Monday 30 July 2001

Burden of Proof Directive

Further to my bulletin dated 25th July, the SEX DISCRIMINATION (INDIRECT DISCRIMINATION AND BURDEN OF PROOF) REGULATIONS 2001 have today been placed on the HMSO website.

They come into force on 12th October 2001.

Wednesday 25 July 2001

Burden of Proof Directive

SEX DISCRIMINATION - BURDEN OF PROOF DIRECTIVE ==============================================

The Sex Discrimination Burden of Proof Directive 1997 was due to come into force at the beginning of this week.

Richard Lister of Lewis Silkin tells me he has made enquiries of the Cabinet Office, who say that Regulations were laid before parliament last Friday, and are due to come into force in 12 weeks time.

The Regulations will make two changes to the Sex Discrimination Act 1975:

First, inserting a section 63A which provides that where an applicant proves facts giving rise to a prima facie case of discrimination, the tribunal SHALL uphold the complaint of discrimination unless the Respondent proves that he did not commit the act. In other words, the burden of proof formally shifts from Applicant to Respondent. This is no more than already happens in practice pursuant to King v GB China Centre.

Secondly, the definition of indirect discrimination will be amended from making in unlawful to impose an unjusifiable "requirement or condition" to a "provision, criterion or practice". This will not make a significant difference.

Monday 23 July 2001

Tribunal Reform Consultation Paper


Within a week of the introduction of the new procedural regime, the government has issued a consultation paper on further reform of the employment tribunals.

Subscribers may have seen some details of these proposals in a leaked report to The Times on Friday 20th July. The full consultation paper is now available at . Responses are invited by 8th October 2001.

The main proposals, on which the government seeks views, are:

- organisations which do not have dispute resolution procedures in place - or do not use them when workplace disagreements arise - to have arrangements for managing such disagreements;

- increasing awards at employment tribunals where a basic new dispute resolution procedure has not been used by the employer - with awards being reduced where an employee has not used the grievance procedures before applying to the tribunal;

- limited extensions to the time limit for lodging tribunal claims where an internal disciplinary or grievance procedure is still in play - in order to facilitate resolution in the workplace;

- an issue fee (£100 has been mooted) to issue an application in the tribunal. Exemptions would apply to those on benefits;

- a presumption in favour of awarding costs in 'weak' cases, with an obligation for tribunals to provide reasons where they do not award costs;

- tribunals to be allowed the discretion to award wasted non-legal costs (such as a party's overnight expenses) in circumstances where a party has acted vexatiously.

- a fast-track system to be introduced for certain jurisdictions (such as unlawful pay deductions and breach of contract);

- allow the Presidents of the Employment Tribunals to issue practice directions, in order to achieve greater consistency throughout the country

- introducing a fixed period of conciliation to focus parties' minds within that period on whether or not they were interested in reaching a settlement.

- a limited amendment to unfair dismissal legislation to allow employment tribunals to disregard minor procedural errors by employers, provided such errors have made no difference in practice and the dismissal is otherwise fair.

Wednesday 18 July 2001

Upper Qualifying Age Decision


The Employment Appeal Tribunal has today handed down the long-awaited decision in HARVEST TOWN CIRCLE v RUTHERFORD, dealing with the question of whether the upper qualifying age for unfair dismissal and redundancy is contrary to Article 141 of the Treaty of Amsterdam.

Harvest Town Circle dismissed Mr Rutherford, who was aged 67. He claimed unfair dismissal. The Respondent relied on sections 109 and 156 of the Employment Rights Act 1996 (which states that employees cannot claim unfair dismissal / redundancy if they are over the normal retirement age, presumed to be 65).

Mr Rutherford responded by arguing that ss 109 and 156 were contrary to Article 141 - ie equal pay for men and women. This is because unfair dismissal and redundancy rights count as 'pay', and more men than women work beyond age 65. Therefore the upper qualifying age is indirectly discriminatory on grounds of sex against men, since more men will work beyond 65 and therefore fail to receive the 'pay' of unfair dismissal and redundancy rights.

The Employment Tribunal found for Mr Rutherford and, following the earlier case of NASH v MASH/ROE [1998] IRLR 168, held that ss 109 and 156 were unlawful and should not be followed.

The EAT overturned the tribunal's decision on technical points, but left the matter open for future attempts.

The basis of the decision was twofold:

First, the EAT held that the statistics used by the employment tribunal were unsatisfactory. It gave guidance on the statistics that would probably be needed to attack ss 109 and 156 successfully, and remitted the matter back to the employment tribunal.

Secondly, it held that the tribunal had erred in failing to invite the Secretary of State to give evidence on objective justification. It held that it was not for a small employer to justify such a fundamental statutory provision, and the Secretary of State should - if necessary - be witness summonsed to explain how the sections can be objectively justified or, alternatively, explain why he was not going to attempt to justify them.

The upper qualifying age saga has not been laid to rest. The EAT's guidelines on the necessary statistics (which are set out in detail in the
decision) are cumbersome and will be an extremely difficult hurdle to overcome. Nevertheless, there can be little doubt that an attempt will be made. The decision is undoubtedly correct - and it is not for the EAT to make findings of facts on statistics that are not currently available.
However, it means that employers remain uncertain as to whether they have immunity from unfair dismissal claims when dismissing staff over retirement age.

Monday 16 July 2001

New Tribunal Procedure Rules

1. New Tribunal Procedure Rules
2. Advertisement - Boodle Hatfield



The Employment Tribunals (Constitution and Rules of Procedure) Regulations
2001 come into force today, replacing the 1993 Regulations of the same name.
They apply to all tribunal proceedings, irrespective of when (or if) the case commenced.

The full Regulations can be downloaded from (and see for the amendment to the commencement date from 18th April 2001 to 16th July). They are already included in the latest update to Harvey on Employment Law at [R-1317].

The important changes are:

(1) introduction of an "overriding objective" to deal with cases "justly", which is defined to include ensuring the parties are on an equal footing, saving expense and dealing with cases in a way that is proportionate to the issues. The parties are placed under a duty to assist the tribunal in furthering the overriding objective. Users of the civil courts will recognise this formula from the Civil Procedure Rules. Applicants may wish to rely on this to persuade tribunals to order Respondents to share the cost of instructing experts. This 'proportionality' requirement may go some way towards limiting the effect of the recent House of Lords decision in Anya v Oxford University (see bulletin dated 24/3/01), which obliged tribunals to investigate every detailed historical allegation of less favourable treatment in discrimination cases.

(2) late IT3s are no longer deemed to include an application to extend
time. Such an application must now expressly be made (the old position being that there was a 'deemed' application if reasons for the delay were given when lodging the IT3).

(3) the costs rules have changed, so that the tribunal has power to award
costs if a party - or his/her representative - has acted "vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived". The introduction of the 'misconceived' test should, in theory, increase the number of costs orders made. Further, the tribunal now has power to assess costs in the sum of up to £10,000 (increased from £500). The ability for the parties to agree a higher sum of costs, or for the tribunal to refer the costs to the county court for taxation, remains.

(4) the rules relating to giving directions as to evidence have been simplified.



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Friday 13 July 2001

New EAT Decisions

The following decisions have been placed on the EAT website in the last few days. The judgments can be downloaded from

* * * * * * *


A standard misconduct unfair dismissal case. It is of use because of the proposition laid down by the court - perhaps more clearly than in previous cases - that:

"We think that in general terms any employer who operated a disciplinary process in which he who investigated the alleged defence was he who judged it, or any employer who operated a disciplinary process in which there was no right of appeal, would (and in most cases perhaps should) be found to have been outside the bounds of the fairness required by section 98 of the Employment Rights Act 1996. It must be all the stronger when those two features are present in the same process."

This will be a very helpful quotation for Applicants who are pursuing claims involving procedural unfairness. Note, on the facts, the EAT did not interfere with the finding that the dismissal was fair.

* * * * * * *

EKPE v METROPOLITAN POLICE COMMIESSIONER (Mr Recorder Langstaff QC, 25th May 2001)

This deals with the vexed question of what amounts to a disability. Several issues arose in the case. The interesting one deals with 'normal day-to-day activities'.

The Applicant had difficulty applying make-up and putting rollers in her hair. The tribunal held these were not 'normal day-to-day activity', because "they are activities carried out almost exclusively by women.
Secondly, using rollers is an activity that the Tribunal believes is only carried out by a minority of women. Even if the Tribunal is wrong as to the proportion of women who use rollers, it is clear that these are activities that are normal only for a particular group of people, namely mostly women."

The EAT overturned this, stating "we should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial, so too may what is "normal"
best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the Guidance, "particular" to the individual applicant)."

* * * * * * *

(Charles J., 15th May 2001)

An unremarkable case on the facts. It contains a useful analysis of the extent to which tribunals are obliged to give reasons, and contains helpful guidance on Meek v City of Birmingham and subsequent cases. A good case to rely on when attacking a tribunal's decision as containing inadequate reasoning.

Thursday 5 July 2001

Fixed Term Workers Regulations


Implementation of the Fixed Term Employees (Prevention of Less Favourable
Treatment) Regulations 2001, which were planned to come into force on 10th July 2001, is being delayed. No alternative commencement date has been announced.

For details of the draft Regulations, see bulletin dated 10th March 2001.

The government has explained the delay (at as being due to "particular problems with implementation in the UK", without stating what those problems are. It relies on a clause in the Fixed Term Workers Directive
( giving member states up to an extra year to implement the Directive if "special difficulties" exist.

What the government omits in its press release is that the implementation date for the Directive was 10th July 1999. Even allowing for the extra year, the Directive should have been implemented by 10th July 2000. The UK has therefore been, and continues to be, in breach of the Directive.


Fixed Term Workers - Correction


A correction to the previous message.

I stated that the Fixed Term Workers Directive had to be implemented by 10th July 1999. In fact, this date was a misprint in the English version of the Official Journal. The implementation date was corrected by a Corrigendum to the Directive, to 10th July 2001 with a 12-month extension if "special difficulties" exist.

So the government will not be out of time for implementing the Directive provided it can establish the "special difficulties".

(Thanks to the three people who corrected me on this!)

Tuesday 3 July 2001

Seminar Notes - Remedies in Employment Disputes


The notes from the 2 Gray's Inn Square seminar on Remedies in Employment Disputes (June 2001) are available free of charge to subscribers to this mailing list.

For a copy of the notes (Word format, 122K), please REPLY to this Email.