Monday 29 July 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.

Thursday 25 July 2002

New EAT Decisions

The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.

The Chief Constable of Cumbria v McGlennon (Mr Commissioner Howell QC, 15/7/02)

An important case on whether the Liversidge principle applies to sex discrimination claims.

Chief Constable of Bedfordshire v Liversidge (Court of Appeal, currently being appealed to the House of Lords) provides that the Race Relations Act 1976 does not make the chief constable of a police force liable for racial harassment upon a police officer by other officers in his command. The decision is based on the literal interpretation of the liability sections of the Race Relations Act 1976.

It has been unclear whether the same bar applies in sex discrimination claims because, although the wording of the SDA 1975 is identical, it must be interpreted in accordance with different principles, i.e. in accordance with the Equal Treatment Directive.

The EAT has now held in McGlennon that the answer is the same, and that a chief constable is not primarily liable for acts of sexual harassment by one officer against another. Nor can the Applicant rely on the direct effect of the Equal Treatment Directive.

However, the EAT goes on to say that where the discriminatory act is an administrative one, being done by a subordinate officer on the chief constable's behalf (as in this case, where the issue was a transfer from one police station to another), then the act (i.e. the decision to transfer) can properly be said to be that of the chief constable himself - and thus liability exists.

I am involved in a number of these cases and cannot comment further (for fear my opponents will print off what I say and use it against me!). This case is mandatory reading for anyone with a sex discrimination claim against the police.

The Chief Constable has been given permission to appeal to the Court of Appeal (although I understand he has not yet decided whether to pursue an appeal).

Morton v School Pictures International (HHJ Peter Clark, 17/5/02)

It is not mandatory for an issue which is raised in the IT1 to be formally determined by a tribunal, if it is not actively pursued during the course of the tribunal hearing.

Wednesday 24 July 2002

'Rolled Up' Holiday Pay Decision

Blackburn v Gridquest (CA, 23/7/02)

The Court of Appeal has given its decision in Gridquest, holding that it is not permissible to 'roll-up' holiday pay within ordinary weekly remuneration in circumstances where there was no express agreement to that effect.

Thus if an employer pays (say) £5.30ph to an employee, of which £5 is intended to represent basic wage and 30p intended to represent holiday pay, then the employer remains obliged to pay a full four weeks' annual holiday pay based upon £5.30ph. It cannot have credit for the 30p payments that have been made during the year.

The position remains unclear where employer and employee have expressly agreed that an element of the weekly wage should represent rolled-up holiday pay.

The decision is not yet available on the internet, but will soon be published at

Friday 19 July 2002

New TUPE Decision

Key Communications v Rose & others (EAT, Maurice Kay J., 5th July 2002)

An interesting TUPE decision on the meaning of "a transfer of an undertaking...may be effected by a series of two or more transactions".


An insolvent business was purchased by Key Communications from the receivers on 24th December 1998. During the negotiations, Key Communications agreed that it would sell the business on to another company, Impact, which had been unable to raise the funds sufficiently swiftly to meet the receivers' needs.

The employees of the business were not taken by Key Communications on 24th December 1998 (the date of the first sale).

The business was sold on by Key Communications to Impact on 19th April 1999.

The Employment Tribunal Decision

The employment tribunal found there had been a TUPE transfer from Key Communications to Impact on 19th April 1999. However, because the employees had not been taken on by Key Communications on 24th December 1998, they were not employed by Key Communications at the date of the transfer on 19th April 1999 - and thus did not transfer across to Impact. Accordingly Key remained liable for redundancy (and possibly unfair dismissal) payments.

The Employment Appeal Tribunal Decision

The EAT held that the ET had not properly considered the impact of TUPE reg3(4), namely that "a transfer of an undertaking...may be effected by a series of two or more transactions".

The ET had been wrong to rely on the four month gap between the transfers as meaning there was no 'series' of transactions. It had always been contemplated by Key Communications and Impact that the transaction would take effect as part of a series. There was no statutory necessity for the further transaction to take place immediately.

Accordingly the appeal was allowed.

The decision can be seen at

Thursday 11 July 2002

And They're Out...

We all knew they were coming, and on a warm Thursday afternoon the DTI has released a flood of consultation papers on proposed changes to employment legislation.

The various consultation papers cover:
• employment status in relation to employment rights
• a review of the Employment Relations Act 1999 (this has not yet been issued as a consultation paper, but the terms of reference have been published)
• fixed term workers (again!)
• flexible working
• the Information and Consultation Directive; and,
• a review of the UK labour market
Note that there whilst the upper limit for the compensatory award is up for review (as part of the Employment Relations Act 1999), there has been no consultation sought on the qualifying period for unfair dismissal. So it looks like that might be staying at one year.

The consultation papers are all available at

Wednesday 10 July 2002

Employment Act 2002

The Employment Bill received Royal Assent yesterday, becoming the Employment Act 2002. It will come into force in April 2003.

I reproduce, below, a summary of the provisions of the Act from (with permission of DiscLaw Publishing Ltd.). Free 24-hour trial passwords are available for those who wish full access to the professional area of the site - just Email (please do not reply to this Email).

Tuesday 9 July 2002

New EAT Decisions

Kyndall Spirits v Burns (EAT 27/6/02, Lord Johnston)
There is a duty on an employer to expressly raise the issue of mitigation of loss, if it wants to rely on it. The decision in Morganite Electrical Carbon Ltd v Donne [1987] IRLR 363, which states that a tribunal must consider mitigation whether raised by the employer or not, is wrong.

Skelton v Christian Salvesen (EAT 27/6/02, Lord Johnston)
The representative from the employer, who was providing instructions to the solicitor conducting the case, sat as a lay member on employment tribunals. He was (it seems) known to the panel of three who heard the case at first instance and found in favour of the employer. The employee appealed on the grounds of bias. The EAT dismissed the appeal, on the basis that:
a. a distinction must be drawn between professional and social acquaintances; with the former, there is no presumption of bias; and,
b. in any event, public policy prevents that argument succeeding because otherwise lay members of tribunals would never be able to appear in cases, whether as a representative or to give evidence.

Tuesday 2 July 2002

Agency Workers: Consultation Document

The government has issued a consultation document on how best to implement the EC Agency Workers Directive (see bulletins of 20th March and 22nd March 2002).

It appears from the DTI commentary that the DTI intends to take advantage of the exemption providing that the equal treatment requirement need not apply to agency workers who work on a task (or series of tasks) that will last less than six weeks.

The full consultation documents is available at . Responses are sought by not later than 18th October 2002.