors, companies such as [the RAC] have nationally known brand names to protect, which may be a powerful incentive to operate in a proper manner" (Chapter F, para 22)
- a single independent body to handle all complaints, whether about barristers, solicitors or other legal service providers
- a new regulatory framework (which on the 'Model B+' basis, i.e. setting up an Oversight Regulator, the Legal Services Board, and separating regulatory from representative functions within the front-line legal bodies)
Tuesday, 14 December 2004
Age Discrimination - Retirement Proposals Published
The DTI has published its post- age discrimination retirement plans.
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Age Discrimination - Retirement Proposals Published
The DTI has published its post- age discrimination retirement plans.
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Monday, 13 December 2004
Pensions Report
The Employer TaskForce on Pensions, chaired by Sir Peter Davis, has just published its report and recommendations into the pension industry.
Note that this report was commissioned by the Department for Work and Pensions. It is a DIFFERENT report from the Pension Commission's report published a couple of months ago (see bulletin 12/10/04), in respect of which recommendations are awaited next year, and is far less controversial.
The report makes a number of recommendations to employers, employees, unions, the financial services industry and the Government.
For employers:
- To recognise they have a responsibility to help fund the pensions of their employees
- To aim to achieve over time combined contribution levels of around 10-15%, with employers ideally providing 2/3 of this
- To recognise the importance of maintaining fairness in the shift from Defined Benefit to Defined Contribution (or other) schemes
For the Government:
- To provide a stable, long term framework for UK pensions with clear guidance on who should be saving, and achieve a broad policy consensus on the way ahead
- To provide stability for medium and large employers by maintaining current levels of financial support for pensions
- To tackle the challenge of pension provision among smaller businesses by introducing a new targeted financial incentive to encourage employer contributions.
For employees:
- To take responsibility for their own pension provision and contribute to their pension schemes
- To recognise employer support for pensions as a key benefit
For unions:
- To promote awareness of the need to save for retirement among their members
- Encourage their members to join good occupational pension schemes and to make contributions
For the financial services industry:
- To work with Government to review the annuities market
- To provide better service especially to smaller businesses
The report is not yet on the internet, but should be available shortly on the Pension TaskForce's website.
Website of the Employer's TaskForce on Pensions
Note that this report was commissioned by the Department for Work and Pensions. It is a DIFFERENT report from the Pension Commission's report published a couple of months ago (see bulletin 12/10/04), in respect of which recommendations are awaited next year, and is far less controversial.
The report makes a number of recommendations to employers, employees, unions, the financial services industry and the Government.
For employers:
- To recognise they have a responsibility to help fund the pensions of their employees
- To aim to achieve over time combined contribution levels of around 10-15%, with employers ideally providing 2/3 of this
- To recognise the importance of maintaining fairness in the shift from Defined Benefit to Defined Contribution (or other) schemes
For the Government:
- To provide a stable, long term framework for UK pensions with clear guidance on who should be saving, and achieve a broad policy consensus on the way ahead
- To provide stability for medium and large employers by maintaining current levels of financial support for pensions
- To tackle the challenge of pension provision among smaller businesses by introducing a new targeted financial incentive to encourage employer contributions.
For employees:
- To take responsibility for their own pension provision and contribute to their pension schemes
- To recognise employer support for pensions as a key benefit
For unions:
- To promote awareness of the need to save for retirement among their members
- Encourage their members to join good occupational pension schemes and to make contributions
For the financial services industry:
- To work with Government to review the annuities market
- To provide better service especially to smaller businesses
The report is not yet on the internet, but should be available shortly on the Pension TaskForce's website.
Website of the Employer's TaskForce on Pensions
Friday, 10 December 2004
New EAT Practice Direction
Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals
Acas to be involved in EAT appeals Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
Thursday, 2 December 2004
Definition of Disability
The Disability Discrimination Bill has been laid before the House of Lords.
Amongst other things of no interest to employment lawyers, it amends the Disability Discrimination Act 1995 to change the meaning of 'disability' as follows:
- abolishes the need for a mental impairment to be 'clinically well-recognised'
- deems cancer, HIV and multiple sclerosis to be disabilities, irrespective of whether there are any symptoms (subject to further exempting Regulations, not yet published).
Disability Discrimination Bill
[Thanks to Simon Jeffreys of CMS Cameron McKenna for passing me this information]
Amongst other things of no interest to employment lawyers, it amends the Disability Discrimination Act 1995 to change the meaning of 'disability' as follows:
- abolishes the need for a mental impairment to be 'clinically well-recognised'
- deems cancer, HIV and multiple sclerosis to be disabilities, irrespective of whether there are any symptoms (subject to further exempting Regulations, not yet published).
Disability Discrimination Bill
[Thanks to Simon Jeffreys of CMS Cameron McKenna for passing me this information]
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