Monday 31 July 2000

Midland Bank v Madden - C of A result

I have received the following message from David Reade, Counsel for the employee in Foley v Post Office (which was heard at the same time as Midland Bank v Madden).

He tells me that no written decision is yet available, but that the Court of Appeal wanted to give a verbal judgment before the vacation.

Friday 28 July 2000

Waters v Police - H of L judgment

The House of Lords handed down its opinion yesterday (27th July 2000) in Waters v Commissioner of Police for the Metropolis.

Ms Waters was a police officer. She alleged she was raped and buggered by a fellow police officer. Her complaint about that officer was not taken seriously or properly investigated. Moreover, she was subsequently tormented and bullied by her colleagues for complaining about a fellow officer. She suffered psychological harm as a result of (1) the failure to investigate, and (2) the subsequent bullying.

Her claims of sex discrimination failed before the IT, EAT and Court of Appeal - essentially because it was accepted that the constable was not acting in the course of his employment. That finding was not appealed.

She also brought a claim for personal injuries in the High Court. This was struck out as disclosing no reasonable casue of action, and the strike-out was upheld by the judge and the Court of Appeal. It is against that strike-out that Ms Waters appealed to the House of Lords.

The House of Lords held (unanimously) that is clearly arguable that an employer (including the police, as a quasi-employer) owes a duty of care to an employee to investigate allegations of rape by colleagues. It is also clearly arguable that the commissioner was (1) in breach of that duty by failing to investigate; and, (2) vicariously liable under section 48 of the Police Act 1964 for the subsequent acts of police officers in bullying and harassing the Claimant.

Accordingly the appeal was allowed and the strike-out overturned.

The House also stated (by a majority of 4:1) that the cases holding that the police owe no duty of care to individuals to investigate crime might not be applicable where the police are also the employer of the victim of crime, since such a person falls to be considered under duties to employees, not duties to members of the public. for notifying me of this decision>

Monday 24 July 2000

EC Directive on Combating Disctimination on Grouds of Racial and Ethnic Origin

The EC Directive on Combating Disctimination on the Grouds of Racial and Ethnic Origin (in, inter alia, employment) was promulgated on 29th June 2000 and published in the Official Journal of the European Communities on 19th July 2000.

A copy is attached to this Email (pdf format).

The main points are:

o eliminate direct and indirect discrimination (including harassment) on racial and ethnic origin in matters relating to employment, membership of trades unions, social security, healthcare, education and access to supply of goods and services
o positive action is expressly permitted
o burden of proof on Respondents to disprove discrimination once a prima facia case is established
o to be implemented by 19th July 2003

Thanks to Henry Scrope of DiscLaw Publishing Limited ( for notifying me of the publication of the Directive.

Thursday 20 July 2000

H of L abolished Advocates' Immunity from Suit

Not strictly employment, but sufficiently of interest to everyone...

The House of Lords has just handed down judgment abolishing advocates' immunity from claims of negligence in civil proceedings.

In Arthur J.S. Hall v Simons (and conjoined appeals) (HL 20th April 2000), a 7-member House of Lords unanimously held that advocates can now be sued for negligence arising out of their conduct of civil hearings. The principle of advocates' immunity, as set out in Rondel v Worsley, should be abolished.

Although not the central issue of the case, the House of Lords split down the middle on whether to retain the immunity for criminal cases. Three members held it should be retained, two held it should be abolished (subject to certain safeguards), one said it should be abolished absolutely, and one member did not express an opinion.

The transcript can be downloaded from

Doubtless BMIF and SIF will be in touch with us soon concerning a nice little increase in premiums...

Thursday 6 July 2000

New TUPE Decision

Adam Creme, head of the Employment Rights Unit at UNISON, has sent me the transcript of an important TUPE decision, handed down by the EAT on 28th June 2000.

In RCO Support Services v UNISON (+ others), the Aintree Hospitals NHS Trust decided to transfer much of the work from one hospital to a nearby hospital, three miles away. The issue was whether there was a transfer of undertakings in relation to the cleaning and catering support services (which were undertaken by different companies, one at each of the two hospitals) - and, therefore, if the cleaning and catering staff had their employment transferred from one company to the other.

On the facts, the ET held (and Lindsay J. in the EAT upheld) that there had been a transfer.

The case is important because:

(a) unlike most TUPE decisions, it is very readable!

(b) it analyses the conflicting decisions in Suzen, Betts v Brintel and ECM Vehicles v Cox;

(c) in doing so, it sounds the death-knell to the ECJ's decision in Suzen.

Essentially, the EAT confirms that there is no rule of law that - where a labour-intensive business does not take on staff employed by a previous undertaking - there is no transfer of undertaking.

Lindsay J.'s concluding paragraph is reproduced below:

"16. ...In the light of ECM in the Court of Appeal we cannot say with any confidence that the [employment] tribunal thereby erred in law. We are no sorry so to conclude. There is a real danger, were Suzen to be given the unqualified force that has been argued for it, that in labour-intensive areas of employment such as cleaning and catering, where contracting-out is now common and where significant assets are often either unnecessary or unlikely to be moved, an incoming contractor would be able to avoid the [Acquired Rights] Directive by the simple expedient, often easy of achievement, of ensuring that he took on none of the previous contractor's workforce. The protection of employees' acquired rights, a basic objective of the Directive, would not only be jeopardised but, as Miss Gower, for the former employees, asserts, would be jeopardised in relation to perhaps the most vulnerable of all classes of workers, those with only relatively simple and commonly-available skills which, on that account, the incoming contractor could readily choose to supply by way of others in the labour market. There are, of course, economic arguments that incoming contractors should be free to bid for their contracts as competitively as they may dare and should thus be entirely free to avoid all obligations to the entrenched employees. However, such economic arguments are not for us and, had they been intended to hold sway, the Acquired Rights Directive would surely never have been called into existence. We dismiss the appeals."

Saturday 1 July 2000

Part Time Workers Regs

Employment Law (UK) List -

A quick reminder: the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 come into force today.