Wednesday 27 September 2006

Its all happening Sunday...

Sunday, 1st October 2006 sees new employment legislation come into force. Here are the highlights...

Age Discrimination
Yup, we must have all missed that one. Full details here.

New rights for mums
Expectant women who are less than three months pregnant as on 1st October get various new rights with effect from 1st April 2007. Key points include six months' ordinary maternity leave, six months' additional maternity leave - irrespective of length of service. Also, employers can make 'reasonable' contact with women on maternity leave, without fear of being sued for constructive dismissal, sex discrimination and everything else under the sun. Likewise, women can do some work whilst on maternity leave without losing their entitlement to SMP. Importantly, those returning early from maternity leave will need to give eight weeks' notice (previously 28 days). Full details here.

It becomes a criminal offence for gangmasters to operate without a license. Frankly, I wouldn't know what an unlicensed gangmaster looked like if he kicked me in the teeth (which he probably would!).

Minimum Wage
Increases to £5.35 for those aged 22+, £4.45ph for 18-21 year olds, and £3.30ph for 16 and 17 year olds. Oh yes, and 25p ph for lawyers doing criminal legal aid. Details here.

Collective Redundancies
Section 193 of TULR(C)A 1992 is amended to provide that notice of redundancy must be given to the DTI at least 30 days before giving notice to terminate an employee's contract of employment (rather than before the actual dismissal date). Sounds like Junk to me (think about it!).

Age Discrimination - Superb Resources Page

The Age Positive website has put together a fantastic page of links and resources for age discrimination. Links/resources include:
  • precedent letters to employees
  • an age-bias free application form
  • all the official Acas and DTI guidance

View Age Positive Links / Resources Page (you'll need to scroll down to the bottom when you open the page)

Friday 8 September 2006

Statutory Dismissal Procedure

The EAT has handed down an important decision on the necessary content of a step 1 dismissal letter.

An employee was dismissed for being found in a company van, about to drive, having consumed alcohol. He was in breach of a 'zero tolerance' rule. The step 1 letter simply referred to ""conduct which fails to reasonably ensure Health and Safety of oneself and others."

The EAT held that that the letter was sufficient to comply with step 1 of the statutory dismissal procedure (adopting an analogous position to the grievance letter cases such as Shergold).

Further, if the words of what is put forward as a Step 1 letter are ambiguous or a Tribunal is doubtful as to whether they are sufficient, the Tribunal is entitled to look at the whole context, including whether the employee knew what the allegations against him were, in deciding whether there had been compliance with Step 1. Interestingly, the tribunal left open for another day the question of whether just putting 'misconduct' in the letter would suffice (para. 49).

Draper v Mears Ltd

Amending Claim Forms to add newly accrued claims

The EAT has held that it is permissible to amend a Claim Form, so as to include a claim which did not exist at the time the Claim Form was originally presented.

To put it more technically, an Employment Tribunal has jurisdiction to exercise its discretion to allow a claim that is presented prematurely to be amended so as to permit a claim to be included that could not have been included when the claim form was originally presented, because the claim had accrued at a later date. A claim may be presented pursuant to section 111(2) of the Employment Rights Act 1996 by way of amendment to an existing claim form as well as by the presentation of a claim form. The discretion to allow such an amendment must be exercised by the ET in accordance with the well-known principle set out in Selkent Bus Company v Moore.

This is an important procedural decision - previously it was standard practice for an employee to have to issue a second Claim Form and apply for the two cases to be heard together.

The EAT's reasoning is at paragraphs 61-63, and is very much a (sensible) policy argument.

The case is also authority for what might seem the uncontroversial proposition that a successful appeal against dismissal, taking place after a fixed term contract would otherwise have expired, does not have the effect of extending the employee's employment beyond the agreed date of expiry of the fixed term contract.

Prakash v Wolverhampton City Council