October Changes to Employment Law

Here are the main changes coming to employment law next month:

• increase in minimum wage (to £5.73 for adults)
• women on additional maternity leave become entitled to the same terms and conditions of employment as when they were on ordinary maternity leave (for babies expected after 5th October)
• changes to requirements for displaying an employer's liability insurance certificate - basically, it will become okay to make an electronic copy available rather than having a hard copy on display (see here)
• Incapacity Benefit and Income Support are replaced by Employment and Support Allowance
• amendment to the Fixed Term Employees (Prevention of Less Favourable) Treatment Regulations, removing the provision that agency workers for less than three months' duration are excluded from SSP (see here for draft Regs)

for new applicants who are claiming on incapacity grounds

Age Discrimination - AG issues opinion in Heyday

The Advocate-General has handed down his opinion in The Heyday Appeal. He recommends that the ECJ dismiss Age Concern's challenges to the lawfulness of regulations 3 and 30 of the Employment Equality (Age Discrimination) Regulations 2006.The opinion is here, and a BBC news summary is here.The two key recommendations are that the Court holds:-

• that it is legitimate to allow a general justification defence, and that it is not necessary for the Regulations to define specific categories of conduct which can be justified (see paras. 56 and 57); and,
• that regulation 30 (which permits employers to dismiss employees aged 65 or over if the reason for dismissal is retirement) is not incompatible with the Equal Treatment Framework Directive provided the regulation is objectively justified within the context of national law.

So the question of whether a lawful retirement age of 65 is lawful is still very much a live issue for determination by the national courts.

EAT Procedure - Rule 3 (10) applications

The Employment Appeal Tribunal, in a judgment delivered by HHJ McMullen QC (here), has issued a robust reminder to practitioners about how the rule 3 sifting process works. It's worth reading - particularly for the cutting comments about the use of Latin in courts at paragraphs 23 and 24.

Employment Status of Directors / Majority Shareholders of a Company

The President of the Employment Tribunals, HHJ Meeran QC, has issued a Practice Direction staying all claims which involve the question of when a director and majority shareholder of a company qualifies as an employee of that company.

These claims will all be stayed until after the Court of Appeal gives judgment on this issue (in Secretary of State for Business, Enterprise and Regulatory Reform v Neufeld). The Court of Appeal hearing is currently listed for hearing on 3rd and 4th December 2008.

The Practice Direction requires it to be posted on www.employmenttribbunals.gov.uk - but it is not yet up there.

[Thanks to Malcolm Glazier of ELAS for telling me about this]

Agreement on Holiday Dates overrides Statutory Rules

In Industry & Commerce Maintenance v Briffa, the employer gave Mr Briffa one week's notice of termination of his employment. It required him to take 4 days holiday in his last week to use up his outstanding entitlement.

An employment tribunal held that the employer was in breach of Working Time Regulations 1998 Reg 15 which requires that an employer must give notice of holiday dates "double the amount of time to be taken". Since Mr Briffa was not given 8 days notice of his holiday, taking it could not legally be required of him. He was awarded 4 days' pay in lieu of the 4 days' holiday.

The EAT allowed the employer's appeal. The original tribunal had totally overlooked that the basic requirement in WTR Reg 15 can be varied or excluded by a "relevant agreement". In this case there was a contractual term which covered the position and was legally enforceable between the parties. This was a "relevant agreement" under Reg 2 and it overrode Reg 15.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]

Claimant's Companion to Tribunal Claims

I've just come across a fabulous guide (mentioned on Naomi Cunningham's blog) written by Tamara Lewis of the Central London Law Centre, called The Claimant's Companion. It's a very practical, common-sense booklet for claimants in employment tribunals, which will help guide them through the process.

It is, needless to say, something to hand out to clients as a support guide and is not intended as a subtitute for lawyers!

Merrill Lynch & Lehman Brothers

A newsflash which will affect many employment law practitioners with claims against the big investment banks...

This morning in the US, Lehman Brothers announced it was filing for Chapter 11 bankruptcy, and Merrill Lynch have announced they are being purchased by Bank of America (for about 20% of the price their shares reached last year).

See New York Times Online for more information.

New President of EAT Announced

Just in case anyone missed the announcement over the summer, Mr Justice Underhill has been announced as the next President of the EAT. He takes over from Elias P. with effect from January 2009.

Approach to Calculating Compensation

In Adey-Jones v O'Dowd, the EAT has considered the approach to calculating a compensatory award.

Mrs O'Dowd worked in a care home run by Mrs Adey-Jones. A police investigation and internal disciplinary proceedings into suggestions that she was stealing from a patient led to Mrs O'Dowd being dismissed. Mrs O'Dowd denied the allegations and none of them were ever proved. She found new work (at lower pay) but soon became ill and had to leave that job as well.

An employment tribunal found the dismissal unfair. Awarding compensation for loss of future earnings, it concluded that the dismissal process was at least one cause of her illness, and thus included a sum to fully cover Mrs O'Dowd's losses during her sick absence. On this remedies point Mrs Adey-Jones appealed.

The EAT allowed the appeal and remitted the matter back to the same tribunal for further consideration.

HHJ Serota noted that Mrs O'Dowd's illness started some 20 weeks after dismissal, and there were ongoing investigations by the police and the local council. This must all be taken into consideration "in determining whether it could be said that it was sufficiently caused by the actions of [Mrs Adey-Jones] as would justify a finding that [she] was responsible for the illness and consequently for the loss of earnings...". Furthermore there should not be an 'all-or-nothing approach' but one that takes into account the percentage to which the employer's actions are responsible for the illness as against the other factors.

[Thanks to www.emplaw.co.uk for allowing me to use their summary of this case]