Tuesday 20 November 2001

New Cases


1. ECJ Opinion - Maternity Benefits
2. New EAT Cases

1. ECJ Opinion - Maternity Benefits

The Advocate General has provided his opinion in C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij. At present, it is available in French, German and Dutch only.

According to the Federation of European Employers, he has advised the ECJ that is lawful for an employer to offer subsidised childcare to female employees in preference to male employees. They state that "in an extensive and frequently convoluted rationale, [Advocate-General] Alber sets aside the views of the European Commission which clearly opposed such a measure as not constituting legitimate positive action under the 1976 Equal Treatment Directive." The case now goes to the ECJ for a final decision sometime next year.


2. New EAT Decisions

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

(Lord Johnstone, 18th October 2001)
In order for the duty to make reasonable adjustments under the Disability Discrimination Act 1995 to bite, the disabled employee needs to establish that an "arrangement made by or on behalf of an employer" places him at a substantial disadvantage. The EAT considers that the word "arrangement" envisages positive steps taken by the employer, and an arrangement cannot arise by means of an omission. Thus the failure to pay a disabled employee his sickpay through administrative error was not capable of amounting to an arrangement, and thus not capable of triggering the duty to make reasonable adjustments.

(Lindsay J., 6th November 2001)
A further gloss on the Court of Appeal's decision in Anya v University of Oxford (see bulletin 24/3/01) - although the EAT takes pains to insist it is following Anya and not limiting its application. Anya provided that in discrimination cases, the employment tribunal must examine every issue raised by an Applicant, and make findings of fact on each of them. However, this case states that the tribunal does not need to go through every allegation raised by the applicant, when the issues raised are "otiose".


As foreshadowed in vague (and it seems, somewhat inaccurate) reports in the Sunday papers, the government has today announced its new proposals to help parents work more flexibly - primarily to allow working parents to work part-time. The proposals will apply to parents of children under 6 years old (and to parents of disabled children under 18 years old).

According to this afternoon's DTI press release, the proposals will operate in the following way:

"- The employee makes a written request to their employer, which is followed up by a meeting. The employer should make a practical business assessment on how the flexible working can be arranged. It is estimated, on the basis of current practice, that 80% of requests will be settled at this meeting.

"- If a request cannot be accepted, the employer must fully explain the business reasons in writing. The employee can appeal a negative decision using dispute resolution and ultimately go to an employment tribunal. Estimates, based on current practice, suggest that only 1% of requests will end up at a tribunal."

A copy of the full press release is available here.

Monday 19 November 2001

Age Equality Commission Bill 2001

The Age Equality Commission Bill 2001, a private member's Bill introduced in the summer, has now been published on the internet.

It proposes the establishment of an Age Equality Commission, whose duties shall be to advise the government on matters relating to age discrimination, assess the impact of (but not draft) legislation prohibiting age discrimination, and prepare guidelines for eliminating age discrimination.

To see the Bill, click here.

Thursday 8 November 2001

Employment Bill 2001

The government has published the Employment Bill 2001, which has formed the subject of much rumour and speculation in recent weeks.

It covers working parents, dispute resolution, and improving the skills of employees.

The main provisions are:
• six months' paid, and a further six months' unpaid, maternity leave for working mothers;
• six months' paid, and a further six months' unpaid, leave for adoptive parents;
• two weeks' paid paternity leave for working father;
• an increase in SMP from £62pw to £100pw;
• reimbursement of maternity, paternity and adoptive payments by employers from the government, with small employers receiving 100% reimbursement plus a bonus payment on top;
• the establishment of union learning representatives (with a right to paid time off work);
• a questionnaire procedure in Equal Pay cases;
• a power for the Secretary of State to introduce regulations protecting fixed-term workers;
• new systems for handling disputes in the workplace;
• a fast track system for some employment claims.
If enacted, it is anticipated these rights will come into force from April 2003.

The government has also formally announced it will not be introducing charges for applicants bringing tribunal claims.

For further information, click here.

Friday 2 November 2001


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

(Lindsay J., 2nd October 2001)
The police were entitled to refuse to employ a transsexual as a police constable, since the job involved making intimate body searches and thus it needed to be undertaken by one gender to preserve decency or privacy (SDA 1975, s7(2)(b))

(Douglas Brown J., 26 September 2001)
Mr O'Murphy worked for Hewlett-Packard through the medium of a limited company which, in turn, had been engaged via an employment agency. The EAT held that he was not an employee for unfair dismissal purposes. The contract between Hewlett Packard (the client company) and the employment agency stated that "staff provided…will be under the control of [Hewlett Packard] regarding performance and discipline and shall obey all reasonable and lawful instructions given by [Hewlett Packard]" - thus there was clear control by the client company. However, because there was no contractual nexus between Hewlett Packard and Mr O'Murphy, save for a confidentiality agreement, there could be no contract of employment implied between them.

(Ms Recorder Cox QC, 21 September 2001)
A breach of the term of trust and confidence, ie conduct calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee, will always amount to a fundamental breach of contract entitling the employee to resign. In other words, it is an error of law for a tribunal to find that a breach of trust and confidence has occurred, but then go on to say it was not sufficiently fundamental to entitle the employee to resign.

(Ms Recorder Cox QC, 21 September 2001)
Under s186 of the Employment Rights Act 1996, the DTI is obliged to make payments of arrears of wages to employees of an insolvent employer, subject to a statutory cap (then £220, now £240) for each week's pay. The issue in this case was whether the cap should be applied before or after deductions for tax and national insurance (the former being more favourable to the DTI, the latter more favourable to the employee). The EAT confirmed pre-existing authority that the cap should be applied before deductions for tax and national insurance: thereby resulting in the employees recovering less that the statutory cap for each week's pay.

(HHJ Peter Clark, web transcript undated 2001)
The Council proposed to make about 350 staff redundant - thus triggering obligations to consult with the recognised unions at least 90 days before the first dismissal took place (s188 TULCRA 1992). For that purpose, 'dismiss' meant the date on which notice of dismissal takes effect, not (as previous authority suggested) the date that notice of dismissal is given. Moreover, it is not open to an employer in such circumstances to argue that dismissal would be futile (as in a Polkey redundancy case) - subject to the statutory defence, the duty to consult is mandatory.

(Ms Recorder Slade QC, 13 September 2001)
When exercising discretion whether to extend time under the 'just and equitable' jurisdiction of the Race Relations Act 1976, the tribunal is under a duty to make a finding as to the reason for the delay in presenting the claim. Failure to make such a finding is an error of law.