Monday 26 June 2000

Industrial Action Code of Practice and C of A decision [auto260600]


1. Revised Code of Practice on Industrial Action Ballots and Notice to Employers
2. Reference to ECJ - Lawrence v Regent Office Care Ltd.


1. Revised Code of Practice on Industrial Action Ballots and Notice to Employers

The DTI has today issued the draft revised Code of Practice on Industrial Action Ballots and Notice to Employers.

Subject to parliamentary approval, it will take effect on 18th September 2000.

To obtain a copy (Word for Windows format, 68K), please reply to this message (ensuring 'auto260600' appears in the subject line).


2. Reference to ECJ - Lawrence v Regent Office Care Ltd.

The Court of Appeal has referred the above case to the ECJ in a decision dated 21st June 2000.

Facts: 447 applicants worked in the cleaning and catering services departments for North Yorkshire schools. Following compulsory competitive tendering of the services, the Council reduced the wages of female workers in order for its in-house company to remain competitive. The female workers took their Equal Pay Act claim to the House of Lords [1995] ICR 833, where they eventually succeeded.

Whilst that litigation was going on, a further competitive tendering exericse took place. The wages of female workers who were transferred under TUPE to a contracted-out organisation were either maintained (on a discriminatory basis) or reduced further.

Issue for the domestic courts: Could the female workers who continued to work for an undertaking contracted out by a local authority rely on male comparators who continued to be employed by the local authority (i.e. not the same, or an associated, employer)?

Questions Referred: The Court of Appeal referred the following two questions to the ECJ (subject to submissions from Counsel as to the precise wording to be used):
(1) Is Article 141 (prev. Art. 119) directly applicable in the circumstances of this that it can be relied upon by the applicants in national proceedings to enable them to compare their pay with that of men in the employment of the North Yorkshire County Council who are performing work of equal value to that done by the applicants?

(2) Can an applicant who seeks to place reliance on the direct effect of Article 141, do so only if the respondent employer is in a position where he is able to explain why the employer of the chosen comparator pays his employees as he does?

Wednesday 21 June 2000

New Decisions


1. Court of Appeal - East Riding of Yorkshire Council v Gibson
2. Recent EAT Decisions


1. Court of Appeal - East Riding of Yorkshire Council v Gibson

The Court of Appeal has this morning handed down judgment in East Riding of Yorkshire Council v Gibson, overturning the decision of Morison J. in the EAT [1999] ICR 622.

Mrs Gibson, who was employed by the Council as a swimming instructor, brought a claim seeking holiday pay against the Council for the period 23rd November 1996 until 1st October 1998. The 23rd November 1996 was the date by which all member states should have implemented the Working Time Directive (93/104/EC), and 1st October 1998 was the date that the Working Time Regulations 1998 came into force.

She argued that the Directive had direct effect, and she could therefore claim directly against the Council (as an emanation of the State) for the State's failure to implement the directive between 1996 and 1998.

The employment tribunal held that the Directive did not have direct effect. The EAT held that it did, and that Mrs Gibson was entitled to succeed. The Court of Appeal (lead judgment from Mummery LJ) held that it did not have direct effect.

The main consideration was that the Directive was not sufficiently precise. It left a number of questions unanswered, such as the precise definition of 'working time' (upon which the entitlement to leave depended), the absence of criteria to assess entitlement during the first year (or part-year) of employment, or problems arising through part-time work, work on a commission basis, or where there was more than one employer.

Since the Directive was not sufficiently precise, it followed that it could not be relied upon by Mrs Gibson as having direct effect.


2. Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at

Just the one today...

Clark v Farhenheit 451 [6.6.2000, HHJ Altman]

How long is a 'reasonable' notice period for a senior employee? The EAT held that a relevant factor is the length of service of the employee - i.e. the 'reasonable' period is not necessarily determinable as at the date of entering into the contract of employment, but will depend on how long the employee has been employed. The EAT replaced a finding that a reasonable period was one month with a notice period of three months.

Monday 19 June 2000

Recent EAT Decisions

Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at

Reid v Foxbar Hotel [9.6.2000, Lord Johnston]
The Applicant was subjected to acts of sexual harassment. Three months and 10 days after those acts ceased, during which period she was subjected to a period of silence from her employers, she was dismissed. The Respondent argued that the period of silence was sufficient, since it did not amount to less favourable treatment, to mean that there was no continuing act of discrimination and the claim was out of time. The EAT held that, in the absence of an explanation by the employer, the employment tribunal should infer that the period of silence was attributable to the period of sexual harassment and thus amounted to less favourable treatment in itself. Accordingly a finding of discrimination was substituted.

Highland Primary Care NHS Trust v MacDonald [6.6.2000, Lord Johnston]
Back to the range of reasonable responses! Mrs MacDonald, a long-serving nurse, was found intoxicated on duty. She was dismissed. The majority of the employment tribunal initially thought that this fell within the range of reasonable responses but, after the decision in Haddon v Van den Burgh Foods was published, changed their mind and decided that they would not have dismissed - thus the dismissal was unfair. On the facts of the case, the EAT upheld the tribunal's decision. The decision contains an attempt to reconcile the irreconcilable decisions of Haddon v Van den Burgh Foods and Midland Bank v Maddon but, regrettably, does not make matters much clearer.

Bradley v Leisure Promotions [5.6.2000, Lord Johnston]
The IT1 was posted to a tribunal within the 3-month period by recorded delivery. Due to a slight delay, it arrived one day after expiry of the 3-month period. The tribunal found it would have been practicable to present the claim in time, and declined jurisdiction. The EAT held that, notwithstanding the availability of the fax or 1st-class post to present the IT1, the Applicant should not be prejudiced by a slight delay caused by recorded delivery. It held that the employment tribunal's decision was perverse and held that the ET did have jurisdiction to hear the claim.

Lethbridge v British Steel [10.5.2000, HHJ Wilson]
The Applicants were employed by a company which was taken over by British Steel. They were told that there was no TUPE transfer and, on the basis of that representation, signed COT3 agreements to compromise their claims of unfair dismissal. The Respondent conceded before the EAT that the representation that there had been no TUPE transfer was wrong. The EAT held that the employment tribunal should decide, in determining whether the COT3 was effective, "whether the Appellants' decision to sign the COT3 was materially influenced by the admitted false representation that TUPE did not apply". If so, the COT3 was invalid and the Applicants could proceed with their claims.

Friday 16 June 2000

Further Trade Union S.I.s [auto160600]

Some further statutory instruments have been published in connection with the new union recognition procedure, which came into force on 6th June.

They are:
• The Recognition and Derecognition Ballots (Qualified Persons) Order 2000 [SI 2000/1306]
• The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2000 [SI 2000/1307]
• The Employment Tribunals Act (Application of Conciliation Provisions) Order 2000 (Revocation) Order 2000 2000 [SI 2000/1336]
• The Employment Relations Act 1999 (Commencement No. 6 and Transitional Provisions) Order 2000 [SI 2000/1338]

For copies (HTML format, total size approx. 35K), please REPLY to this Email, ensuring the phrase 'auto160600' appears in the subject line.

Part Time Workers [auto 170600]

Copies are available of my recent article in Employment Lawyer issue 45 (CCH Croner), published yesterday, on the new Part Time Workers Regulations (which come into force on 1st July 2000).

If anyone would like a copy (Word for Windows format, 37K), please REPLY to this Email, ensuring the phrase 'auto170600' appears in the subject line.

Saturday 10 June 2000

ACAS Code on Disciplinary and Grievance Procedures

The ACAS Code on Disciplinary and Grievance Procedures (which also covers the new statutory right to be accompanied at disciplinary and grievance meetings) has now been re-published following the extensive consultation period which took place between 24th January and 27th March.

It was laid before parliament on Thursday, where it must remain for 40 days before it can be formally issued.

Unless it is rejected by parliament, it will come into force on 4th September 2000.

A copy of the new Code (Word for Windows format) is attached. A copy in Adobe Acrobat format can be downloaded from

Tuesday 6 June 2000

Trade Union Recognition Documents


The statutory procedure for trade union recognition comes into force tomorrow 6 June.

Welcoming these provisions, Alan Johnson, Minister for Competitiveness, said:

"This legislation is a further important step towards giving workers in the UK basic minimum rights. I am convinced the new statutory procedure will become an accepted and enduring feature of our employment relations system.

"It is the product of detailed and lengthy consultation with employers, unions and others lasting nearly three years. Thanks to their input, I believe this new statutory procedure is fair,
workable, and balanced.

"It is fair because it gives individual workers the right to be collectively represented where a majority of them wants it.

"It is workable because it gives maximum scope for parties to resolvetheir differences voluntarily at every stage.

"And it is balanced, because it safeguards the legitimate interests of business. The costs on business of operating the procedure are low, and businesses employing 20 or fewer are exempt.

"The Central Arbitration Committee is taking on major new responsibilities for overseeing the scheme. So, the membership of the Committee has been strengthened. The new Chairman, Sir Michael Burton, and the other new members of the Committee bring an enormous depth and range of industrial relations experience to their work."

Notes for Editors:

1. The Employment Relations Act 1999 gained Royal Assent on 27 July last year. It contains provisions to introduce a statutory procedure whereby unions can be recognised (or derecognised) for collective bargaining purposes where it is the clear wish of the workers comprising the relevant bargaining unit. These provisions (Sections 1, 5, 6 and 25 and schedule 1 of the Act) are brought into force tomorrow 6 June, as is a Code of Practice on Access to Workers during Recognition and Derecognition Ballots and the Secretary of State's specification of a method of conducting collective bargaining.

2. Where their claims for recognition cannot be resolved bilaterally with the employer, unions can apply under the statutory procedure to the Central Arbitration Committee (CAC). The CAC will assign a three person Panel to each case: the Chairman or one of his deputies; a member with experience as an employer's representative; and a member with experience as a worker's representative. The High Court judge, Sir Michael Burton QC, took up his appointment as the new Chairman of the Committee on 27 March. Thirty-nine other new members of the Committee started their appointments on 10 April. Press contact for further information on operation of the CAC is James Peacock, tel: 020 7261 8813.

3. In cases where it organises recognition ballots, the CAC will award recognition if it is supported by:

(a) a majority of those voting; and
(b) at least 40% of the workers entitled to vote.

4. Under the statutory procedure, the CAC may award recognition without a ballot if more than 50% of the bargaining unit are members of the union(s) applying for recognition. However, the
procedure also provides for the CAC to organise a ballot in such circumstances, if, for example, it is satisfied that a ballot should be held in the interests of good industrial relations.

5. The Code of Practice and the specification of the method of conducting collective bargaining are available on DTI's website

Monday 5 June 2000

Trade Union Recognition + other matters


1. Compulsory Trade Union Recognition - 6th June 2000
2. Bernadone v Pall Mall (Court of Appeal)
3. Recent EAT Decisions
4. Advertisement - Employment Law Service by CCH.NewLaw


1. Compulsory Trade Union Recognition - 6th June 2000

The provisions of the Employment Relations Act 1999 imposing compulsory recognition of trades unions on employers (if a sufficient number of workers vote accordingly) come into force tomorrow. The commencement order is SI 2000 / 1338 (The Employment Relations Act 1999 (Commencement No 6 and Transitional Provisions) Order 2000).

For a change of such stunning importance, very little has been written about it in the legal or popular press (perhaps because of the length and complexity of the relevant Schedules to the statute!). The unions have been gearing up to 6th June for months. Many employers are going to be caught by surprise.

The following documents have now been published:
- The Trade Union Recognition (Method of Collective Bargaining) Order 2000; and,

- the draft Code of Practice on Access to Workers during Recognition and Derecognition Ballots.

For copies of these documents in Word for Windows format, please REPLY to this Email (ensuring the subject line remains unchanged). This is an automated procedure, so I will not see any correspondence you include in your message.


2. Bernadone v Pall Mall

Subscribers probably spotted the Court of Appeal's decision in Bernadone v Pall Mall (CA, 16.5.00, reported in The Times, 26.5.00).

For those who missed it, the Court of Appeal held that:

(a) tortious liabilities (in these cases, liability for personal injuries which accrued before a TUPE transfer) transfer under the TUPE regulations; and,

(b) the benefit of the transferee's insurance policies will also transfer, so that the transferee's insurance company remains liable to satisfy any judgment, notwithstanding that the judgment is obtained against the transferor.


3. Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at

Tchoula v ICTS (UK) Ltd [4.5.2000, HHJ Peter Clark]
An innovative decision from an appellate court which was desperate to interfere with a high award for injury to feelings in a discrimination case. Following a 21-day hearing, and a further 5 days of deliberation, the employment tribunal allowed 3 of the employee's 21 complaints of discrimination. They awarded £27,000 for injury to feelings and aggravated damages. The EAT held that injury to feeling cases should be divided into 'lower value' and 'higher value' cases, the threshold being around the £10,000 mark. Although it could not interfere with the assessment of damages within a 'lower value' or 'higher value' category, if it thought the tribunal had placed the case into the wrong category, it was entitled to correct this and substitute its own view for that of the tribunal. The EAT held that this was clearly a 'lower value' claim and substituted an award of £10,000.

Colt Group v Couchman [12.1.2000, Charles J.]
The issue for the EAT was whether the small employer exemption in the Disability Discrimination Act 1995 (now 15, but then 20) applied to companies with less than 20 employees per se, but which were part of a huge national conglomerate (with many more than 20 employees!). The EAT held that the DDA envisaged looking at the number of employees of the company itself - not associated companies - and thus the small-business exemption applied. This is the same decision reached by an earlier division of the EAT in Hardie v CD Northern Ltd. (5.10.99, Lindsay J. - see bulletin dated 16.5.00), but the decision is reached as the result of wholly different arguments.




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