Monday 29 April 2002

Employment TaskForce Report

The Employment Tribunal System Taskforce, chaired by Janet Gaymer, has today published its report on reform of the employment tribunal system. The report was provided to the DTI and the Lord Chancellor.

The main recommendations are:
• establishing a high-level coordinating body to increase coherence amongst the regions, whose ambit would include IT strategy, research programmes, information for users, websites and complaint handling;
• greater emphasis on the prevention of disputes, including more involvement by ACAS;
• earlier disclosure of information by all parties, to help both sides understand if they have a case and enable better judicial case-handling techniques;
• improved infrastructure for ETs, including better IT links, appropriate resources for the workload, more training and more highly skilled administrative staff;
• generally more investment in the system

Other recommendations include:
• a review be undertaken into regulation of employment law advisers;
• a pilot scheme should be set up, piloting the concept of judicial assistants as used in the civil sector;
• the parties should be asked about their availability before a full hearing date is set;
• the time limit for the IT3 should be extended from 21 to 28 days - but should be enforced more rigorously;
• there should be better preparation for hearings before the case, including the chairman and lay members receiving papers in advance;
• the system of enforcing tribunal awards should be reviewed;
• a study should be undertaken to consider widening the jurisdiction of ETs to other employment-related claims;
• tribunal proceedings should be digitally recorded, so that a transcript may be produced in a cost-effective manner;
• the current register of applications should be terminated;
• stress counselling should be made available to those working in ETs.

Both a summary, and the full report, have been published on the internet.

UK in further breach of Working Time Directive

According to a press release just issued, the European Commission has upheld a complaint against the UK government, holding that the Working Time Regulations do not properly implement the EC Working Time Directive.

Amicus, the trade union, complained to the Commission that the WTR fail to implement the Directive because:

• under the Regulations, overtime hours on night shifts are excluded from the 48-hour working week limit, which contravenes the Directive; and,

• under the Regulations, people could volunteer to work additional hours which are unmeasured by the employer, thereby undermining the Directive.

According to the press release, the Commission has issued infringement proceedings against the UK, giving it two months to comply.

The government has already been forced to amend the Regulations, last year, on the basis that the 13-week qualifying period for holiday pay breached the Working Time Directive.

Monday 22 April 2002

New TUPE Decision: RCO v Unison (C of A)

The decision of the Court of Appeal in RCO Support Services Ltd v UNISON (12th April 2002) is now available on the Court of Appeal website.

For details of the EAT's decision, see my bulletin dated 6th July 2000.


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).

The Decisions Below

Both the employment tribunal, and the EAT, held that a transfer of undertakings had taken place.

The Court of Appeal's Decision

The Court of Appeal upheld the decisions below, holding that a transfer had taken place.

Interestingly, Mummery LJ's judgment was supportive of the ECJ's decision in Suzen, indicating movement away from the 'let's all be rude about Suzen' attitude which has appeared in so many recent decisions.

He held:

"24. I agree that it has become clear from Suzen and later judgments that the Court of Justice now interprets the Directive as setting limits to its application in contracting out cases, which were not expressly identified in Spijkers or in Schmidt and other earlier judgments of the Court of Justice. In particular, the mere fact that the putative transferee carries on the same services as the putative transferor had done does not, by itself, support the conclusion that an entity retains its identity. It is not correct to treat that single circumstance as determinative in favour of a transfer. Indeed, there may be no scope for the application of the Directive in a case where, although the same labour-intensive activities are continued or the same services are supplied by a new contractor, none of the workforce has been taken on."
Mummery LJ then goes on to consider the position if a putative transferee deliberately refuses to take on incoming employees so as to avoid the application of the TUPE Regulations. He describes this as "circular" and "not the real point", emphasising that whether staff transfer is merely a factor.

• click here for the full transcript

Friday 19 April 2002

New Agency Worker Decision

Esso Petroleum v Jarvis [HHJ Pugsley, 18th January 2002]

Esso engaged a number of workers through an employment agency. The workers were paid by the agency, although the rates were set by Esso. They worked alongside Esso employees, were subject to the same lines of authority and under Esso's day-to-day control, sought authority for holidays from Esso, were subject to the same working policies, and received bonuses from Esso. By contrast, there was no grievance procedure or formal disciplinary procedure, and they were not members of the Esso pension scheme.

The employment tribunal decided that they were 'employees' of Esso, within the meaning of the ERA 1996 (and, although not stated in the decision, could presumably therefore claim unfair dismissal against Esso). The EAT overturned this, confirming that the absence of a contract between Esso and the workers meant that they were not capable of being 'employees', since there was no contract in existence which could be said to amount to a contract of employment.

This case is a further example of the lack of employment protection given to agency workers (albeit it should be extended if and when the EC Agency Workers Directive is implemented).
• click here for the Esso decision

Thursday 11 April 2002

Government launches new 'Fitness Desk Aid' for GPs

The government has launched a new 'desk aid' for GPs to help them decide whether a patient is fit for work.

It contains the following guidelines:

• the nature of the patients medical condition and how long the condition is expected to last
• the functional limitations which result from the patients condition, particularly in relation to the type of tasks they actually perform at work
• any reasonable adjustments which might enable the patient to continue working - in relation to the workplace it is worth noting that under the Disability Discrimination Act 1995 an employer may be required to make reasonable adjustments for an employee with a long term disability
• any appropriate clinical guidelines - for example the Royal College of General Practitioners has produced clinical guidelines on the management of acute low back pain
• clinical management of the condition which is in the patients best interest regarding work fitness

It continues:

"you should always bear in mind that a patient may not be well served in the longer term by medical advice to refrain from work, if more appropriate clinical management would allow them to stay in work or return to work."

The guide is available here.

Wednesday 10 April 2002

Government promises to end Age Discrimination

Ian McCartney, Minister for Work and Pensions, has today set out the government's commitment to defeating age discrimination in employment, together with all other forms of ageism.

The pledge is for such action to occur over the next 20 years - perhaps not the most ambitious of targets given the EC Equal Treatment Framework Directive requires member states to implement age discrimination legislation by December 2006.

In the style of the great political orators, Ian McCartney said: "Older people are not the world's problem, they are part of the solution to the world's problem... Age discrimination is wrong and the time has come to bin it."

Tuesday 9 April 2002

New EAT Decisions

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

Barlow v PE Jones Contractors Ltd [Mr Recorder Langstaff QC, 4th March 2002]
A potentially important case on the definition of 'worker', where the Respondent had inserted clauses into the contract of employment designed to negative any employment relationship. Many of the clauses were clearly gleaned from previous cases and the contract was a textbook example of the right things to include so as to prevent an employer/employee relationship arising. The employees claimed paid holiday under the Working Time Regulations, and argued that many of these clauses were intended to contract out of the legislation and were therefore void. The EAT did not consider it necessary to deal with this point, instead preferring to allow the appeal on the grounds that the employment tribunal seemed to have applied the test for who is an 'employee' rather than who is a 'worker'.
• click here for the Barlow decision

Curr v Marks & Spencers plc [HHJ Wilkie, 6th March 2002]
An employee had a four year break in her employment, pursuant to the Marks & Spencers' Child Break scheme. Whilst it was clear that there was no governing contract of employment during those four years (so as to enable continuity of employment to continue accruing), the majority of the EAT held that she was "absent from work in circumstances such that...[she] is regarded as continuing in the employment of her employer for any reason" under ERA 1996, s212. Accordingly her continuity of employment remained unbroken during the four year gap and she was entitled to a redundancy payment based on her accrued continuity of employment dating back to 1973.
• click here for the Curr decision

Miller Bros. v Johnson [Mr Recorder Langstaff QC, 14th March 2002]
An employment tribunal has no jurisdiction to hear breach of contract claims where the breach occurred after termination of employment, even if the contract (being a compromise agreement) arose because of the termination of employment.
• click here for the Miller Bros. decision

Thursday 4 April 2002

EC Information and Consultation Directive

The final text of the Information and Consultation Directive was published in the Official Journal of the European Communities on 23rd March 2002.

The Directive gives employees a right to be:

• informed about the business's economic situation,
• informed and consulted about employment prospects (particularly where there is a threat to employment); and,
• informed and consulted about about decisions likely to lead to substantial changes in work organisation or contractual relations (including redundancies and transfers).

Information and consultation has to take place at an appropriate time,. and with the relevant level of management. It is expected it will take place via a union or appropriate employee representatives (although this is yet to be determined by the UK legislation). The representatives will be entitled to meet the employer, submit their views and receive a reasoned response.

Employers may withhold information when disclosure would seriously harm the company or be prejudicial to it, or they may require that it be kept confidential by the employee representatives to whom it is disclosed.

The U.K. has three years to implement the Directive, i.e. until 23rd March 2005, by when it must apply to all businesses with over 150 employees. By March 2007 it must be extended to all businesses with over 100 employees, and by March 2008 it must apply to all businesses with 50 or more employees. The Directive does not apply to businesses with less than 50 employees. Businesses with 50+ employees account for about 75% of UK employees

New EAT Decisions

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

Rotherham Reboring Services Ltd v Maycock [HHJ Wilkie, 6th Feb 2002]
The employment tribunal disapplied ERA 1996, s109 (upper qualifying age for unfair dismissal) and allowed a 65-year old to claim unfair dismissal. Time for appealing that decision expired (the employer was unrepresented and unaware of Rutherford v Harvest Town Circle). At a subsequent remedies hearing, the tribunal disapplied s119(4) on the same basis. The employer appealed the basic award of £6,600, relying on Rutherford. The EAT held that the employer was issue estopped from bringing the appeal, since the first decision had not been appealed and the tribunal had made an effective finding that a 65-year old was entitled to full compensation for unfair dismissal.
• click here for the Rotherham decision

MSF v Refuge Assurance plc [Lindsay P., 15th Feb 2002]
TULR(C)A 1993, s188 provides that consultations must begin in good time before multiple redundancies, when an employer is proposing to dismiss more than 20 employees. This does not mean when the employer first thinks about redundancies, or contemplates redundancies as a contingency plan. For deciding what is meant by 'in good time', an employer should consider the probable date of redundancies, decide how long will be required for effective, good-faith consultation, and calculate the date when consultation should start from then.
• click here for the MSF decision

Brown v Kigass Aero [Lindsay P., 25th Feb 2002]
This case was summarised in the bulletin dated 5th March 2002, namely that workers on long-term sick absence continue to accrue holiday pay. The transcript is now available.
• click here for the Kigass Aero decision