1. Legislation
2. Forthcoming issues
3. Cases
________________________________________
LEGISLATION
As notified by Henry Scrope on 29th July, the Employment Relations Act 1999 received Royal Assent last week (27th July). No sections have yet been brought into force.
Slightly better publicised in the press was the Disability Commission Act 1999, which also received Royal Assent on 27th July. This establishes a Disability Rights Commission which aims to eliminate discrimination against disabled people and keep the 1995 Act under review. The Commission should be formed before April 2000.
________________________________________
FORTHCOMING ISSUES
The Health & Safety Commission has issued a Code of Practice to consider prohibiting smoking in the workplace. It encourages employes to agree procedures to minimise exposure to smoke. Failure to adhere is evidence of negligence. Perhaps more importantly, it may strengthen 'SOSR' dismissals when rendering workplaces non-smoking. Comments by 29th October 1999. The Code is available at http://www.open.gov.uk/hse/condocs.
The CBI has warned employers that they may be liable for damage to workers' eyesight if they fail to warn them of the risks involved looking at the solar eclipse on 11th August. This may be somewhat dubious advice from a strictly legal point of view, but must be regarded as good practice. It is probably too late to notify clients formally!
________________________________________
RECENT CASES
Governing Body of Clifton Middle School v Askew, Times, 2nd August 1999, CA
Teachers are employed by local authorities, not school governors. Accordingly there is no TUPE transfer when a school is closed down and another school opened because there is no relevant change of employer.
Bernadone v Pall Mall Services, Times, 2nd August 1999, CA
When a TUPE transfer occurs, a transferor's tortious liability towards an employee injured at work, together with the benefit of the transferor's existing insurance policy, also transfer to the transferee.
Monday, 2 August 1999
Friday, 30 July 1999
DTI Proposals on Boardroom Pay
The DTI has this morning issued a consultation document containing proposals on boardroom pay and on limiting 'golden farewells' for directors.
The Press Release indicates that the consultation document contains the following proposals:
1. limiting notice or contract periods to one year (or less) unless there are exceptional reasons for a longer period;
2. strengthening disclosure provisions on service contracts by requiring companies to provide a clear explanation to shareholders of any compensation agreements agreed by the board following the departure of a director;
3. requiring quoted companies to ask shareholders to vote on its remuneration report every year, or enabling shareholders to move a resolution on remuneration at the AGM.
Stephen Byers, Secretary of State for Trade and Industry, said "Most people recognise the need to pay a 'golden hello' to attract the best but don't understand the need to pay a golden farewell for failure."
Replies to the consultation document should be received by 29th October 1999. According to the press release, the consultation document is available at http://www.dti.gov.uk/cld (but it was not there when I looked!)
The Press Release indicates that the consultation document contains the following proposals:
1. limiting notice or contract periods to one year (or less) unless there are exceptional reasons for a longer period;
2. strengthening disclosure provisions on service contracts by requiring companies to provide a clear explanation to shareholders of any compensation agreements agreed by the board following the departure of a director;
3. requiring quoted companies to ask shareholders to vote on its remuneration report every year, or enabling shareholders to move a resolution on remuneration at the AGM.
Stephen Byers, Secretary of State for Trade and Industry, said "Most people recognise the need to pay a 'golden hello' to attract the best but don't understand the need to pay a golden farewell for failure."
Replies to the consultation document should be received by 29th October 1999. According to the press release, the consultation document is available at http://www.dti.gov.uk/cld (but it was not there when I looked!)
Thursday, 29 July 1999
Employment Relations Bill
A complete copy of full text ERA 1996 marked up with all amendments made since enactment in May 1996, including amendments prospectively made by the 1999 Act, is available now on the "emplaw" internet site. Amendments are marked up in colour and annotated. It is downloadable.
We have been preparing this amended version of ERA 1996 since January 1999 when the first version of the ERB appeared. It is now on the professional area of our web site at www.emplaw.co.uk (passwords are required but cost only from £5 + VAT and can be bought on-line with a credit card via our ISP's secure server). I'd be very grateful if anyone who uses it felt able to make any comments in the guestbook on the site.
We have been preparing this amended version of ERA 1996 since January 1999 when the first version of the ERB appeared. It is now on the professional area of our web site at www.emplaw.co.uk (passwords are required but cost only from £5 + VAT and can be bought on-line with a credit card via our ISP's secure server). I'd be very grateful if anyone who uses it felt able to make any comments in the guestbook on the site.
This week's EAT decisions
Discrimination
LEICESTER CITY COUNCIL
v
MRS P McCONNELL
(EAT, 5th March 1999, Holland J.)
When determining whether race discrimination has occurred, an employment tribunal must find a comparator who is not in the racial group in question and where the relevant circumstances are not materially different. If an actual comparator cannot be found, the tribunal must consider the position of a hypothetical comparator.
Extract from judgment: "We reject the subtleties of Mr Segal's reply. In the absence of an actual comparator we see no difficulty in requiring a Industrial Tribunal as an industrial jury to compare the treatment found to be accorded by this employer to the Applicant with the treatment that would have been accorded to a person who is white but who otherwise shares the same characteristics. It is to be remembered that criminal juries are regularly asked to undertake just that intellectual exercise, for example when deciding whether murder is reduced to manslaughter by reason of provocation. Not only is this approach required, but (as this case demonstrates) comparison with a comparator (actual or notional) provides a vital intellectual discipline."
For a copy of the transcript, select http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/01ead573571930cd802567ba004f2511?OpenDocument
Discrimination
TOM SAWYER & ALL OTHER MEMBERS
OF THE LABOUR PARTY
v
MR R AHSAN
(EAT, 14th July 1999, Lindsay J.)
It is unlawful for a political party to discriminate on grounds of race in the selection of a candidate for a local councillor, under section 12 of the Race Relations Act 1976. An employment tribunal therefore has jurisdiction to hear such an allegation.
For a copy of the transcript, select http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/1729a1d037f0e08d802567b7003758b1?OpenDocument
Procedure
MRS M J BENYON & OTHERS
v
DAVID SCADDEN & OTHERS
(EAT, 14th June 1999, Lindsay J.)
This case confirms that it is legitimate, in appropriate cases, to take a backing trade union’s funds into account when making a costs order against an applicant. Moreover, there is nothing wrong in principle with ordering costs to be taxed on the indemnity basis.
For a copy of the transcript, select http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/1f60a27108ef26a4802567b7003b17fb?OpenDocument
Unfair Dismissal
VAUX BREWERIES LTD
v
MR I McNAUGHTON
(EAT, 23rd June 1999, HHJ Peter Clark)
Where a bar manager admits certain, but not all, allegations of sexual harassment against two members of the bar staff, it is within the range of reasonable responses for an employer to decide not to interview other members of staff (so as not to undermine confidence if dismissal did not occur) before deciding to dismiss the manager.
For a copy of the transcript, select
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/b16e38592d9c8a61802567bb004024db?OpenDocument
LEICESTER CITY COUNCIL
v
MRS P McCONNELL
(EAT, 5th March 1999, Holland J.)
When determining whether race discrimination has occurred, an employment tribunal must find a comparator who is not in the racial group in question and where the relevant circumstances are not materially different. If an actual comparator cannot be found, the tribunal must consider the position of a hypothetical comparator.
Extract from judgment: "We reject the subtleties of Mr Segal's reply. In the absence of an actual comparator we see no difficulty in requiring a Industrial Tribunal as an industrial jury to compare the treatment found to be accorded by this employer to the Applicant with the treatment that would have been accorded to a person who is white but who otherwise shares the same characteristics. It is to be remembered that criminal juries are regularly asked to undertake just that intellectual exercise, for example when deciding whether murder is reduced to manslaughter by reason of provocation. Not only is this approach required, but (as this case demonstrates) comparison with a comparator (actual or notional) provides a vital intellectual discipline."
For a copy of the transcript, select http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/01ead573571930cd802567ba004f2511?OpenDocument
Discrimination
TOM SAWYER & ALL OTHER MEMBERS
OF THE LABOUR PARTY
v
MR R AHSAN
(EAT, 14th July 1999, Lindsay J.)
It is unlawful for a political party to discriminate on grounds of race in the selection of a candidate for a local councillor, under section 12 of the Race Relations Act 1976. An employment tribunal therefore has jurisdiction to hear such an allegation.
For a copy of the transcript, select http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/1729a1d037f0e08d802567b7003758b1?OpenDocument
Procedure
MRS M J BENYON & OTHERS
v
DAVID SCADDEN & OTHERS
(EAT, 14th June 1999, Lindsay J.)
This case confirms that it is legitimate, in appropriate cases, to take a backing trade union’s funds into account when making a costs order against an applicant. Moreover, there is nothing wrong in principle with ordering costs to be taxed on the indemnity basis.
For a copy of the transcript, select http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/1f60a27108ef26a4802567b7003b17fb?OpenDocument
Unfair Dismissal
VAUX BREWERIES LTD
v
MR I McNAUGHTON
(EAT, 23rd June 1999, HHJ Peter Clark)
Where a bar manager admits certain, but not all, allegations of sexual harassment against two members of the bar staff, it is within the range of reasonable responses for an employer to decide not to interview other members of staff (so as not to undermine confidence if dismissal did not occur) before deciding to dismiss the manager.
For a copy of the transcript, select
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/b16e38592d9c8a61802567bb004024db?OpenDocument
Sunday, 25 July 1999
New cases
ECM (VEHICLE DELIVERY SERVICE) LTD
v
B COX & OTHERS
TUPE
Court of Appeal (Mummery, Laws and Henry LJJ), 22nd July 1999
The Court of Appeal held that when deciding whether a TUPE transfer has occurred, a tribunal should take the whole range of factors into account as in Spijkers. It is an error of law, and a misunderstanding of Betts and Suzen, to regard whether the transferor refused to re-employ ‘transferring’ employees as the dominant question.
This is consistent with the EAT’s decision in OCS v Rudden (see bulletin 19th July 1999). It may no longer be such good advice (if it ever was!) to inform employers that refusing to take on any members of the existing workforce will significantly increase their chance of avoiding a TUPE transfer.
MR J A LLOYD
v
TAYLOR WOODROW CONSTRUCTION
Redundancy
EAT. An appeal against selection for redundancy, by way of rehearing, can cure the procedural defect whereby workers were not told of the selection criteria until 8 weeks after the dismissal.
For the transcript, see
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/e1122416c4e82144802567b6004ca4c7?OpenDocument
TRIANGLE CARS
v
MISS A M HOOK
Unfair Dismissal
EAT. HHJ Altman confirms that tension between two employees is capable of being ‘some other substantial reason’ for a dismissal. However, this case is interesting because the tribunal hinted that the Polkey defence (i.e. s/he would probably have been dismissed even if a proper procedure had been followed) may not be applicable to unfair dismissal, as contrasted with redundancy, cases (para. 14).
For the transcript, see:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/2da23e6098cda045802567b50049f7f5?OpenDocument
v
B COX & OTHERS
TUPE
Court of Appeal (Mummery, Laws and Henry LJJ), 22nd July 1999
The Court of Appeal held that when deciding whether a TUPE transfer has occurred, a tribunal should take the whole range of factors into account as in Spijkers. It is an error of law, and a misunderstanding of Betts and Suzen, to regard whether the transferor refused to re-employ ‘transferring’ employees as the dominant question.
This is consistent with the EAT’s decision in OCS v Rudden (see bulletin 19th July 1999). It may no longer be such good advice (if it ever was!) to inform employers that refusing to take on any members of the existing workforce will significantly increase their chance of avoiding a TUPE transfer.
MR J A LLOYD
v
TAYLOR WOODROW CONSTRUCTION
Redundancy
EAT. An appeal against selection for redundancy, by way of rehearing, can cure the procedural defect whereby workers were not told of the selection criteria until 8 weeks after the dismissal.
For the transcript, see
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/e1122416c4e82144802567b6004ca4c7?OpenDocument
TRIANGLE CARS
v
MISS A M HOOK
Unfair Dismissal
EAT. HHJ Altman confirms that tension between two employees is capable of being ‘some other substantial reason’ for a dismissal. However, this case is interesting because the tribunal hinted that the Polkey defence (i.e. s/he would probably have been dismissed even if a proper procedure had been followed) may not be applicable to unfair dismissal, as contrasted with redundancy, cases (para. 14).
For the transcript, see:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/2da23e6098cda045802567b50049f7f5?OpenDocument
Monday, 19 July 1999
This week's EAT decisions
Contents
1. Summary of Decisions posted to EAT website this week.
2. Correction of previous posting
1. Summary of Decisions posted to EAT website this week
MR B HITCHCOCK
v
VALE CASTINGS LTD
Procedure: Submissions of ‘no case to answer’ should rarely be allowed
The transcript is available from:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/17e849b52d86b4f3802567af004971e6?OpenDocument
ANGUS COUNCIL
v
MR A EDGLEY
Unfair Dismissal: Although highly desirable, it is not mandatory for an employment tribunal to refer to the ‘range of reasonable responses’ test when determining whether a dismissal is fair or unfair.
The transcript is available from: http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/2fccc8b5d6bd1978802567af004f8e83?OpenDocument
OCS CLEANING SCOTLAND LTD
v
(1) PHILIP RUDDEN & 17 ORS
(2) OLSCOT LTD
TUPE: There is no rule of law stating that the re-employment (or offer to re-employ) a significant section of an existing workforce is a condition necessary before a transfer of undertakings of a labour-intensive business can occur. Insofar as people might have thought otherwise from Betts and Suzen – Betts dealt with an asset-reliant business, and Suzen had different facts!
Somewhat interestingly is the acknowledgement by Morison J. that:
"15. There is no doubt that the position in law in relation to transfers of undertakings is in a mess. The Süzen decision appears to conflict with the decision which the court had given earlier in the case of Schmidt yet it is asserted in the latter case that the former was still good law. In subsequent decisions of the court there is simply reference made to various paragraphs in their previous decisions and it would appear that there is going to be no more guidance from the European Court of Justice on the difficult question as to in what circumstances an economic entity retains its identity. That question is of particular importance and difficulty in a labour intensive business such as contract cleaning. Employment Tribunals are required to apply their minds to these questions. It is the President's view that where they have sought to apply the law as best they can, unless there has been an obvious misdirection the decision which they arrive at should be supported by the Employment Appeal Tribunal. This is such as case. We are unanimously of the view that this was a decision which the Employment Tribunal were entitled to arrive at."
Thus the EAT has made it clear it does not like TUPE appeals!
The transcript is available from:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/bf9f04ccde7c0831802567af0052aecd?OpenDocument.
2. Correction of previous posting
Henry Scrope, of DiscLaw Publishing, has pointed out an error in the posting dated 16th July 1999.
There has been an enabling clause in the Employment Rights Act 1996 allowing the government to extend employment rights to all workers (apart from the genuinely self-employed) for some time. It can currently be found at clause 23 of the Bill.
The ‘news’ element of the last posting should have been limited to detailing the research on workers / self-employed published last week by the Business Research and Faculty of Law at the University of Cambridge.
1. Summary of Decisions posted to EAT website this week.
2. Correction of previous posting
1. Summary of Decisions posted to EAT website this week
MR B HITCHCOCK
v
VALE CASTINGS LTD
Procedure: Submissions of ‘no case to answer’ should rarely be allowed
The transcript is available from:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/17e849b52d86b4f3802567af004971e6?OpenDocument
ANGUS COUNCIL
v
MR A EDGLEY
Unfair Dismissal: Although highly desirable, it is not mandatory for an employment tribunal to refer to the ‘range of reasonable responses’ test when determining whether a dismissal is fair or unfair.
The transcript is available from: http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/2fccc8b5d6bd1978802567af004f8e83?OpenDocument
OCS CLEANING SCOTLAND LTD
v
(1) PHILIP RUDDEN & 17 ORS
(2) OLSCOT LTD
TUPE: There is no rule of law stating that the re-employment (or offer to re-employ) a significant section of an existing workforce is a condition necessary before a transfer of undertakings of a labour-intensive business can occur. Insofar as people might have thought otherwise from Betts and Suzen – Betts dealt with an asset-reliant business, and Suzen had different facts!
Somewhat interestingly is the acknowledgement by Morison J. that:
"15. There is no doubt that the position in law in relation to transfers of undertakings is in a mess. The Süzen decision appears to conflict with the decision which the court had given earlier in the case of Schmidt yet it is asserted in the latter case that the former was still good law. In subsequent decisions of the court there is simply reference made to various paragraphs in their previous decisions and it would appear that there is going to be no more guidance from the European Court of Justice on the difficult question as to in what circumstances an economic entity retains its identity. That question is of particular importance and difficulty in a labour intensive business such as contract cleaning. Employment Tribunals are required to apply their minds to these questions. It is the President's view that where they have sought to apply the law as best they can, unless there has been an obvious misdirection the decision which they arrive at should be supported by the Employment Appeal Tribunal. This is such as case. We are unanimously of the view that this was a decision which the Employment Tribunal were entitled to arrive at."
Thus the EAT has made it clear it does not like TUPE appeals!
The transcript is available from:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/bf9f04ccde7c0831802567af0052aecd?OpenDocument.
2. Correction of previous posting
Henry Scrope, of DiscLaw Publishing, has pointed out an error in the posting dated 16th July 1999.
There has been an enabling clause in the Employment Rights Act 1996 allowing the government to extend employment rights to all workers (apart from the genuinely self-employed) for some time. It can currently be found at clause 23 of the Bill.
The ‘news’ element of the last posting should have been limited to detailing the research on workers / self-employed published last week by the Business Research and Faculty of Law at the University of Cambridge.
Friday, 16 July 1999
Extension of employment rights to some 'self-employed'
The government announced yesterday that it would introduce a new power under the Employment Relations Bill to extend some or all existing employment rights to all workers, apart from those who are genuinely self-employed.
The extension is intended to bring agency workers and temporary workers within the mainstream fold of employment law protection (they already have rights under the NMWA and WTR, assuming they fall within the definition of 'worker').
Research carried out by the Business Research and Faculty of Law at the University of Cambridge demonstrated that 86% of 'workers' perceive themselves as employees. However, under the current (vague) tests for distinguishing employees from self-employed, only 70% of true 'workers' fell within the definition of 'employee', and the status of the remaining 30% was unclear.
Employers, particularly agency employers, currently avoid giving their workers 'employee' status by two principal methods:
(1) the widespread use in contracts of 'waiver' or 'relabelling' clauses purporting to determine status; and,
(2) the use of terms denying that the employer has an obligation to provide work to the worker.
The government's proposal would prevent employers from being able to stop many employees from accruing rights under the 1996 ERA. It would also lead to a reduction in workloads for Employment Tribunals, since the exciting preliminary appointments to determine whether a worker was employed or self-employed would reduce significantly in number.
The extension is intended to bring agency workers and temporary workers within the mainstream fold of employment law protection (they already have rights under the NMWA and WTR, assuming they fall within the definition of 'worker').
Research carried out by the Business Research and Faculty of Law at the University of Cambridge demonstrated that 86% of 'workers' perceive themselves as employees. However, under the current (vague) tests for distinguishing employees from self-employed, only 70% of true 'workers' fell within the definition of 'employee', and the status of the remaining 30% was unclear.
Employers, particularly agency employers, currently avoid giving their workers 'employee' status by two principal methods:
(1) the widespread use in contracts of 'waiver' or 'relabelling' clauses purporting to determine status; and,
(2) the use of terms denying that the employer has an obligation to provide work to the worker.
The government's proposal would prevent employers from being able to stop many employees from accruing rights under the 1996 ERA. It would also lead to a reduction in workloads for Employment Tribunals, since the exciting preliminary appointments to determine whether a worker was employed or self-employed would reduce significantly in number.
Friday, 9 July 1999
Redundancy Test
The House of Lords has now (hopefully) laid to rest the function v contract test for determining whether a redundancy situation exists.
This case dealt with the defintion of redundancy in the Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965. This is identical to the wording of sections 98/139 of the Employment Rights Act 1996.
Following the approach in Safeway Stores v Burrell, Lord Irvine LC (giving the leading judgment) stated that previous decisions setting out the 'function' or 'contract' test missed the point. The wording of the Act was clear, and there were two questions for tribunals to consider:
(1) Did a certain economic state exist? (in this case, whether the requirements of the business for employees to carry out work of a particular kind had diminshed; and,. if so,
(2) Was the dismissal attributable, wholly or mainly, to that state of affairs (i.e. causation).
This case dealt with the defintion of redundancy in the Contracts of Employment and Redundancy Payments Act (Northern Ireland) 1965. This is identical to the wording of sections 98/139 of the Employment Rights Act 1996.
Following the approach in Safeway Stores v Burrell, Lord Irvine LC (giving the leading judgment) stated that previous decisions setting out the 'function' or 'contract' test missed the point. The wording of the Act was clear, and there were two questions for tribunals to consider:
(1) Did a certain economic state exist? (in this case, whether the requirements of the business for employees to carry out work of a particular kind had diminshed; and,. if so,
(2) Was the dismissal attributable, wholly or mainly, to that state of affairs (i.e. causation).
The Collective Redundancies and Transfer of Undertaking (Protection of Employment) (Amendment) Regulations 1999
An SI was laid before parliament on 7th July 1999 improving procedures for informing and consulting employee representatives when there are plans to make large-scale redundancies or TUPE transfers.
The Collective Redundancies and Transfer of Undertaking (Protection of Employment) (Amendment) Regulations 1999 (which will be allocated a number in the next few days) is to bring UK law into line with the Acquired Rights Directive and the Collective Redundancies Directive.
The Regulations apply to redundancies or transfers involving 20+ employees. It comes into force on 28th July 1999, but will not apply in respect of collective redundancies or business transfers occurring before 1st November 1999.
The main changes are as follows:
(1) Employers who recognise a trade union must in future consult that union and cannot just consult other representatives of the employees;
(2) Specific requirements are laid down for electing employee representatives to be consulted in cases where the employer does not recognise a union;
(3) It is made clear that representatives of all employees who may be affected should be consulted - not just those whom it is proposed to be made redundant;
(4) Representatives are given specific rights for time off work;
(5) Remedies are changed, for example the protective award is increased from 4 weeks to 13 weeks' pay.
The S.I. will be formally published by HMSO in the next few days. I will send out a copy by Email to anyone who asks me! (dbarnett@2gis.co.uk)
The Collective Redundancies and Transfer of Undertaking (Protection of Employment) (Amendment) Regulations 1999 (which will be allocated a number in the next few days) is to bring UK law into line with the Acquired Rights Directive and the Collective Redundancies Directive.
The Regulations apply to redundancies or transfers involving 20+ employees. It comes into force on 28th July 1999, but will not apply in respect of collective redundancies or business transfers occurring before 1st November 1999.
The main changes are as follows:
(1) Employers who recognise a trade union must in future consult that union and cannot just consult other representatives of the employees;
(2) Specific requirements are laid down for electing employee representatives to be consulted in cases where the employer does not recognise a union;
(3) It is made clear that representatives of all employees who may be affected should be consulted - not just those whom it is proposed to be made redundant;
(4) Representatives are given specific rights for time off work;
(5) Remedies are changed, for example the protective award is increased from 4 weeks to 13 weeks' pay.
The S.I. will be formally published by HMSO in the next few days. I will send out a copy by Email to anyone who asks me! (dbarnett@2gis.co.uk)
Thursday, 8 July 1999
Working Time Regulations
Two amendments are proposed:
(1) To disregard working time, for the purpose of the 48-hour week, where a worker is not required to work those hours by the employer. Thus white-collar managers who are contractually obliged to work 45 hours, but choose to work an additional unpaid 10 hours per week, would be regarded as working for 45 hours only and will not need to sign an 'opt-out' agreement. Normal overtime will still count as working time, because it is measured and the duration is determined by the employer. Only unpaid and, effectively, unrequested hours will be disregarded.
(2) The requirement for employers to keep records for opted-out workers, as to how many hours they are working, will be abolished.
The TUC has expressed concern that these amendments will permit unscrupulous employers to get around the intention of the Working Time Directive.
A copy of the consultation paper, which includes the draft S.I. giving effect to the amendments, is attached to this message (Adobe Acrobat 3.0 required).
Responses to the consultation paper are sought by 21st July 1999.
Thanks to Simon Jeffreys from Cameron McKenna for pointing me to this information.
(1) To disregard working time, for the purpose of the 48-hour week, where a worker is not required to work those hours by the employer. Thus white-collar managers who are contractually obliged to work 45 hours, but choose to work an additional unpaid 10 hours per week, would be regarded as working for 45 hours only and will not need to sign an 'opt-out' agreement. Normal overtime will still count as working time, because it is measured and the duration is determined by the employer. Only unpaid and, effectively, unrequested hours will be disregarded.
(2) The requirement for employers to keep records for opted-out workers, as to how many hours they are working, will be abolished.
The TUC has expressed concern that these amendments will permit unscrupulous employers to get around the intention of the Working Time Directive.
A copy of the consultation paper, which includes the draft S.I. giving effect to the amendments, is attached to this message (Adobe Acrobat 3.0 required).
Responses to the consultation paper are sought by 21st July 1999.
Thanks to Simon Jeffreys from Cameron McKenna for pointing me to this information.
Wednesday, 7 July 1999
EAT online
The Employment Appeal Tribunal now has a web site at http://www.employmentappeals.gov.uk/
Judgments are available in full text, indexed by type of case (Sex Discrimination, Transfer of Undertakings, Unfair Dismissal etc), Appellant, Respondent or Judge. These are available in html format. Other parts of the site are available in pdf format, including Cause Lists and forms.
There is also a good section written for non-lawyers, on whether there is cause for appeal and what the procedures are.
Judgments are available in full text, indexed by type of case (Sex Discrimination, Transfer of Undertakings, Unfair Dismissal etc), Appellant, Respondent or Judge. These are available in html format. Other parts of the site are available in pdf format, including Cause Lists and forms.
There is also a good section written for non-lawyers, on whether there is cause for appeal and what the procedures are.
EAT online
The Employment Appeal Tribunal now has a web site at http://www.employmentappeals.gov.uk/
Judgments are available in full text, indexed by type of case (Sex Discrimination, Transfer of Undertakings, Unfair Dismissal etc), Appellant, Respondent or Judge. These are available in html format. Other parts of the site are available in pdf format, including Cause Lists and forms.
There is also a good section written for non-lawyers, on whether there is cause for appeal and what the procedures are.
Judgments are available in full text, indexed by type of case (Sex Discrimination, Transfer of Undertakings, Unfair Dismissal etc), Appellant, Respondent or Judge. These are available in html format. Other parts of the site are available in pdf format, including Cause Lists and forms.
There is also a good section written for non-lawyers, on whether there is cause for appeal and what the procedures are.
Tuesday, 6 July 1999
Employment Law (UK) List
Employment Law (UK) List - http://danielbarnett.co.uk
Little of note has happened in the employment field since mid-June, hence the lack of bulletins over the last three weeks.
Members of the list are invited to send me summaries of any cases they are involved in, which might be of interest to other members (dbarnett@2gis.co.uk). You'll receive the benefit of knowing your name is being seen by about 150 employment solicitors, 15 barristers and a handful of journalists. If you prefer to remain anonymous, that's perfectly okay - just tell me!
Little of note has happened in the employment field since mid-June, hence the lack of bulletins over the last three weeks.
Members of the list are invited to send me summaries of any cases they are involved in, which might be of interest to other members (dbarnett@2gis.co.uk). You'll receive the benefit of knowing your name is being seen by about 150 employment solicitors, 15 barristers and a handful of journalists. If you prefer to remain anonymous, that's perfectly okay - just tell me!
Tuesday, 22 June 1999
New Web site
Employment Law (UK) List - http://danielbarnett.co.uk
I have set up a web site which contains a number of employment law links, assorted articles on aspects of employment law, and 'newsflash' versions of the bulletins which are sent automatically to subscribers to this list.
It also contains information about my practice!
I have set up a web site which contains a number of employment law links, assorted articles on aspects of employment law, and 'newsflash' versions of the bulletins which are sent automatically to subscribers to this list.
It also contains information about my practice!
Wednesday, 16 June 1999
Age Discrimination Code Published
Age Discrimination Code Published
The government published the long-awaited Code of Practice on Age Diversity on Employment this morning.
The Code is voluntary and (unlike the ACAS Codes of Practice) has no statutory basis. Critics of the code assert that it is toothless and will has no sanctions to encourage bad employers to comply with its provisions.
The Code sets out six areas in which good practice is advocated. These
are:
- Recruitment
- Selection
- Promotion
- Training & development
- Redundancy
- Retirement
Various guidelines are set out under each heading. They are unexciting (such as use objective job criteria, avoid using age limits or age range in job adverts and do not see age as the sole criterion when operating early retirement scheme), particularly in the light of the lengthy and wide consultation period that has been operating since last year.
Tony Blair states, in a Press Release issued this morning, Our country is getting older. Thats not a burden, it is an opportunity. Its our job as a government to seize that opportunity.
The governments refusal to introduce legislation, contrary to its express promise to the House of Commons on 9th February 1996, and its vague promise in the 1997 election manifesto, is to be regretted. There is an analysis of the history of age discrimination legislation and authorities in issue 8 of Employment Lawyer magazine (CCH Editions).
Copies of the Code of Practice are available from the internet on http://www.dfee.gov.uk/agediversity. For a copy of the above age discrimination article, please Email me at dbarnett@2gis.co.uk.
The government published the long-awaited Code of Practice on Age Diversity on Employment this morning.
The Code is voluntary and (unlike the ACAS Codes of Practice) has no statutory basis. Critics of the code assert that it is toothless and will has no sanctions to encourage bad employers to comply with its provisions.
The Code sets out six areas in which good practice is advocated. These
are:
- Recruitment
- Selection
- Promotion
- Training & development
- Redundancy
- Retirement
Various guidelines are set out under each heading. They are unexciting (such as use objective job criteria, avoid using age limits or age range in job adverts and do not see age as the sole criterion when operating early retirement scheme), particularly in the light of the lengthy and wide consultation period that has been operating since last year.
Tony Blair states, in a Press Release issued this morning, Our country is getting older. Thats not a burden, it is an opportunity. Its our job as a government to seize that opportunity.
The governments refusal to introduce legislation, contrary to its express promise to the House of Commons on 9th February 1996, and its vague promise in the 1997 election manifesto, is to be regretted. There is an analysis of the history of age discrimination legislation and authorities in issue 8 of Employment Lawyer magazine (CCH Editions).
Copies of the Code of Practice are available from the internet on http://www.dfee.gov.uk/agediversity. For a copy of the above age discrimination article, please Email me at dbarnett@2gis.co.uk.
Employment Agency Regulations - Consultation Document
Employment Agencies Regulations Consultation Document
A Consultation Document has been published by the DTI, containing draft Regulations to govern Employment Agencies (the Conduct of Employment Agencies and Employment Businesses Regulations 1999).
The draft Regulations are to be given effect under powers contained in the Employment Rights Bill. Much of the content consolidates the legislation from the Employment Agencies Act 1973 and subsidiary regulations, together with subsequent case-law. This consultation document refers to that legislation and acknowledges that "the industry has changed and expanded enormously since that time."
The new Regulations can be summarised as follows:
• agencies’ details (name and a statement that it is an employment agency) to be set out clearly in all correspondence;
• job-seekers entitled to clear, unambiguous terms making it clear who is employing them and on what basis;
• agencies to check the qualifications of job-seekers who must hold such qualifications to work, eg doctors, pilots;
• agencies to obtain references for applicants for certain jobs, eg working with children or the vulnerable;
• agencies not permitted to send job-seekers to hazardous work outside their experience or competence;
• increased protection for workers to ensure they are paid fully and on-time for work they have done;
• increased protection to safe-guard clients’ money;
Copies of the consultation document can be found at http://www.dti.gov.uk/IR/consultz.htm. Responses are required by 30th September 1999.
A Consultation Document has been published by the DTI, containing draft Regulations to govern Employment Agencies (the Conduct of Employment Agencies and Employment Businesses Regulations 1999).
The draft Regulations are to be given effect under powers contained in the Employment Rights Bill. Much of the content consolidates the legislation from the Employment Agencies Act 1973 and subsidiary regulations, together with subsequent case-law. This consultation document refers to that legislation and acknowledges that "the industry has changed and expanded enormously since that time."
The new Regulations can be summarised as follows:
• agencies’ details (name and a statement that it is an employment agency) to be set out clearly in all correspondence;
• job-seekers entitled to clear, unambiguous terms making it clear who is employing them and on what basis;
• agencies to check the qualifications of job-seekers who must hold such qualifications to work, eg doctors, pilots;
• agencies to obtain references for applicants for certain jobs, eg working with children or the vulnerable;
• agencies not permitted to send job-seekers to hazardous work outside their experience or competence;
• increased protection for workers to ensure they are paid fully and on-time for work they have done;
• increased protection to safe-guard clients’ money;
Copies of the consultation document can be found at http://www.dti.gov.uk/IR/consultz.htm. Responses are required by 30th September 1999.
Saturday, 12 June 1999
ECJ Judgment - Allen v Amalgamated Construction
The ECJ held on 2nd December in Allen v Amalgamated Construction that the Acquired Rights Directive applies to transfers of undertakings between companies which are members of the same group.
A transcript can be obtained from the ECJ web-site (which can be quite slow). Alternatively, there is a direct link from the employment law 'superportal' web page at www.emplaw.co.uk
.
Please note that the advertisements which have appeared recently at the footer of some of these messages are imposed by the ListBot server (which I use for distributing these bulletins) and do not form part of these bulletins. I am currently arranging to have them removed, but they may continue appearing for the next few weeks.
A transcript can be obtained from the ECJ web-site (which can be quite slow). Alternatively, there is a direct link from the employment law 'superportal' web page at www.emplaw.co.uk
Please note that the advertisements which have appeared recently at the footer of some of these messages are imposed by the ListBot server (which I use for distributing these bulletins) and do not form part of these bulletins. I am currently arranging to have them removed, but they may continue appearing for the next few weeks.
Friday, 11 June 1999
Public Interest Disclosure Act 1998 - commencement 2nd July 1999
Employment Law (UK) List - http://employment_law_UK.listbot.com
The Public Interest Disclosure Act 1998 will come into force on 2nd July 1999, according to the draft statutory instruments just announced to parliament.
Three draft S.I.s have been laid, which are being published by HMSO on 18th June. They are the Commencement Order (number not yet announced), the Compensation Order (SI 1999/1548) and the Prescribed Persons Order (SI 1999/1549).
The Act renders it unlawful to subject any worker who makes a qualifying disclosure to a detriment.
If such a worker is dismissed, the dismissal is automatically unfair.
There is to be no limit on the compensatory award.
The worker is only protected if the disclosure is made to his/her employer (or a government minister if the worker is a civil servant), a legal adviser, any person nominated by the employer, or any suitable person if the worker believes that disclosure to the employer would result in the evidence being concealed or destroyed. This list is a paraphrase of the categories set out in the legislation.
The information disclosed must fall into one of six categories. These include the commission (or likely commission) of a criminal offence, a failure (or likely failure) to comply with a legal obligation and the endangering (or likely endangering) of an individual's health and safety.
There are fairly strict requirements on the worker: for example, he/she must act in good faith, not be acting for personal gain and reasonably believe the information to be true.
Any attempt to avoid the provisions of the Act (i.e. a 'gagging' clause in a contract) will be void.
The Public Interest Disclosure Act 1998 will come into force on 2nd July 1999, according to the draft statutory instruments just announced to parliament.
Three draft S.I.s have been laid, which are being published by HMSO on 18th June. They are the Commencement Order (number not yet announced), the Compensation Order (SI 1999/1548) and the Prescribed Persons Order (SI 1999/1549).
The Act renders it unlawful to subject any worker who makes a qualifying disclosure to a detriment.
If such a worker is dismissed, the dismissal is automatically unfair.
There is to be no limit on the compensatory award.
The worker is only protected if the disclosure is made to his/her employer (or a government minister if the worker is a civil servant), a legal adviser, any person nominated by the employer, or any suitable person if the worker believes that disclosure to the employer would result in the evidence being concealed or destroyed. This list is a paraphrase of the categories set out in the legislation.
The information disclosed must fall into one of six categories. These include the commission (or likely commission) of a criminal offence, a failure (or likely failure) to comply with a legal obligation and the endangering (or likely endangering) of an individual's health and safety.
There are fairly strict requirements on the worker: for example, he/she must act in good faith, not be acting for personal gain and reasonably believe the information to be true.
Any attempt to avoid the provisions of the Act (i.e. a 'gagging' clause in a contract) will be void.
Monday, 24 May 1999
Qualifying Period
QUALIFYING PERIOD FOR UNFAIR DISMISSAL
The House of Lords (unsurprisingly) passed the S.I. reducing the qualifying period from two years to one year. The new period has effect for all dismissal where the EDT is on or after 1st June 1999.
A copy of the S.I. appears below.
Daniel Barnett
2 Gray's Inn Square Chambers
List Moderator
----------------------------------------------------------------------
Draft Statutory Instrument 1999 No.
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999
----------------------------------------------------------------------
Crown Copyright 1999
All Crown copyrights are reserved. The text may be downloaded freely to file or printer for the purposes of private reference, research or study without requiring specific prior permission. The text may also be used freely within value-added products without requiring specific prior permission, provided that the text is reproduced accurately, is not used in a misleading manner, and is accompanied by an acknowledgment of Crown copyright.
Applications for any other proposed use of this text should be made to the Copyright Unit, Her Majesty's Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ. For further details on the licensing of Crown and Parliamentary copyright material, see current guidance issued by Her Majesty's Stationery Office.
The text of this Internet version of the Statutory Instrument has been prepared to reflect the text as it was Made. The authoritative version is in printed form and is published by The Stationery Office Limited as the The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999, ISBN 0 11 082566 7, 1.00 sterling. For details of how to obtain a printed copy see How to obtain The Stationery Office Limited titles.
Draft Order laid before Parliament under section 236(3) of the Employment Rights Act 1996, for approval by resolution of each House of Parliament
----------------------------------------------------------------------
DRAFT STATUTORY INSTRUMENTS
----------------------------------------------------------------------
1999 No.
TERMS AND CONDITIONS OF EMPLOYMENT
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999
Laid before Parliament in draft
Made 1999
Coming into force 1st June 1999
Whereas a draft of the following Order was laid before Parliament in accordance with section 236(3) of the Employment Rights Act 1996[1] and approved by resolution of each House of Parliament:
Now, therefore, the Secretary of State, in exercise of the powers conferred on him by sections 209(1)(c) and (5), and 236(5) of the Employment Rights Act 1996, hereby makes the following Order:-
Citation, commencement and interpretation
1. - (1) This Order may be cited as the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order
1999 and shall come into force on 1st June 1999.
(2) In this Order, "the 1996 Act" means the Employment Rights Act 1996.
Qualifying period for written statement of reasons for dismissal
2. Section 92(3) of the 1996 Act is varied so that for the reference to "two years" there is substituted a reference to "one year".
Qualifying period for unfair dismissal
3. Section 108(1) of the 1996 Act is varied so that for the reference to "two years" there is substituted a reference to "one year".
4. Section 108(2) of the 1996 Act is varied so that for the reference to ""two years"" there is substituted a reference to ""one year";".
Transitional provision
5. The provisions of articles 2 and 3 of this Order shall have effect in all cases where the effective date of termination falls on or after 1st June 1999.
Signed by order of the Secretary of State
Department of Trade and Industry
1999
----------------------------------------------------------------------
EXPLANATORY NOTE
(This note is not part of the Order)
This Order, which comes into force on 1st June 1999, lowers the qualifying period of continuous employment needed to acquire the right not to be unfairly dismissed from two years to one year. It also lowers the qualifying period of continuous employment needed for the entitlement, on request, to a written statement of reasons for dismissal from two years to one year.
The Order contains a transitional provision having the effect that the new qualifying periods will apply to all employees whose effective date of termination, within the meaning of section 97 of the Employment Rights Act 1996, falls on or after 1st June 1999.
----------------------------------------------------------------------
Notes:
[1] 1996 c. 18.back
The House of Lords (unsurprisingly) passed the S.I. reducing the qualifying period from two years to one year. The new period has effect for all dismissal where the EDT is on or after 1st June 1999.
A copy of the S.I. appears below.
Daniel Barnett
2 Gray's Inn Square Chambers
List Moderator
----------------------------------------------------------------------
Draft Statutory Instrument 1999 No.
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999
----------------------------------------------------------------------
Crown Copyright 1999
All Crown copyrights are reserved. The text may be downloaded freely to file or printer for the purposes of private reference, research or study without requiring specific prior permission. The text may also be used freely within value-added products without requiring specific prior permission, provided that the text is reproduced accurately, is not used in a misleading manner, and is accompanied by an acknowledgment of Crown copyright.
Applications for any other proposed use of this text should be made to the Copyright Unit, Her Majesty's Stationery Office, St Clements House, 2-16 Colegate, Norwich NR3 1BQ. For further details on the licensing of Crown and Parliamentary copyright material, see current guidance issued by Her Majesty's Stationery Office.
The text of this Internet version of the Statutory Instrument has been prepared to reflect the text as it was Made. The authoritative version is in printed form and is published by The Stationery Office Limited as the The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999, ISBN 0 11 082566 7, 1.00 sterling. For details of how to obtain a printed copy see How to obtain The Stationery Office Limited titles.
Draft Order laid before Parliament under section 236(3) of the Employment Rights Act 1996, for approval by resolution of each House of Parliament
----------------------------------------------------------------------
DRAFT STATUTORY INSTRUMENTS
----------------------------------------------------------------------
1999 No.
TERMS AND CONDITIONS OF EMPLOYMENT
The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999
Laid before Parliament in draft
Made 1999
Coming into force 1st June 1999
Whereas a draft of the following Order was laid before Parliament in accordance with section 236(3) of the Employment Rights Act 1996[1] and approved by resolution of each House of Parliament:
Now, therefore, the Secretary of State, in exercise of the powers conferred on him by sections 209(1)(c) and (5), and 236(5) of the Employment Rights Act 1996, hereby makes the following Order:-
Citation, commencement and interpretation
1. - (1) This Order may be cited as the Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order
1999 and shall come into force on 1st June 1999.
(2) In this Order, "the 1996 Act" means the Employment Rights Act 1996.
Qualifying period for written statement of reasons for dismissal
2. Section 92(3) of the 1996 Act is varied so that for the reference to "two years" there is substituted a reference to "one year".
Qualifying period for unfair dismissal
3. Section 108(1) of the 1996 Act is varied so that for the reference to "two years" there is substituted a reference to "one year".
4. Section 108(2) of the 1996 Act is varied so that for the reference to ""two years"" there is substituted a reference to ""one year";".
Transitional provision
5. The provisions of articles 2 and 3 of this Order shall have effect in all cases where the effective date of termination falls on or after 1st June 1999.
Signed by order of the Secretary of State
Department of Trade and Industry
1999
----------------------------------------------------------------------
EXPLANATORY NOTE
(This note is not part of the Order)
This Order, which comes into force on 1st June 1999, lowers the qualifying period of continuous employment needed to acquire the right not to be unfairly dismissed from two years to one year. It also lowers the qualifying period of continuous employment needed for the entitlement, on request, to a written statement of reasons for dismissal from two years to one year.
The Order contains a transitional provision having the effect that the new qualifying periods will apply to all employees whose effective date of termination, within the meaning of section 97 of the Employment Rights Act 1996, falls on or after 1st June 1999.
----------------------------------------------------------------------
Notes:
[1] 1996 c. 18.back
Monday, 17 May 1999
Qualifying Period
Employment Law (UK) List
The S.I. reducing the qualifying period for unfair dismissal to one year (with effect for all EDT's after 1st June 1999) was passed last week in the commons.
It is to be debated in the Lords on Friday.
Kudos to the first person to e-mail when the result is known (with the SI number as proof!)
The S.I. reducing the qualifying period for unfair dismissal to one year (with effect for all EDT's after 1st June 1999) was passed last week in the commons.
It is to be debated in the Lords on Friday.
Kudos to the first person to e-mail when the result is known (with the SI number as proof!)
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