Monday 26 January 2004

Dispute Resolution - Draft SI

Further to my bulletins dated 20th and 21st January, the draft statutory instrument containing the flesh of the dispute resolution procedures have now been published.

The snappily titled The Employment Act 2002 (Dispute Resolution) Regulations 2004 are available from the Stationery Office website (link below).

My seminar notes, which have been available to members of this list since the summer (link below), will be updated shortly to reflect the content of the new Regulations.

Friday 23 January 2004

Lawson v Serco - Court of Appeal

The Court of Appeal has, this morning, handed down judgment in Lawson v Serco They overturn the EAT's widely-criticised decision, which held that an employee working anywhere in the world can claim unfair dismissal against any employer, if that employer has a place of business in England or Wales, irrespective of the governing laws or where the employee works. The Court of Appeal invited submissions from the Foreign & Commonwealth Office due to the far-reaching implications of the judgment.

Pill LJ said the right not to be unfairly dismissed applies only to "employment in Great Britain" (para. 8), and that although the residence of the parties might be relevant, the emphasis must be upon the employment itself (para. 28).

In coming to that decision, he recognised that it might be difficult to establish whether that is satisfied in some cases. He expressly rejected the argument that jurisdiction can be governed or influenced by the contents of the ET Rules of Procedure (para. 23), and also rejected the "substantial connection" test (paras. 23+24) (impliedly overruling Jackson v Ghost). Finally, he rejected the "base" test (para. 27).

Wednesday 21 January 2004

Essa v Laing - Court of Appeal

The Court of Appeal has just handed down judgment in <>Essa v Laing.

Upholding the EAT's decision, it holds that an employee can recover for psychiatric injury flowing from an act of race discrimination, even where the employee's reaction is wholly extreme and unforeseeable.

Dispute Resolution - Draft ACAS Code

This bulletin follows on from yesterday's Email (dealing with the government's response to its consultation on the statutory dispute resolution procedures).

This morning, ACAS published the new draft Code of Practice on Disciplinary and Grievance Procedures. This will replace the existing Code of Practice, and it incorporates the minimum statutory and disciplinary procedures set out in the Employment Act 2002.

The draft Code has been published to give interested parties the opportunity to comment. Consultation closes on 14th April 2004.

Tuesday 20 January 2004

Dispute Resolution - Consultation Results

As subscribers will know, new mandatory dispute resolution procedures come into force in October 2004. Failure by an employer to follow the mandatory disciplinary procedure will render a dismissal automatically unfair and lead to an increase in compensation for employees. Failure by an employee to lodge a grievance will (normally) prevent an employee from bringing a tribunal claim.

The government issued a consultation paper in July 2003, seeking views on a large number of issues arising from the new procedures. The government's response to the consultation has been published this morning.

Key points are:
  • the disciplinary procedure will not apply to oral or written warnings, despite strong union representations to the contrary;
  • it has been made clear the 'modified procedure' will apply only in a very small sub-set of gross misconduct cases;
  • a formal definition of 'grievance' is introduced, namely "a complaint by an employee about action which his employer has or is contemplating taking in relation to him."
  • an extension will be introduced to the 3-month time limit for unfair dismissal claims, where the employee has reasonable grounds for believing a disciplinary procedure is still ongoing when the 3-month limit expires;
  • clarification of the overlap between disciplinary and grievance matters;

Interestingly, in paragraph 145 of the response, the DTI states "The government acknowledges that the Regulations are not simple..." - a far cry from the initial policy aim of a simple, straightforward disciplinary procedure to remove legal technicalities from the workplace.

Monday 19 January 2004

Priests to be given Employment Rights

... or at least, so says the BBC news website this morning.

According to the BBC, the Church of England has announced it will give clergy employment rights, including the right to paid holiday, redundancy payments and the right to claim unfair dismissal.

Section 23 of the Employment Relations Act 1999 authorises the Secretary of State to extend employment rights to categories of workers who are not currently protected by the employment legislation.

It has been mooted for some time that employment rights would be given to ministers of religion. But my reading of s23 does not suggest that the Church of England has power to introduce an SI implementing employment rights for priests. So the BBC may have been meaning to say that the Church of England will recommend to the Secretary of State that an Order under s23 should be made.

It is unclear where this leaves ministers of other religions. The point is not yet free from controversy, so be cautious if advising ministers (or religious establishments) as to imminent changes to the law.

Thursday 15 January 2004

Conduct of Employment Agencies Regulations

The DTI has, today, issued guidance on how the long-awaited Conduct of Employment Agencies and Employment Businesses Regulations 2003 Regulations will work.

They are due to come into force on 6th April 2004. The main implication for employment lawyers is the way in which it requires employment agencies / business to specify the employment status of any individual who obtains work through the agency / business (i.e. self-employed, employed). It also requires the agency / business to give written notice as to the terms and condition on which the individual is employed or engaged.

Wednesday 14 January 2004

Sychronised Dates

The DTI has, earlier today, published details of the Employment Regulations that are due to take effect in 2004.

They are split into two tranches, with harmonised commencement dates of 6th April and 1st October. This is a very useful guide to what's coming in the next 12 months.

Friday 9 January 2004

New EAT Decisions

The following decisions have been placed on the EAT website this morning.

Potter v RJ Temple (HHJ Richardson, 18/12/03)

The employee sent a letter of resignation (accepting an alleged repudiatory breach by the employer) to the employer's office by fax at 8.21pm on Friday 13th September. The office had closed, and the fax was not seen until the following week. If the EDT was 13th September, then the IT1 presented on 13th December was out of time. If the EDT was the following Monday, then the IT1 would have been presented in time.

In a clear and well-reasoned judgment, the EAT drew a distinction between the strict common-law position on communication of acceptance of repudiatory breach by fax, and the 'common-sense' position that was called for under the unfair dismissal legislation. It held that the resignation had been validly communicated on 13th September, and accordingly upheld the tribunal's finding that the unfair dismissal complaint had been presented out of time.


Health Development Agency v Parish (HHJ Richardson, 24/10/03)

Even when costs are awarded in respect of unreasonable conduct of proceedings, a tribunal must disregard any costs incurred before the IT1 (or, if the Respondent, the IT3) was lodged - irrespective of whether the party was acting unreasonably in the period before the pleading was lodged. Rule 14 does not confer power to award costs in respect of this early period. It is founded upon a finding as to the way a party has brought or conducted proceedings, and this assumes that proceedings have been brought.

Comment: This decision may be controversial. Whilst the tribunal has no jurisdiction to award costs in connection with unreasonable conduct if no proceedings are actually brought, there seems to be no valid reason why - once jurisdiction is triggered - the entire costs should not be recoverable. This decision will encourage (a) proceedings to be issued swiftly, when negotiations might otherwise prove fruitful, and (b) parties to delay their investigations, and matters such as taking preliminary witness proofs, until after proceedings have been started.

Monday 5 January 2004

EU Consultation on Working Time

The European Commission has opened a consultation on Working Time with a view to revising the Working Time Directive. This is triggered partly by recent ECJ decisions dealing with 'on-call' working time, and partly by a perception that the opt-out is being abused by employers or member states (primarily, according to the consultation document, by UK employers!).

The consultation asks for responses on 5 main issues, with a view to a future revision of the Directive:
  • the length of reference periods currently four months, with certain provisions allowing for 6 months or a year;
  • the definition of working time following recent European Court of Justice rulings on time spent on call
  • the conditions for the application of the opt-out
  • measures to improve the balance between work and family life
  • how to find the best balance of these measures.
The consultation closes on 31st March 2004.