Bonuses on Maternity Leave

A statutory instrument bringing further sections of the Employment Relations Act 2004 has just been made. The sections come into force on 6th April 2005.

The sections coming into force are (in summary):

Union Recognition

• clarifying how the 'appropriate bargaining unit' is to be determined by the CAC;
• providing for a suitable person to handle communications between the union and the bargaining unit;
• provision for postal voting for workers away from the workplace;
• confirmation that 'pay', for collective bargaining purposes, does not include pensions;
• provisions to speed up the recognition or derecognition process;
• provisions empowering Acas to require information from the parties where it is asked to settle a dispute

Industrial Action

• extending the 'protected period' for lawful official action from eight weeks to twelve weeks;
• new mandatory matters to which a tribunal must have regard when deciding whether an employer has taken reasonable steps to resolve a dispute with the union.

Miscellaneous

• a right for employees not to be dismissed or subjected to a detriment because of being summoned for jury duty;
• amendments to procedures relation to the exercise of functions by the Certification Officer

The Employment Relations Act 2004 (Commencement No.3 and Transitional Provisions) Order 2005 (SI 2005/872)

Employment Relations Act 2004 - Further Commencement Provisions

A statutory instrument bringing further sections of the Employment Relations Act 2004 has just been made. The sections come into force on 6th April 2005.

The sections coming into force are (in summary):

Union Recognition

• clarifying how the 'appropriate bargaining unit' is to be determined by the CAC;
• providing for a suitable person to handle communications between the union and the bargaining unit;
• provision for postal voting for workers away from the workplace;
• confirmation that 'pay', for collective bargaining purposes, does not include pensions;
• provisions to speed up the recognition or derecognition process;
• provisions empowering Acas to require information from the parties where it is asked to settle a dispute

Industrial Action

• extending the 'protected period' for lawful official action from eight weeks to twelve weeks;
• new mandatory matters to which a tribunal must have regard when deciding whether an employer has taken reasonable steps to resolve a dispute with the union.

Miscellaneous

• a right for employees not to be dismissed or subjected to a detriment because of being summoned for jury duty;
• amendments to procedures relation to the exercise of functions by the Certification Officer

The Employment Relations Act 2004 (Commencement No.3 and Transitional Provisions) Order 2005 (SI 2005/872)

Employment Statutes not contractually actionable

The Employment Appeal Tribunal has delivered a powerful judgment demolishing an argument that the rights given to employees under employment statutes can also form the basis of a contractual claim (enabling employees to claim constructive dismissal whenever a statutory right is infringed).

Presiding over the Appeal Tribunal, HHJ McMullen held:

"25. The first issue in the claim...is that there is, as a matter of contract, a right which corresponds in language to the three statutory rights protective trade unionists when they carry out trade union activities. The right of action in contract is not arrived at by reason of any of the conventional tools, such as necessity, business efficacy to make the contract workable or to reflect the intentions of the parties. On the contrary, it is there because the statute provides such a right. In an engaging exchange with the bench, [Counsel] said "as a matter of logic, it must be right. There is no authority on this point" In an equally engaging exchange, Mr Bowers said it must be wrong.

"26. Let us just paint a picture of how this would work if [Counsel] were right. Today, across the road in the Strand, there would be sitting half a dozen courts presided over by judges of the Queen's Bench, determining, for example, whether an employee of a London borough had been discriminated against on grounds of his or her race. Some of these claims would be very old, because the time limit would be not three months but six years. The expertise in deadling with these matters, which is presently in the hands of employment tribunals...would be missing... So would the informal and user-friendly regime in which such claims are heard presently by employment tribunal. Any breach of the Race Relations Act 1976, on this thesis, would be actionable as a breach of contract. There would, of course, be the issue of costs. In a case where there had been racial harassment, one person missing from the drama would be the very perpetrator, since, whereas in an employment t! ribunal such person can be brought in as an aider and abetter, in a breach of contract claim this person would be absent.

"27. That is just a brief snapshot as to why [Counsel's] proposition is wholly misconceived in our judgment. It cannot be right that, as she puts it, the range of rights set out in Professor Peter Walltington's estimable handbook, which takes pride of place on our bench, constitutes a contractual rulebook, actionable at the suit of an employee for every single breach that there is."

HHJ McMullen goes on to make it clear that there are a few exceptions where statutes do lead to the implication of contractual terms.

Doherty v British Midland Airways, EAT 2005

[Thanks to John Bowers QC of Littleton Chambers, who represented British Midland, for informing me of this decision]

ACAS Booklet - Representation at Work

Acas has revised and updated its advisory booklet, 'Representation at Work'. It covers the following topics:

• representation of individuals with personal issues;
• consultation;
• Works Councils;
• collective bargaining;
• workforce agreements;
• joint working groups.

As with all Acas guides, it is a clear, well-written and helpful document.

ACAS Revised Booklet

Important Case on Applications to Amend Notices of Appeal to the EAT

The Employment Appeal Tribunal has, in Khudados v Leggatte & ors, set out the principles to be adopted when it considers an application for permission to amend a Notice of Appeal.

Ms Khudados, a registrar whose career as a nuerosurgeon was not progessing as quickly as she would like, brought and lost a complex sex and race discrimination claim. She presented a Notice of Appeal which contained various clear and self-contained grounds. After the appeal was listed for a preliminary hearing, the Appellant wrote to the Registrar and 'reserved the right' to make amendments to the Notice of Appeal.

The draft amended Notice of Appeal was served four and a half months after the original Notice of Appeal was lodged. It contained 26 new pages containing new allegations of perversity. The effect of the new allegations was to require detailed consideration of the several weeks of testimony, and five lever-arch files of documentation, which had been before the employment tribunal.

At the hearing of the application for permission to amend, the delay was explained on the basis of the extreme complexity of the case (Ms Khudados had represented herself before the employment tribunal and needed to provide detailed explanations to her legal team as to why she was claiming perversity on so many grounds), coupled with the inevitable delay caused by other professional commitments of Counsel involved.

In a very thorough and robust decision, the EAT (HHJ Serota presiding) refused permission to amend and set out the principles the EAT should adopt. They include, at paragraphs 82-87:

• the Practice direction requires applications to amend to be made as soon as the need for amendment is known. This is not an aspiration - it is a requirement. Parties cannot 'reserve' a right to amend;
• the EAT's approach to dealing with time limits on appeals is stricter than that of the Court of Appeal; the EAT has now reduced the average waiting time between presentation of a Notice of Appeal and a final hearing, where no preliminary hearing is required, to between two and three months;
• the EAT takes a strict view of anything that might delay a final hearing, particularly where there has been non-compliance with a rule of the Practice Direction. A crisp point of law related to existing grounds of appeal is more likely to be permitted than wholly new grounds of perversity which raise complex issues of fact;
• the regime in the EAT is still largely 'costs-free', unlike in the Court of Appeal where the Court can compensate a party for delay and cost caused by the other side;
• the merits of the proposed amendments are relevant, in that they must pass a 'reasonable prospect of success' threshold;
• an extension of time is an indulgence.

The EAT specifically rejected the submission that the overriding objective requires a party to be allowed to ventilate any good ground of appeal he may wish to bring.

Khudados v Leggatte & ors.

Working Parents

Acas has just issued its sixth e-Learning Guide, this time on Working Parents.

The course covers:

• Maternity rights and pay
• Paternity leave and pay
• Adoption leave and pay
• Parental leave
• Time off to help dependants and
• The right to request flexible working

You need to register (free of charge) to access the guides.

Acas E-Learning Guides

Vicarious Liability

The Court of Appeal has handed down its judgment in Majrowski v Guy's & St Thomas's NHS Trust, an important case dealing with principles of vicarious liability both generally (for breach of any statutory duty) and in connection with breaches of the Protection from Harassment Act 1997.

General Principle
The Court of Appeal held, unanimously, that employers can be vicariously liable for breaches of statutory duty as well as breaches of common law obligations (subject to the wording of any given statute).

Surprisingly, this point had not been determined in any previous case in England (although dicta in cases such as Lister v Hesley Hall had suggested as such, and there was also a Scottish authority to this effect).

Protection from Harassment Act 1997
The Court of Appeal went on to hold, this time by a majority, that there was nothing in the wording or policy of the Protection from Harassment Act 1997 that prevented an employer being vicariously liable for harassment by its employees, as long as there was a sufficiently close connection with employment.

Implications
This decision means that an employee can sue a (solvent) employer for damages for harassment by a co-worker. 'Harassment' is not clearly defined in the Act, but probably includes workplace bullying or a series of unreasonable instructions.

Thus the employee has a cause of action against the employer which s/he might not previously have had - particularly if the employee has not suffered personal injury, or has suffered personal injury but cannot establish the strict foreseeability test laid down in Sutherland v Hatton and Barber v Somerset County Council, as Claimants are expressly permitted to recover damages for anxiety caused by the harassment under the 1997 Act.

Majrowski v Guy's & St Thomas's NHS Trust

DTI launches consultation on Code of Practice

The DTI has, today, issued a consultation paper on proposed revisions to the Code of Practice on Industrial Action Ballots and Notice to Employers.

The consultation document includes proposals to :

• ensure that the Code reflects the changes to industrial action law which are contained within the Employment Relations Act 2004;
• provide new guidance for unions and employers relating to the information that unions are required to give employers in advance of industrial action ballots and in advance of any subsequent industrial action.

The consultation runs for twelve weeks, ending on 3 June 2005.

DTI Consultation Paper (requires Adobe Acrobat - takes up to 30 seconds to load in)

Interest on Unfair Dismissal Awards

The Employment Appeal Tribunal (Burton P. presiding) has stated that it is legitimate to award interest (as long as it is not described as that) for unfair dismissal.

The accepted position for many years has been that, unlike in discrimination cases, interest is not recoverable for unfair dismissal.

However, the EAT has now held that when assessing such compensation as is 'just and equitable', since tribunals would give discounts for accelerated receipt at 2.5%, it is equally legitimate to give an increase for decelerated receipt at 2.5%.

Burton P. emphasised this was not, technically, interest - although the effect is much the same.

Although it was not an issue that required deciding, it must be that the 'uplift for decelerated payment' element is still subject to the £56,800 statutory cap (i.e. Claimant's do not get £56,800 plus an uplift).

Melia v Magna Kansei

Tackling discrimination and promoting equality - good practice guide for employers

Acas has revised its excellent advisory booklet, 'Tackling discrimination and promoting equality - good practice guide for employers'.

The booklet contains a sample equality policy for those who like to cut and paste, and really helpful checklists on how to avoid discrimination. This is very much a practical guide, not merely a recitation of the law.

ACAS: Tackling Discrimination and promoting Equality

London (Central) is closing down (2)

Whoops! Sorry, that should be 'Victory House', not 'Victoria House'. And an excellent name it is too.

So...

From 18th April 2005, London (Central) employment tribunal will be sitting at:

Victory House
30-34 Kingsway
London WC2B 6EX
DX: 141420 Bloomsbury 7

Telephone and fax numbers remain the same.

London (Central) is closing down (1)

... or at least, moving half a mile down the road.

From 18th April 2005, London (Central) employment tribunal will be sitting at:

Victoria House
30-34 Kingsway
London WC2B 6EX
DX: 141420 Bloomsbury 7

Telephone and fax numbers remain the same.

Money Laundering

The Court of Appeal has handed down its crucial judgment in Bowman v Fels, on the controversial issue of the extent to which the Proceeds of Crime Act 2002 prohibits solicitors and barristers from engaging in litigation where they suspect the client (or the other side) of dealing with the proceeds of crime without first notifying NCIS.

This is of importance to all lawyers, and has particular relevance to employment lawyers when dealing with (arguable) illegality points or litigation over tax issues.

The Court of Appeal has held:

• the Act is not intended to cover the ordinary conduct of litigation by legal professionals, including any step taken in litigation from the issue of proceedings and the securing of injunctive relief through to final disposal by judgment (para. 83)
• the Act does not override legal professional privilege. If information is the subject of legal professional privilege, there is no obligation to disclose it to NCIS (paras. 83-89)
• likewise, the Act does not override the obligation to keep confidential documents disclosed through the disclosure process (para. 90)
• nor does it cover consensual settlements within litigation (para 99). But is does cover consensual arrangements independent of litigation (para. 101).

Bowman v Fels

Employment Law Bulletin

This short, but important, point has been considered by the EAT in Dattani v Chief Constanble of West Mercia Police.

The EAT held that evasive, incorrect, or nil replies to questions asked in a race discrimination case can lead to drawing an inference of discrimination under s65 of the Race Relations Act 1976, even if the questions were not asked under the statutory procedure.

This conclusion was reached on two grounds. First, construction of s65, which refers to questions posed by an aggrieved person "whether in accordance with an Order under sub-section (1) or not" (that being the subsection enabling the Secretaty of State to prescribe forms for the questionnaire) - see para. 43.

Second, on policy grounds. The EAT held that "a respondent, asked a direct question in writing by an aggrieved person, who fails to respond, or does so evasively, ought to be treated in the same way irrespective of whether a question has been asked under the statutory procedure." (para. 44)

This may have an adverse impact on employers who are unfamiliar with the legal process, as a statutory questionnaire contains an express warning that evasive or equivocal replies can lead to the drawing of an adverse inference, so the employer is put on notice. A question in a letter is unlikely to contain such a warning. Having said that, this is undoubtedly the correct result bearing in mind that s65 was drafted long before the reversal of the burden of proof, and the reversal of the burden of proof means that every inconsistency by an employer is liable to be seized upon by an employee as grounds for drawing adverse inferences.

Dattani v Chief Constable of West Mercia Police