New Age Positive Guidance Notes

Age Positive, the organisation set up by the Department of Work and Pensions, has issued a series of guidance notes entitled 'The Facts, not the Myths'.

Without wanting to be dismissive of the others, the two which are worth looking at:

• Insurance and age in the workplace - the facts, not the myths; and,
• Age, health and employability - the facts, not the myths"

The full list can be seen on their news page.

Of course, the best guide to age discrimination (at least, in my humble opinion) remains my 170-page analysis notes on age discrimination.

Smoking Ban - Draft Regs

Fancy a cigarette? It'll cost you £50...

The draft Smoke-Free (General Provisions) Regulations have been published for consultation by the Department of Health. The consultation period expires on 9th October 2006.

In a nutshell...

• all work premises are to be 'smoke-free' if enclosed or "substantially enclosed" - defined as meaning premises with a ceiling unless more than 50% of the 'wall' area is open to outside.
• all employers (or, more accuately, occupiers of the premises) must display a prominent 'No Smoking' sign. The sign must be of at least A5 size and contain the 'No Smoking' logo, together with the words "No Smoking. It is against the law to smoke in these premises except in a designated room."
• company cars are deemed to be entirely non-smoking if they might be used by more than one person, unless it is a convertible car and the roof is open
• there is an exemption for bedrooms in residential accommodation
• there is no exemption allowing employers to have designated 'smoking rooms'
• an employer who fails to display a prominent 'No Smoking' sign is subject to a fixed penalty of £200 (discounted to £150 if paid within 15 days). If unpaid (or the fixed penalty notice is challenged), a fine of up to £1,000 (and a criminal record) may be levied
• an employee (or visitor) who is caught smoking is subject to a fixed penalty of £50 (discounted to £30 if paid within 15 days). If unpaid (or the fixed penalty notice is challenged), a fine of up to £200 (and a criminal record) may be levied
• an employer who fails to take reasonable steps to prevent smoking (and displaying the 'No Smoking' sign is not enough) is liable to a fine of up to £2,500. There is no fixed penalty alternative.

View consultation paper here (large .pdf file - takes about 30 seconds to download on broadband)

Reinstating Withdrawn Claims

The Court of Appeal has upheld the EAT's judgment in Khan v Heywood & Middleton Primary Care Trust (see bulletin dated 25/1/06). The case deals with the "lamentable" (para.78) drafting of rule 25 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004.

The case is authority for the proposition that:

• if a Claimant sends a Notice of Withdrawal to the tribunal, the claim is at an end and the tribunal has no power to reinstate the claim at a later date (despite the wording of rule 25(4));
• if the Respondent subsequently applies (successfully) for the withdrawn claim to be formally dismissed, then the Claimant cannot bring a fresh claim based upon the same or similar facts. If the Respondent fails to secure the formal dismissal of the withdrawn claim, the Claimant is free to issue a fresh claim (subject to limitation issues) based upon the same or similar facts.

It's a complicated judgment. Read it here...

Khan v Heywood & Middleton Primary Care Trust

Statutory Grievance / Tribunal Procedure

The EAT has handed down a decision dealing with an interesting little problem arising from the statutory grievance procedures.

The Claimant brought three discrimination claims to which the statutory grievance procedure applied. In respect of claim 1, she had waited the mandatory 28 days after submitting a step 1 grievance letter before presenting her claim. In respect of claims 2 and 3, the employer had completed its internal grievance procedure and she therefore presented her claims before the 28 day window had elapsed.

The tribunal heard all three claims, stating it would reach a decision on its jurisdiction to hear claims 2 and 3 as part of its substantive decision. It told the parties that if it found it lacked jurisdiction, it would simply express preliminary conclusions on claims 2 and 3. The Claimant would then be able to re-present those claims, as she was still within the extended limitation period.

In the event, the tribunal found in her favour but found it lacked jurisdiction. She presented fresh claims. By agreement, the evidence at the first hearing was allowed to stand as evidence at the second hearing. However, the tribunal refused to allow the employer to adduce further evidence at the second hearing, on the basis that the overriding objective meant the employer should not have a second bite at the cherry. Unsurprisingly, it found in favour of the employee.

The EAT (Elias P. presiding) held that the tribunal was wrong to refuse to allow the employer to adduce further evidence. It held (para. 30) that the employer is entitled to adduce evidence before a tribunal which has jurisdiction to hear the claim.

Interestingly, the EAT was critical of the existence of the 28-day period when an employee cannot present a tribunal claim - particularly in circumstances such as this where the parties had been through the internal grievance procedure within that period, where the bar on an employee bringing a claim was said to be "most unsatisfactory" (para. 29).

Exel Management Ltd v Lumb

Working Time / A "Weeks Pay"

The EAT has handed down a decision dealing with the complicated question of what does (and does not) fall within the category where "the employee's remuneration for employment in normal working hours...does vary with the amount of work done in the period". Readers will be aware that, under s221 of the Employment Rights Act 1996, a 'week's pay' is averaged over 12 weeks when the remuneration varies as above but not (normally) otherwise.

A problem has always occurred where workers are paid commission. Does their remuneration vary depending on work done? This is not straightforward, particularly if their working hours and activities do not change, and the question of whether they secured the 'deal' (and hence the commission) is dependent on luck or external factors.

The EAT (Elias P. presiding) held that where pay is related to output, and output is in turn significantly connected with the level of performance, then it can properly be said that pay varies with the work done. Thus in a typical 'productivity' scheme, where remuneration varies depending on output, a week's pay should be calculated by averaging over 12 weeks and not simply pitching remuneration levels at a specific, frozen, single week.

May Gurney Ltd. v Adshead (& 95 others)

ACAS Annual Report

Acas has today published its 106-page annual report 2005/06.

Key statistics include:

• the Acas helpline answered 908,553 calls, compared to 880,787 last year
• Acas intervention has avoided 73% of potential hearing days (86% if including claims which had been intimated but not presented to the tribunal)
• the Acas website received 1.7 million visits. The most frequently viewed pages are A-Z of work and Rights at Work
• it delivered 2,964 good practice training sessions to over 40,000 delegates
• there were 109,712 applications to tribunals compared to 81,833 last year (an increase of 25%). Unfair dismissal continues to be the largest category of complaint with 35,944 applications.
• the number of requests for Acas to intervene in employment disputes and conciliate between the two sides fell slightly from 1,123 last year to 952 this year. The issue of pay continues to be the single biggest category.

Acas Annual Report 2005/06 (.pdf file, 1Mb)

Working while asleep

The EAT has held, in Anderson v Jarvis Hotels, that a hotel night manager was entitled to be paid for work even when fast asleep.

The manager brought a claim for unpaid contractual wages (note: not under the Working Time Regulations) in respect of a nine month period when he was required to sleep at the hotel overnight. His presence was required in case of emergency (such as fire or flood), and in the nine months, he had only ever been required to work on one occasion (to deal with rowdy guests). On one other occasion he had left the hotel for half an hour, between 3.30am and 4am, and had received a verbal warning as a result.

The hotel argued that 'on call' time, where the risk of actually being required to do something was insignificant, should not be regarded as working time for the purpose of being paid under the contract of employment.

The EAT disagreed, overturning the employment tribunal. It held that time during which the manager was contractually obliged to be present at the hotel was plainly working time, and he was entitled to be paid in respect of it.

Anderson v Jarvis Hotels

Strike Outs

Yet another EAT judgment overturning a chairman's decision to strike out a claim ...

This case is authority for the proposition that a chairman is under an obligation to consider an adjournment (as an alternative to strike-out), even if the parties do not raise the possibility of an adjournment themselves.

All six Claimants were in breach of an order to exchange witness statements two weeks before the hearing (the strike-out application was heard one week before the hearing). Further, three of the six Claimants had failed to comply with an order that they provide a Schedule of Loss (the other three had provided a Schedule, but done so later than the date specified in the Order).

The chairman held that it was not possible to hold a fair trial the following week and struck out the claims. Neither side had raised the possibility of an adjournment.

The EAT (Cox J.) held that it was incumbent on the chairman to consider an adjournment, and to canvass the possibility of adjourning with the parties. It was an error of law to consider only "a fixed moment of fairness" (para. 23). She allowed the appeal and reinstated the claims.

Ridsill v Smith & Nephew Medical

Vicarious Liability: Protection from Harassment

Last week the House of Lords handed down its decision in Majrowski v Guy's & St Thomas' NHS Trust (see bulletin 16/3/05 for the Court of Appeal's decision).

The House of Lords upheld the Court of Appeal's decision, stating:

• an employer's vicarious liability arises under statute unless the statutory provision excludes such liability. In other words, vicarious liability is not limited only to common-law wrongs of employees, but extends to their breaches of statutory duty
• although the construction is finely balanced, parliament did not intend the Protection from Harassment Act 1997 to be an exception to that rule.

Thus employees (and ex-employees) can now bring claims against employers for damages if they are subjected to a course of conduct (meaning at least two incidents) amounting to harassment.

The advantages to an employee (and, concomitantly, disadvantages to an employer of bringing a harassment claim against the employer in the civil courts are:

• deeper pockets - the damages award can probably be met, unlike if the remedy exists only against the individual
• more grounds on which to establish harassment - not just sex, race, sexual orientation, age etc..
• the statutory defence (i.e. that the employer took all reasonable steps to avoid the harassment) is not available to employers. Lord Nicholls described this as "a discordant and unsatisfactory overlap" between the different pieces of legislation (para. 39)
• a six year, rather than a three or six month (depending on whether statutory grievance procedure applies) time limit applies
• unlike in the employment tribunals, costs are normally recoverable
• subject to means (and finding a lawyer who will take on the case!), legal aid is available

Majrowski v Guy's & St Thomas' NHS Trust

Fixed Term Contracts

A quick reminder that next week (10th July) sees the fourth anniversary of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The significance of this anniversary is that, under regulation 8, any employee who has been on a fixed-term contract (or a series of fixed-term contracts) for four years becomes, as if by magic, a permanent employee. There is an objective justification exception, if the employer can objectively justify the fixed-term nature of the contract at the date of the last renewal.

In practical terms, nothing really turns on this (since expiry of a fixed-term contract is just as much a dismissal, for employment law purposes, as a straight sacking). There is one little point of interest, though...

Technically, the employer must (within one month of the fourth anniversary) give the employee a statement of changes to his terms and conditions of employment - so as to provide information as to the length of the relevant notice periods rather than the date of expiry under a fixed term contract (ERA 1996, ss1(4)(e) and (g)). Failure to do so can result in an award of two or four weeks' pay (Employment Act 2002, s38).

High Court Challenge to Age Regulations

Heyday, an organisation created by and closely associated with Age Concern, has issued a judicial review application in the High Court challenging the legality of the Employment Equality (Age) Regulations 2006.

According to their press release, the challenge is based upon the argument that the 2006 Regulations fail to implement the EU Equal Treatment Framework Directive, since the Regulations effectively exclude people over 65 from having a right to work.

Watch this space...