Friday 20 October 2000

Various matters

CONTENTS

1. Whistleblowing case
2. Anti-Discrimination Directive
3. Advertisement - CPD service

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1. Whistleblowing Case

John Bowers QC of Littleton Chambers has sent me a transcript of an employment tribunal decision relating to an important point of principle in whistleblowing cases.

The tribunal held that the Public Interest (Disclosure) Act 1998 protects employees who make protected disclosures prior to the date the Act came into force. On the facts, the employee made a protected disclosure about four months before the Act came into force. A year later (after the Act had come into force), the employer relocated him to a different department (which was said to be a detriment).

The tribunal held that it had jurisdiction under PIDA 1998 to consider the employee's complaint, despite the protected disclosure occurring prior to the Act coming into force.

Edgar v Meteorological Office, Employment Tribunal (London central) chaired by Mrs JR Hill on 5th October 2000, sent to the parties on 11th October 2000.

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2. Anti-Discrimination Directive

Many readers will have read in the news that the EC has now approved the long-awaited Employment Framework Directive. According to press reports, it requires all member states (including the UK) to introduce legislation:

• prohibiting discrimination against workers on grounds of religion and sexual orientation by 2003; and,

• prohibiting discrimination against workers on grounds of disability and age by 2006. Note that although the Disability Discrimination Act 1995 may comply with the requirements of the Directive, rumour has it that there is no 'small employer' exemption within the Directive - thus the DDA will have to be amended to apply to all employers, not just those with over 15 employees.

I have not yet seen a copy of the Directive. Once I have a copy, it will be made available via this mailing list.


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3. Advertisement

REMINDER

The current session of the Employment Law (UK) mail list CPD Scheme closes on 1st November 2000, when the answers to this quarter's questions will be published.


It is now possible to obtain CPD hours for receiving these bulletins.


How does the Scheme work?

By answering multiple choice questions based on the employment law bulletins sent out in the previous 3 months, you can obtain 2 CPD hours each quarter.

The questions (and an archive of the last 3 months' bulletins) are available at www.cpdpoints.co.uk

The number of CPD hours awarded depends on the number of correct answers to the multiple choice questions, as follows:
5 or more correct (out of 12) - 1 CPD hour
7 or more correct (out of 12) - 1.5 CPD hours
9 or more correct (out of 12) - 2 CPDhours

How much does it cost?

There is no charge for attempting the questions.

Your score (and number of CPD hours to which that entitles you) will be sent to you by Email. You may then, if you wish, purchase the CPD hours for a fixed fee of £100+VAT.



How do I answer the questions?

The questions, and an answer form, are available online at www.cpdpoints.co.uk . All the answers can be found in the Employment Law (UK) bulletins as sent over the last few months. If you have not retained them(!), copies can be found on www.cpdpoints.co.uk .

For those who do not have access to the internet, a list of the questions will be distributed by Email next week.

The answers will be published on 1st November 2000. New sets of questions, based on the preceding 3 months' bulletins and entitling you to obtain yet more CPD hours, will be produced every quarter.



www.cpdpoints.co.uk and the CPD assessment scheme are adminstered by Employment Law Services Limited. Employment Law Services Limited is accredited by the Law Society as an authorised provider of CPD courses.

Tuesday 17 October 2000

Phone Tapping

Rumour has it that my previous bulletin demonstrated quite how complicated employment law has become - being a mass of unreadable garbage!

What it should have contained was the text of the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (mentioned in my bulletin dated 5th October). It has now been published and is reproduced with the permission of Her Majesty's Stationery Office. Please find the Regulations attached in HTML format.

Thursday 5 October 2000

New Regulations on Email and Telephone Monitoring

The Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 have been published under the Regulation of Investigatory Powers Act 2000.

Apart from having an impressive title, the Regualations set out the circumstances in which an employer can record or monitor employees' communications (such as Email or telephones) without the consent of either the employee or the other party to the communication.

These circumstances are very wide, and they include:

  • for recording evidence of business transactions;
  • ensuring compliance with regulatory or self-regulatory guidelines;
  • maintaining the effective operation of the employer's systems (eg preventing viruses);
  • monitoring standards of training and service;
  • preventing or detecting criminal activity;
  • preventing the unauthorised use of the computer/telephone system - ie ensuring the employee does not breach the company's Email or telephone policies.

It is necessary under the Regulations for employers to take reasonable steps to inform employees that their communications might be intercepted. This reinforces the need for all employers to introduce an Email / internet policy for their workers.

The Regulations come into force on 24th October 2000.

www.incomesdata.co.uk) for notifying me of these Regulations>

________________________________________

ADVERTISEMENT

New CPD Scheme launched for this list


It is now possible to obtain CPD hours for receiving these bulletins.


How does the Scheme work?

By answering multiple choice questions based on the employment law bulletins sent out in the previous 3 months, you can obtain 2 CPD hours each quarter.

The questions (and an archive of the last 3 months' bulletins) are available at www.cpdpoints.co.uk

The number of CPD hours awarded depends on the number of correct answers to the multiple choice questions, as follows:
5 or more correct (out of 12) - 1 CPD hour
7 or more correct (out of 12) - 1.5 CPD hours
9 or more correct (out of 12) - 2 CPDhours

How much does it cost?

There is no charge for attempting the questions.

Your score (and number of CPD hours to which that entitles you) will be sent to you by Email. You may then, if you wish, purchase the CPD hours for a fixed fee of £100+VAT.



How do I answer the questions?

The questions, and an answer form, are available online at www.cpdpoints.co.uk . All the answers can be found in the Employment Law (UK) bulletins as sent over the last few months. If you have not retained them(!), copies can be found on www.cpdpoints.co.uk .

For those who do not have access to the internet, a list of the questions will be distributed by Email next week.

The answers will be published on 1st November 2000. New sets of questions, based on the preceding 3 months' bulletins and entitling you to obtain yet more CPD hours, will be produced every quarter.


www.cpdpoints.co.uk and the CPD assessment scheme are adminstered by Employment Law Services Limited. Employment Law Services Limited is accredited by the Law Society as an authorised provider of CPD courses.

Tuesday 3 October 2000

Company Directors and Doctors' Working Hours

CONTENTS

1. Minimum wage and company directors
2. ECJ Decision - Doctors' maximum working hours

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1. Minimum Wage and Company Directors

An Inland Revenue agreed guidance note on the impact of the minimum wage on company directors has been issued by the Tax Faculty of the Institute of Chartered Accountants.

The note is particularly useful for its guidance on when a director is also an employee.

It can be downloaded from http://www.taxfac.co.uk/facultypublications/documents/11-520-1.doc

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2. ECJ Decision - Doctors' maximum working hours
The ECJ has, this morning, handed down its decision in Sindicator de Medicos de Asistencia Publica v Spain.

It held that Spanish primary care doctors are subject to the maximum 48-hour week.

The important sections of the judgment, which is available at http://www.curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79998996C19980303&doc=T&ouvert=T&seance=ARRET&where=() ,are to hold/confirm that:

  • trainee doctors are not subject to the 48-hour week, they being a specific exemption from the Working Time Directive;
  • doctors who are 'on-call' at a health centre are counted as working, for the purpose of the Working Time Directive;
  • doctors who are 'on-call' away from a health centre (ie at home) are not counted as working, for the purpose of the Working Time Directive;
  • doctors who are 'on-call' at night are not rendered 'night workers' simply by reason of the Directive.
________________________________________

ADVERTISEMENT

New CPD Scheme launched for this list


It is now possible to obtain CPD hours for receiving these bulletins.


How does the Scheme work?

By answering multiple choice questions based on the employment law bulletins sent out in the previous 3 months, you can obtain 2 CPD hours each quarter.

The questions (and an archive of the last 3 months' bulletins) are available at www.cpdpoints.co.uk

The number of CPD hours awarded depends on the number of correct answers to the multiple choice questions, as follows:
5 or more correct (out of 12) - 1 CPD hour
7 or more correct (out of 12) - 1.5 CPD hours
9 or more correct (out of 12) - 2 CPDhours

How much does it cost?

There is no charge for attempting the questions.

Your score (and number of CPD hours to which that entitles you) will be sent to you by Email. You may then, if you wish, purchase the CPD hours for a fixed fee of £100+VAT.



How do I answer the questions?

The questions, and an answer form, are available online at www.cpdpoints.co.uk . All the answers can be found in the Employment Law (UK) bulletins as sent over the last few months. If you have not retained them(!), copies can be found on www.cpdpoints.co.uk .

For those who do not have access to the internet, a list of the questions will be distributed by Email next week.

The answers will be published on 1st November 2000. New sets of questions, based on the preceding 3 months' bulletins and entitling you to obtain yet more CPD hours, will be produced every quarter.


www.cpdpoints.co.uk and the CPD assessment scheme are adminstered by Employment Law Services Limited. Employment Law Services Limited is accredited by the Law Society as an authorised provider of CPD courses.

Monday 2 October 2000

Human Rights Act [autoreply 021000]

Just in case anyone has missed it, the Human Rights Act 1998 comes into force today.

Copies are available of my article 'Employment Law and Human Rights', which was published in ELA Briefing in March 2000, on my website . Alternatively, to obtain a copy in Word format (56K) by Email, just reply to this Email (ensuring that the phrase 'autoreply 021000' appears in the subject line) and it will be sent automatically.

Discrimination against Gays now Unlawful

The transcript of MacDonald v Ministry of Defence (EAT, 17th September 2000) has just been published.

The EAT has departed from previous authorities which hold that discrimination against homosexuals does not fall within the Sex Discrimination Act 1975.

It held that the word 'sex' in the Sex Discrimination Act 1975 is ambiguous - potentially including sexual orientation as well as gender. Despite the previous authorities to the contrary, it held that it is obliged to look at rights under the European Convention of Human Rights when, in two recent cases (Lustig-Prean and Salgueiro da Silva Mounta v Portugal), the European Court held that discrimination against homosexuals offended articles 8 (right to respect for privacy) and 14 (right not to be discriminated against when enjoying Convention rights) respectively.

Due to these new authorities, it was time to reconsider the traditional UK approach.

Accordingly, when considering a case of discrimination against a homosexual employee, the correct comparator under the Sex Discrimination Act 1975 is now a heterosexual (be it male or female) rather than a homosexual of the opposite gender.

The transcript can be downloaded from:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/fcac7ff40afaec3c8025696c0039e3c0?OpenDocument

Note: if the link does not work (it may be too long for some browsers), try http://wood.ccta.gov.uk/eat/eatjudgments.nsf