Friday 28 September 2001

Amendment to the Working Time Regulations

In the light of BECTU v UK (see bulletins dated 26th and 28th June 2001), the government has this afternoon announced an amendment to the Working Time Regulations. This follows a 4-week consultation period which concluded last month.

The amendment will remove the 13-week qualifying period for holiday pay, and will substitute a right to take one-twelfth of the annual holiday for each month worked, rounded to the nearest half-day.

This remains technically in breach of the EC Working Time Directive, since it replaces the 13-week qualifying period with, in practice, a one-month qualifying period. However, similar systems are operated by other European jurisdictions and it is unlikely that the new law will be challenged.

The amendments are due to come into force from 25th October 2001. The amending SI is not yet available, but soon should be placed on the HMSO website at

AND a reminder: from Monday, the national minimum wage increases to £4.10ph for adult workers (from £3.70), and to £3.50ph for workers under 21 (from £3.20).

Monday 10 September 2001


After many months of waiting, the DTI has published its consultation paper on amendments to the TUPE Regulations. The consultation period lasts until 15th December 2001.

The main proposals, on which views are sought, are:

• options for new rules as to when TUPE applies, particularly in contracting-out cases;
• proposals for better protection of occupational pension rights;
• greater flexibility when applying the Regulations to transfers of insolvent businesses, to make it more attractive for potential buyers to rescue those businesses and save jobs (including that some - albeit limited - liabilities of insolvent transferors be met from the DTI National Insurance Fund);
• better guidance for both employees and employers on the extent of protection against transfer-related dismissals - in particular, clarifying the 'ETO' defence;
• making it clear that TUPE does not preclude transfer-related changes to terms and conditions, where the changes are made for an ETO reason; and,
• a legal requirement for the old employer (transferor) to give the new employer (transferee) proper notification about the rights and obligations being transferred.

The full consultation document, and information about the consultation process, can be found at

[Thanks to Simon Jeffreys of CMS Cameron McKenna for notifying me of this news item]

Sunday 2 September 2001


These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.

(Douglas Brown J., 10th July 2001)
A short delay by an employer in paying sick-pay, where there was a genuine dispute over whether the employee was malingering and the employer was seeking medical evidence, was not a fundamental breach of contract amounting to a constructive dismissal.

(Mr Commissioner Howell QC, 27th July 2001)
An employee claiming to be physically disabled within the meaning of the Disability Discrimination Act 1995, but who was actually suffering from a functional overlay (ie there was nothing physically wrong with them, but he had a psychological condition which had the effect of physically handicapping him) was not suffering from a 'physical impairment' within the meaning of the Act. Moreover, there is no duty on a tribunal to investigate whether the functional overlay amounts to a 'mental impairment' within the meaning of the Act unless the parties call evidence on the point and pursue it as a discrete argument.

(Douglas Brown J., 25th July 2001)
A useful summary of the principles relating to when a chairman can sit alone to hear a case.

(HHJ Wakefield, 26th April 2001)
An unrepresented employer's witnesses failed to attend the tribunal hearing because, for unforeseen reasons, the employer was understaffed and could not spare the witnesses on the day of the hearing. The chairman proceeded with the hearing without asking the employer whether it wished to seek an adjournment. The EAT held that there is no duty on a tribunal chairman to ask an unrepresented litigant whether they wish to apply for an adjournment in such circumstances.