Important: Acas revises conciliation policy

Acas has announced an important change to its policy on conciliation.

Until October 2004, Acas had a duty to offer conciliation in nearly all tribunal claims. In October 2004, the Employment Act 2002 introduced fixed conciliation periods; this limited Acas's duty to conciliate to a fixed, limited period (after which it had a power to conciliate which, in accordance with parliament's intention, it only exercised in very limited circumstances).

Acas has now announced that, in the light of the government's intention to abolish fixed periods of conciliation, it will (from tomorrow) exercise its power to conciliate in all cases, irrespective of whether the fixed period for conciliation has expired.

Costs in Employment Tribunals

The EAT has handed down a decision considering the correct approach to take when assessing costs against a litigant.

In Jilley v Birmingham & Solihull Mental NHS Trust, the tribunal made costs orders against the Claimant, and referred the assessment to a county court. The potential costs liability was substantial.

Remitting the question of costs to the tribunal, the EAT stated that:-

• it is incumbent on a tribunal to consider whether it is going to take the paying party's financial means into account. It is not good enough to delegate that task to the county court (paras. 44 and 46);
• a useful option to consider for the tribunal, when referring costs to the county court for assessment, is to place a cap on an award to reflect the paying party's ability to pay (para. 47).

Boring but important: New Tax Provisions

HMRC has laid the The Income Tax (Pay As You Earn) (Amendment) Regulations 2008 before Parliament.

The Regulations close the loophole identified in Demibourne Ltd v HMRC (see bulletin 15/8/06), which held that HMRC was entitled to charge an employer full tax and NI under the PAYE regulations, where the parties have wrongly viewed the employee as self-employed, without giving credit for the tax and national insurance already paid directly by the 'employee'. In other words, under this loophole, HMRC could charge tax twice!

Well, the loophole is closed. The Regulations come into force on 6th April 2008.

The Regulations also tidy up the PAYE Regulations, given the abolition of the starting-rate of income tax.

EAT Time Limits

The Court of Appeal has considered the EAT's strict adherence to the 42-day time limit for instituting an appeal.

As all employment practitioners know, the EAT requires certain documents to be attached to the Notice of Appeal. If any document is missing, the appeal is invalid. In this case, Jurkowska v Hlmad Ltd, one of the documents was omitted in very unusual circumstances, and was lodged 33 minutes after the 4pm deadline.

The Court of Appeal upheld Underhill J.'s decision to extend time for instituting the appeal. Whilst confirming that the strict approach in United Arab Emirates v Abdelghafar remained good law, the three Court of Appeal judges took different views as to certain aspects of that judgment and to EAT practice / procedure:

• Rimer LJ considered that an extension of time might, in exceptional circumstances, be granted even if the Appellant has no 'good reason' for the delay (which is a mandatory requirement under Abdelghafar (para. 19)
• Hooper LJ was doubtful about the comments in Abdelghafar to the effect that a lack of prejudice to the Respondent is immaterial (para. 60)
• Sedley LJ did not think that any changes should be made to the Abdelghafar test (para. 71), although he showed some tentative leaning towards Rimer LJ's views

Update: Employment Bill 2008

The Employment Bill has had its third day in committee in the House of Lords (see Hansard). Discussion included:

• tightening up minimum wage enforcement (proposals agreed);
• broadening the type of expenses that can be reimbursed to voluntary workers without triggering eligibility for the minimum wage (proposal agreed);
• making the NMW apply to all mariners when within UK territorial waters and to all mariners on UK registered ships whereever they may be working (proposal withdrawn after discussion);
• increasing fines for employment agencies who charge fees to job seekers when not allowed, and imposing a new duty to protect welfare of temps (proposals withdrawn after discussion);
• trade union exclusion/expulsion following the ASLEF ase (cl 17) - (proposals withdrawn after discussion)

Thanks to www.emplaw.co.uk for their permission to reproduce this item.

Age Regulations Amended

The government has published The Employment Equality (Age) Regulations 2006 (Amendment) Regulations 2008, which come into force on 6th April 2008.

The changes are relatively minor, dealing with:

• issues relating to continuity of service for the service-related benefit exception; and,
• closing a loophole under the Regulations in connection with time limits (the original Regulations did not provide properly for the three month extensions of time under the dispute resolution regulations).

Discrimination Questionnaires

The EAT has, this morning, handed down the important decision of D'Silva v NATFHE. It reminds practitioners that a failure by an employer to respond to a discrimination questionnaire (or an equivocal / evasive response) does not - without more - automatically raise a presumption of discrimination.

Underhill J states that there will often be good reasons why questionnaires have not been answered (or documents not disclosed), or that the failure will have no bearing on whether an act of discrimination took place. In such cases, "time and money should not be spent pursuing the point" (para. 38).

Employment Tribunal Judgments on internet delayed

According to Monday's Hansard, the Tribunals Service is putting back its proposals to provide Employment Tribunal judgments on the internet. It will not happen until Caseflow (the computerised ET case management system) is developed and rolled out across the regional ET offices. Caseflow is to be piloted in autumn 2008. National rollout will depend on the results of the pilot.

Amongst other things, once judgments are available on the internet, it will make it easier for Claimants to identify Respondents with a track record of discrimination or unreasonable practices (relevant to the statutory defence for discrimination, or the amount of the compensation uplift under the Employment Act 2002). On the downside for Claimants, it may enable Respondents to identify (and avoid recruiting) those who have previously brought a tribunal claim.

[Thanks to www.emplaw.co.uk for this information]

Victimisation in Litigation

The EAT has handed down a judgment considering the conflicting policies of allowing litigators to fight cases sensibly, and the importance of not victimising someone who brings a discrimination claim.

Mrs Dathi claimed discrimination. Her employer refused to disclose certain documents during the litigation. Mrs Dathi claimed that the letter in which the Respondent refused to disclose those documents amounted to an act of victimisation. She also contended that a robust letter resisting her application for costs was a further act of victimisation. The Respondent claimed both letters enjoyed absolute immunity, being produced for the purpose of litigation.

The EAT (HHJ McMullen QC) held that both letters came into existence for the purpose of litigation and attracted absolute immunity. Even if they did not, they would have amounted to honest and reasonable communications between representatives for the purpose of preparing for a trial, which would be a defence to a victimisation claim (see paras. 27-28).

South London & Maudsley NHS Trust v Dathi

Unilateral Variations of Contract

The EAT has handed down a decision reaffirming the options an employee has when an empoyer seeks to foist a unilateral variation of contract on him. The four choices (para. 20) are:-

• acquiescing in the variation;
• resign and claim constructive dismissal;
• refuse to work under the new terms, and force the employer to take what steps it thinks appropriate; or,
• stand and sue, by working under protest and seeking damages (either for breach, or for unfair dismissal).

In this case, the employee agreed to the changes 'under protest' but then refused to work under the new terms. The EAT held that the decision to dismiss him was fair as, having agreed (alebit under protest), he could not renege on his agreement - therefore he was refusing to obey lawful and reasonable instructions.

Robinson v Tescom Corporation

Minimum Wage Increase

The government has, today, announced the annual increase to the minimum wage. The adult rate will rise from £5.52 to £5.73. The rate for 18-21 year olds will also increase from £4.60 to £4.77, while the 16-17 year old rate will rise from £3.40 to £3.53.

All increases will take effect on 1st October 2008. See BERR Press Release for more details.

Strikes: Deducting a day's wage

The High Court has considered, in Cooper v Isle of Wight College, how much pay an employer can deduct from a worker's wage packet when that worker is on strike.

Blake J. held that the employer can only deduct the amount that an employee could recover in an unlawful deductions claim (which, for someone working a 260-day year, is 1/260th of salary). The employer cannot go further, and deduct the actual loss to the business (such as the pro rata element of holiday pay entitlement).

Strikes: Deducting a day's wage

The High Court has considered, in Cooper v Isle of Wight College, how much pay an employer can deduct from a worker's wage packet when that worker is on strike.

Blake J. held that the employer can only deduct the amount that an employee could recover in an unlawful deductions claim (which, for someone working a 260-day year, is 1/260th of salary). The employer cannot go further, and deduct the actual loss to the business (such as the pro rata element of holiday pay entitlement).