The Income Tax (Earnings and Pensions) Bill, referred to in my bulletin dated 5/12/02, has now been enacted and is available on the internet. It is known, unsurprisingly, as the Income Tax (Earnings and Pensions) Act 2003. It came into force on 6th April 2003.
It repeals and replaces the dearly loved employment sections of the Income and Corporation Taxes Act 1988 (including ss19 and 148). The substantive law is essentially unchanged; the wording has been tidied up and the section numbers now differ.
The two sections of the ITEPA 2003 which are of principal relevance to employment lawyers are:=
- section 6, which charges tax on employment income. This is defined, in section 62, as:
(a) any salary, wages or fee,
(b) any gratuity or other profit or incidental benefit of any kind obtained by the employee if it is money or money E28099s worth, or
(c) anything else that constitutes an emolument of employment.
and
- section 401, which charges tax on payments made in respect of E2809Ct he termination of a person E28099s employment E2809D insofar as they exceed C2A330,000 (section 403).=
It is important that firms review their compromise agreements to ensure they contain the correct statutory references.
Thursday, 15 May 2003
Johnson v Unisys Damages
THIS IS AN IMPORTANT BULLETIN
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplem entary bulletin with the link when it becomes available.
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplem entary bulletin with the link when it becomes available.
Johnson v Unisys Damages
THIS IS AN IMPORTANT BULLETIN
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplementary bulletin with the link when it becomes available.
The Employment Appeal Tribunal has, this morning, handed down its decision in Dunnachie v Kingston upon Hull City Council (& conjoined appeals).
It has held that non-pecuniary losses are not recoverable in employment tribunals in unfair dismissal claims. Thus tribunals cannot award damages for personal injuries, aggravation and injury to feelings caused by the manner (or, indeed, fact) of dismissal, as has been the increasing trend since Lord Hoffman's speech in Johnson v Unisys.
Burton J.'s reasoning, which spans over 50 pages, can be summarised in three sentences (as he does in his conclusion), namely:
1. Prior to Johnson, there has been no recovery for non-economic losses in claims for unfair dismissal in employment tribunals;
2. Lord Hoffman's views in Johnson were obiter, therefore Johnson does not require a change in the law; and,
3. having considered the construction of the statute, and the underlying policy arguments, the compensation regime for unfair dismissal is limited to economic losses only and does not extend to damages for personal injuries or injury to feelings.
The transcript is not yet available on the internet. I will send a supplementary bulletin with the link when it becomes available.
Wednesday, 14 May 2003
Draft Disability Discrimination Regulations
The draft Disability Discrimination Act 1995 (Amendment) Regulations 2003 h ave been published on the Stationery Office website.
On a quick glance, the snappily titled Regulations include some pretty wide-sweeping changes, including a change to the definition of 'discrimination', a prohibition on harassment, the (well-known) abolition of the small business exemption, minor tweaks to rules on discrimination against contract workers, an extension of the act to police, barristers and advocates, and add itional regulation dealing with what may - and may not - amount to reasonable adjustments.
If anybody would like to produce a summary of the precise changes made by the Regulations, I will happily distribute it. I have no intention of doing it myself!
The draft Regulations are to come into force (subject to being passed) on 1st October 2004.
On a quick glance, the snappily titled Regulations include some pretty wide-sweeping changes, including a change to the definition of 'discrimination', a prohibition on harassment, the (well-known) abolition of the small business exemption, minor tweaks to rules on discrimination against contract workers, an extension of the act to police, barristers and advocates, and add itional regulation dealing with what may - and may not - amount to reasonable adjustments.
If anybody would like to produce a summary of the precise changes made by the Regulations, I will happily distribute it. I have no intention of doing it myself!
The draft Regulations are to come into force (subject to being passed) on 1st October 2004.
Tuesday, 13 May 2003
New EAT Decision - another Liversidge case
[A job advertisement for Whittles, Manchester, appears at the end of this bulletin]
Chief Constable of Kent County Constabulary v Baskerville (HHJ McMullen, 14/4/03)
-------------------------------------------------
Another decision on the mess created by the Liversidge and McGlennon series of cases, holding that chief constables are not vicariously liable for acts of harassment by one police officer upon another, but may be liable for discrimination in the discharge of administrative or management functions carried out by superior officers on behalf of the chief constable.
This case repeats that distinction but emphsises that it will normally be (a) inappropriate to strike out these cases before hearing the evidence, and (b) will normally be appropriate to allow amendments to include a Burton v De Vere argument.
Interestingly, whilst not expressly overruling this aspect of McGlennon, the EAT casts doubt upon its previous decision that the Equal Treatment Directive cannot be used as an interpretative tool in giving a purposive approach to construing the relevant aspects of the SDA 1975.
For further information on the Liversidge series of cases, see bulletins da= ted 25/7/02 and 11/12/02.
Chief Constable of Kent County Constabulary v Baskerville (HHJ McMullen, 14/4/03)
-------------------------------------------------
Another decision on the mess created by the Liversidge and McGlennon series of cases, holding that chief constables are not vicariously liable for acts of harassment by one police officer upon another, but may be liable for discrimination in the discharge of administrative or management functions carried out by superior officers on behalf of the chief constable.
This case repeats that distinction but emphsises that it will normally be (a) inappropriate to strike out these cases before hearing the evidence, and (b) will normally be appropriate to allow amendments to include a Burton v De Vere argument.
Interestingly, whilst not expressly overruling this aspect of McGlennon, the EAT casts doubt upon its previous decision that the Equal Treatment Directive cannot be used as an interpretative tool in giving a purposive approach to construing the relevant aspects of the SDA 1975.
For further information on the Liversidge series of cases, see bulletins da= ted 25/7/02 and 11/12/02.
Friday, 2 May 2003
New EAT Decisions
[A job advertisement for Islington Law Centre appears at the end of this bulletin]
Nottinghamshire Healthcare NHS Trust v Prison Officers' Association
(&716 others)
(Keith J., 4/4/03)
An important decision dealing with the common practice of issuing an originating application attaching a list of multiple applicants (in this case, 716 members of the Prison Officers' Association).
The POA, facing a time-limit problem, issued an IT1 claiming unfair dismissal and failure to consult on behalf of 716 members. It subsequently wrote to those members asking them to confirm they wanted the claims to proceed. It was common ground that those who did not reply had their claims treated as withdrawn.
336 members gave approval after the time limit had expired. The employer applied to strike out their claims on the basis that:
(a) the originating applications had been presented without their authority;
(b) when they purported to ratify the claims, time had expired; and,
(c) because time had expired, the purported ratification was of no effect.
After extensive consideration of the authorities, the EAT held that the applications were valid: the fact that the ratification was provided after expiry of the time limit did not mean that the Originating Applications lodged within the time period were of no effect.
Ree v Redrow Homes (HHJ Prophet, 9/4/03)
A short decision which extends the Burton v De Vere principle (i.e. that an employer can be liable for sex and race discrimination by non-employees, if he has some degree of control over those
non-employees) to claims under the Disability Discrimination Act 1995.
Recognising that the decision was controversial (because of different wording in the DDA which, on its face, makes a Burton v De Vere argument difficult), the EAT granted permission to appeal to the Court of Appeal.
Pacific Direct v Riaz (HHJ Peter Clark, 14/4/03)
Another short decision, being authority for the propositions that:
(a) when an unfairly dismissed employee suffers a fire in her house,
at which she has set up a new business to try to mitigate her losses, that fire does not (of itself) break the chain of causation for loss of earnings; and,
(b) tribunals are not obliged to accept an employee's estimate of future earnings when determining future loss of earnings, particularly where that estimate is given off the cuff in oral evidence. They are entitled to make findings more favourable to the Applicant than her own projections.
Nottinghamshire Healthcare NHS Trust v Prison Officers' Association
(&716 others)
(Keith J., 4/4/03)
An important decision dealing with the common practice of issuing an originating application attaching a list of multiple applicants (in this case, 716 members of the Prison Officers' Association).
The POA, facing a time-limit problem, issued an IT1 claiming unfair dismissal and failure to consult on behalf of 716 members. It subsequently wrote to those members asking them to confirm they wanted the claims to proceed. It was common ground that those who did not reply had their claims treated as withdrawn.
336 members gave approval after the time limit had expired. The employer applied to strike out their claims on the basis that:
(a) the originating applications had been presented without their authority;
(b) when they purported to ratify the claims, time had expired; and,
(c) because time had expired, the purported ratification was of no effect.
After extensive consideration of the authorities, the EAT held that the applications were valid: the fact that the ratification was provided after expiry of the time limit did not mean that the Originating Applications lodged within the time period were of no effect.
Ree v Redrow Homes (HHJ Prophet, 9/4/03)
A short decision which extends the Burton v De Vere principle (i.e. that an employer can be liable for sex and race discrimination by non-employees, if he has some degree of control over those
non-employees) to claims under the Disability Discrimination Act 1995.
Recognising that the decision was controversial (because of different wording in the DDA which, on its face, makes a Burton v De Vere argument difficult), the EAT granted permission to appeal to the Court of Appeal.
Pacific Direct v Riaz (HHJ Peter Clark, 14/4/03)
Another short decision, being authority for the propositions that:
(a) when an unfairly dismissed employee suffers a fire in her house,
at which she has set up a new business to try to mitigate her losses, that fire does not (of itself) break the chain of causation for loss of earnings; and,
(b) tribunals are not obliged to accept an employee's estimate of future earnings when determining future loss of earnings, particularly where that estimate is given off the cuff in oral evidence. They are entitled to make findings more favourable to the Applicant than her own projections.
Wednesday, 16 April 2003
New EAT Decisions
[An advertisement for the postgraduate certificate/diploma and LLM at the Robert Gordon University, Aberdeen appears at the end of this bulletin]
Bamsey v Albion Engineering (HHJ Ansell, 27/3/03) --------------------------------------------------
Authority for the proposition that, when calculating holiday pay under the Working Time Regulations 1998, an employer should exclude the value of over time which is not contractually guaranteed, even if the employee habitually works the overtime.
This decision is an example of statutory construction at its most polished level, and is worth reading just to appreciate the difficulty of some of the issues faced when construing conflicting UK and EC law. Leave has been given to appeal to the Court of Appeal.
This case deals with the definition of redundancy. The Glamorgan Holiday Hotel, due to a fall-off in business, sought to impose a unilateral variation to all workers' contracts, reducing the number of working weeks in the year from 52 to 42. Most employees accepted the new terms; seven did not and= were dismissed. They claimed redundancy payments.
The EAT upheld the tribunal's decision that they were not redundant within the meaning of s139 of the Employment Rights Act 1996. There was no diminution in the need for employees to carry out work of a particular kind; the = same number of employees were still needed, even if they were needed for fewer weeks in the year. Accordingly they were not redundant and could not claim a redundancy payment.
Bamsey v Albion Engineering (HHJ Ansell, 27/3/03) --------------------------------------------------
Authority for the proposition that, when calculating holiday pay under the Working Time Regulations 1998, an employer should exclude the value of over time which is not contractually guaranteed, even if the employee habitually works the overtime.
This decision is an example of statutory construction at its most polished level, and is worth reading just to appreciate the difficulty of some of the issues faced when construing conflicting UK and EC law. Leave has been given to appeal to the Court of Appeal.
This case deals with the definition of redundancy. The Glamorgan Holiday Hotel, due to a fall-off in business, sought to impose a unilateral variation to all workers' contracts, reducing the number of working weeks in the year from 52 to 42. Most employees accepted the new terms; seven did not and= were dismissed. They claimed redundancy payments.
The EAT upheld the tribunal's decision that they were not redundant within the meaning of s139 of the Employment Rights Act 1996. There was no diminution in the need for employees to carry out work of a particular kind; the = same number of employees were still needed, even if they were needed for fewer weeks in the year. Accordingly they were not redundant and could not claim a redundancy payment.
Friday, 11 April 2003
Equal Pay Questionnaire
The new Equal Pay Questionnaire is available on the internet as a Word file.
It is available from the Women & Equality Unit's website at
http://www.wome= nandequalityunit.gov.uk/pay/update_question.htm
It is available from the Women & Equality Unit's website at
http://www.wome= nandequalityunit.gov.uk/pay/update_question.htm
Agency Workers
Another decision on agency workers (see bulletin 26/3/03) - this time from the Court of Appeal.
It is authority for the proposition that an implied employment relationship may arise between 'temp worker' and the 'client' of the temp agency. It supports the 'status' rather than 'contract' approach to determining who is an employee.
In Franks v Reuters, Mr Franks initially went to work as a 'temp' for Reuters via an employment agency. In the event, he ended up working for five years for Reuters before his engagement was terminated. He was paid (as is normal) by the agency, but subject to the day to day control of Reuters.
The tribunal found there was no contract of employment between Mr Franks and Reuters, thus no mutuality of obligation - and therefore he could not be an employee. The EAT agreed.
The Court of Appeal (Mummery LJ) held that the employment tribunal failed to consider whether there was an implied contract of employment which had come about through conduct. Interestingly, whilst accepting that mere length of service did not confer employment status, Mummery LJ accepted a submission that dealings over a period of years (as contrasted with weeks or months, as with most temp workers) "are capable of generating an implied contrac tual relationship. (para 29)".
The case was therefore remitted back to the tribunal for consideration as to whether an implied contract of employment existed.
It is authority for the proposition that an implied employment relationship may arise between 'temp worker' and the 'client' of the temp agency. It supports the 'status' rather than 'contract' approach to determining who is an employee.
In Franks v Reuters, Mr Franks initially went to work as a 'temp' for Reuters via an employment agency. In the event, he ended up working for five years for Reuters before his engagement was terminated. He was paid (as is normal) by the agency, but subject to the day to day control of Reuters.
The tribunal found there was no contract of employment between Mr Franks and Reuters, thus no mutuality of obligation - and therefore he could not be an employee. The EAT agreed.
The Court of Appeal (Mummery LJ) held that the employment tribunal failed to consider whether there was an implied contract of employment which had come about through conduct. Interestingly, whilst accepting that mere length of service did not confer employment status, Mummery LJ accepted a submission that dealings over a period of years (as contrasted with weeks or months, as with most temp workers) "are capable of generating an implied contrac tual relationship. (para 29)".
The case was therefore remitted back to the tribunal for consideration as to whether an implied contract of employment existed.
Tuesday, 8 April 2003
'Rolled Up' Holiday Pay
[A job advertisement for Taylor Vinters appears at the end of this bulletin]
The Scottish Court of Session (equivalent to the Court of Appeal) has handed down its decision in MPB Structures Ltd v Munro.
It is authority for the proposition that it is unlawful, under the Working Time Regulations, to provide 'rolled-up' holiday pay instead of allowing workers to have four weeks' pay when the holiday is taken.
Some employers, particularly in high-turnover industries, provide a 'rolled-up' hourly rate which includes an element for holiday pay. They then do not pay monies whilst the employee takes his holiday, on the basis that they have already been paid it.
MPB Structures paid a rate of =C2=A310ph, which represented (approximately)
C2A39.25 salary and C2A30.75 specifically for holiday pay. The Court of Session ruled that this was contrary to the Regulations, and that the company was still obliged to make a payment of holiday pay during the four weeks' paid holiday under the Working Time Regulations. The payment of C2A30.75ph could not be set-off against this obligation.
This answers the question which the Court of Appeal largely left open in Gridquest v Blackburn (see bulletin 24/7/02). The question of whether a company, in these circumstances, can recover the 'overpaid' salary of C2A30.7 5ph remains open (but, in my view, is doubtful - a court would probably say it was paid under a mutual mistake of law, and thus the company has no remedy).
The Scottish Court of Session (equivalent to the Court of Appeal) has handed down its decision in MPB Structures Ltd v Munro.
It is authority for the proposition that it is unlawful, under the Working Time Regulations, to provide 'rolled-up' holiday pay instead of allowing workers to have four weeks' pay when the holiday is taken.
Some employers, particularly in high-turnover industries, provide a 'rolled-up' hourly rate which includes an element for holiday pay. They then do not pay monies whilst the employee takes his holiday, on the basis that they have already been paid it.
MPB Structures paid a rate of =C2=A310ph, which represented (approximately)
C2A39.25 salary and C2A30.75 specifically for holiday pay. The Court of Session ruled that this was contrary to the Regulations, and that the company was still obliged to make a payment of holiday pay during the four weeks' paid holiday under the Working Time Regulations. The payment of C2A30.75ph could not be set-off against this obligation.
This answers the question which the Court of Appeal largely left open in Gridquest v Blackburn (see bulletin 24/7/02). The question of whether a company, in these circumstances, can recover the 'overpaid' salary of C2A30.7 5ph remains open (but, in my view, is doubtful - a court would probably say it was paid under a mutual mistake of law, and thus the company has no remedy).
Sunday, 6 April 2003
Bankers' Bonuses
The Employment Appeal Tribunal has handed down its decision in Barton v Investec, upholding Louise Barton's appeal from her unsuccessful employment tribunal case where she claimed the secretive culture of awarding bonuses in city institutions was discriminatory on grounds of sex and/or a breach of the Equal Pay Act 1970..
It is authority for the proposition that city institutions operating secret bonus systems are at significant risk of losing equal pay or discrimination claims. The EAT stated:
"30. ...This Court would certainly wish to make it clear that no Tribunal should be seen to condone a City bonus culture involving secrecy and/or lack of transparency because of the potentially large amounts involved, as a reason for avoiding equal pay obligations."
The decision sets out guidelines for inferring discrimination, pursuant to the new s63A of the Sex Discrimination Act 1975 which was inserted into the Act in 2001 (see bulletin dated 30th July 2001). The decision states, at = para. 25,:
"25. We therefore consider it necessary to set out fresh guidance in the light of the statutory changes:
(1) Pursuant to section 63A of the Sex Discrimination Act 1975, it is for the Applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination against the Applicant which is unlawful by virtue of Part 2 or which by virtue of section 41 or 42 SDA is to be treated as having beencommitted against the Applicant. These are referred to below as E2809Cs uch factsE2809D
(2) If the Applicant does not prove such facts he or she will fail.
(3) It is important to bear in mind in deciding whether the Applicant has p= roved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that E2809Che or she would not have fitted inE2809D.
(4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.
(5) It is important to note the word is E2809CcouldE2809D. At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts p roved by the Applicant to see what inferences of secondary fact could be drawn from them.
(6) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the Disability Discrimination Act [note from DB: presumably this should read Sex Discrimination Act] from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the Sex Discrimination Act see Hinks -v- Riva Systems EAT/501/96.
(7) Likewise, the Tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining such facts pursuant to section 56A(10) SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.
(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since E2809Cno discrimination whatsoeverE2809D is compatible with the Burden of Proof Directive.
(11) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the Tribunal will need to examine carefully explanations for failure to deal with the quest ionnaire procedure and/or code of practice.
The end result of the appeal was that the tribunal's decision was quashed a= nd the case was remitted for rehearing in front of a fresh tribunal.
Legislation Commencement Dates
[A job advertisement for Ashby Cohen solicitors appears at the end of this bulletin]
The government has completed its consultation on harmonising commencement dates for employment legislation (see bulletins dated 16/10/02, 6/8/02 and 1= 6/5/02).
In order to simplify matters for business, the DTI will set 6th April and 1st October as the two dates each year when domestic employment regulations come into effect (with the exception of the annual increase in compensation limits, which will remain as 1st February).
EC Directives will be implemented on a 'case-by-case' basis, having regard to the commencement dates for domestic regulations. From January 2004, the DTI will publish an annual statement of forthcoming employment regulation.
This announcement implements one of the recommendations of the Better Regulations Taskforce, which reported last year.
The government has completed its consultation on harmonising commencement dates for employment legislation (see bulletins dated 16/10/02, 6/8/02 and 1= 6/5/02).
In order to simplify matters for business, the DTI will set 6th April and 1st October as the two dates each year when domestic employment regulations come into effect (with the exception of the annual increase in compensation limits, which will remain as 1st February).
EC Directives will be implemented on a 'case-by-case' basis, having regard to the commencement dates for domestic regulations. From January 2004, the DTI will publish an annual statement of forthcoming employment regulation.
This announcement implements one of the recommendations of the Better Regulations Taskforce, which reported last year.
Wednesday, 26 March 2003
Jurisdiction and Stays
An very important decision, Lawson v Serco Ltd, has been handed down by the EAT (delivered 11th March 2003).
The case is authority for the proposition that:
(1) employment tribunals have jurisdiction to hear claims where the Respondent is incorporated in, or carries on business in, England and Wales - irrespective of the applicable law to the contract or where the work takes place; and,
(2) employment tribunals have no jurisdiction to stay cases, so as to enable them to be determined in a more fitting jurisdiction.
The Facts
Mr Lawson worked as a security consultant for Serco Ltd, a company registered in the UK. He worked on Ascension Island in the South Pacific. He was domiciled on Ascension Island and did not pay UK tax because of working abroad. He was subject to management in the Ascension Island.
He brought a claim, heard before the Watford tribunal, for unfair constructive dismissal, alleging breaches of the Working Time Regulations. The Watford tribunal dismissed his claim for lack of jurisdiction.
The EAT's Decision
The EAT held that the Employment Rights Act 1996 applies to any employer who is domiciled/registered in England or Wales, or who 'carried on business' in England or Wales, irrespective of where the work took place or what the contract said about the applicable law.
Therefore, it held, an English tribunal had jurisdiction to hear Mr Lawson's claim, notwithstanding that he worked in the South Pacific.
It then considered that argument that the English proceedings should be stayed on the basis that Ascension Island was the more appropriate and convenient forum, applying normal principles of international law. It stated that:
"It is clear to us that there is no power to stay proceedings before a tribunal, and that once jurisdiction is established, the Tribunal cannot close its doors to parties who wish to appear before it."
For similar reasons, the EAT held that the Working Time Regulations 1998 apply in the Ascension Islands.
Comment
This is a momentous decision in terms of widening the jurisdiction of employment tribunals. I do not know whether leave was given (or sought) to go to the Court of Appeal.
Leaving aside jurisdictional issues, an important practical implication is that (unless this decision is overturned) tribunals will not be able to:
(a) stay cases pending disclosure of medical records. In many cases where GP notes are relevant, but the court/tribunal lacks power to order disclosure (as they are not in the Applicant's possession or control), the way to 'force' the Applicant to consent to the GP releasing the notes is by staying the case until s/he gives consent. This will no longer be possible, and it may mean that Respondents have no effective method of obtaining copies of medical records in litigation. This is particularly important in cases where the Applicant claims damages for personal injury.
(b) stay cases pending internal appeals (which can last for many, many months - if not years - with public sector employers);
(c) stay all employment tribunal cases pending clarification of the law from the high appellate courts, as we have seen in recent years with the Liversidge cases (whether chief constables are vicariously liable for harassment by their junior officers) or the Seymour Smith legislation (qualifying period for unfair dismissal, where thousands of cases were stayed pending the result).
The case is authority for the proposition that:
(1) employment tribunals have jurisdiction to hear claims where the Respondent is incorporated in, or carries on business in, England and Wales - irrespective of the applicable law to the contract or where the work takes place; and,
(2) employment tribunals have no jurisdiction to stay cases, so as to enable them to be determined in a more fitting jurisdiction.
The Facts
Mr Lawson worked as a security consultant for Serco Ltd, a company registered in the UK. He worked on Ascension Island in the South Pacific. He was domiciled on Ascension Island and did not pay UK tax because of working abroad. He was subject to management in the Ascension Island.
He brought a claim, heard before the Watford tribunal, for unfair constructive dismissal, alleging breaches of the Working Time Regulations. The Watford tribunal dismissed his claim for lack of jurisdiction.
The EAT's Decision
The EAT held that the Employment Rights Act 1996 applies to any employer who is domiciled/registered in England or Wales, or who 'carried on business' in England or Wales, irrespective of where the work took place or what the contract said about the applicable law.
Therefore, it held, an English tribunal had jurisdiction to hear Mr Lawson's claim, notwithstanding that he worked in the South Pacific.
It then considered that argument that the English proceedings should be stayed on the basis that Ascension Island was the more appropriate and convenient forum, applying normal principles of international law. It stated that:
"It is clear to us that there is no power to stay proceedings before a tribunal, and that once jurisdiction is established, the Tribunal cannot close its doors to parties who wish to appear before it."
For similar reasons, the EAT held that the Working Time Regulations 1998 apply in the Ascension Islands.
Comment
This is a momentous decision in terms of widening the jurisdiction of employment tribunals. I do not know whether leave was given (or sought) to go to the Court of Appeal.
Leaving aside jurisdictional issues, an important practical implication is that (unless this decision is overturned) tribunals will not be able to:
(a) stay cases pending disclosure of medical records. In many cases where GP notes are relevant, but the court/tribunal lacks power to order disclosure (as they are not in the Applicant's possession or control), the way to 'force' the Applicant to consent to the GP releasing the notes is by staying the case until s/he gives consent. This will no longer be possible, and it may mean that Respondents have no effective method of obtaining copies of medical records in litigation. This is particularly important in cases where the Applicant claims damages for personal injury.
(b) stay cases pending internal appeals (which can last for many, many months - if not years - with public sector employers);
(c) stay all employment tribunal cases pending clarification of the law from the high appellate courts, as we have seen in recent years with the Liversidge cases (whether chief constables are vicariously liable for harassment by their junior officers) or the Seymour Smith legislation (qualifying period for unfair dismissal, where thousands of cases were stayed pending the result).
Agency Workers can be 'Employees'
The Employment Appeal Tribunal's decision in Dacas v Brook Street Bureau (unreported, EAT/492/02, 11th December 2002) has been placed on the EAT website.
Mrs Dacas had been working as a temp cleaner, via the Brook Street Bureau, for Wandsworth Council for 6 years. Her contract was terminated summarily. The tribunal found that she was employed by neither Brook Street nor Wandsworth. Whilst she accepted the conclusion as against Wandsworth, Mrs Dacas appealed against the finding that she was not an employee of Brook Street.
Burton J.’s decision turned heavily on the precise findings by the tribunal. The tribunal had found that there was “considerable control” exercised over Mrs Dacas by Brook Street, in the sense that it paid her wages, was entitled to discipline her / terminate her services. It held, however, that day-to-day control was exercised over her not by Brook Steet but by Wandsworth.
It went on to hold that, because of a clear statement in the contract that Mrs Dacas was not an employee of the agency, the agreement between the parties prevented her being an employee. Whilst it is not entirely clear from the EAT decision, it seems that the tribunal also relied on the lack of day-to-day control by Brook Street as pointing against an employment relationship.
The EAT overturned the tribunal’s decision. It held that because of the words in the tribunal’s decision that the agency exercised “considerable control”, then the Ready Mixed Concrete test (see above) was met. Since there was plainly mutuality of obligation, and since it was impossible to say that Mrs Dacas was in business on her own account, the only conclusion that could be drawn was that she was an employee of Brook Street. Although the contract provided that she was not an employee, it was settled law that a label would only be determinative when the other pointers were inconclusive. Here, according to the EAT, the other pointers clearly showed that Mrs Dacsas was an employee of the agency.
The result of this decision is in stark contrast to all the previous cases on agency workers. Dacas v Brook Street does not purport to overrule them and – indeed – does not expressly consider the recent authorities such as Hanbury & Brook Street v EDS and Hewlett Packard v O’Murphy. Whilst the EAT may have been straining to achieve a fair result, its legal reasoning is open to further analysis. In particular:
(a) the EAT does not appear to have considered whether the need for control is actually a need for control over day to day activities (which did not exist in Dacas);
(b) whilst the EAT asserts that the Ready Mixed Concrete test is met, it does not appear to have considered stage 3 of that test, i.e. whether there are provisions of the contract inconsistent with it being a contract of service.
Despite my comments, the ramifications of this decision are significant. Previously, tribunals have been prohibited by authority from finding that an agency worker is an employee (of anybody). Now the path is open for them to find that the worker is the employee of the temp agency, irrespective of any denials to that effect in the contract between worker and agency.
This may have considerable impact on potential liabilities for agencies - they may find themselves liable for any actual (or even constructive) dismissals by their client companies, over which they have no control. In the absence of appropriate indemnities in their contracts with their client companies, temp agencies could find themselves unknowingly liable for very significant sums of money.
Mrs Dacas had been working as a temp cleaner, via the Brook Street Bureau, for Wandsworth Council for 6 years. Her contract was terminated summarily. The tribunal found that she was employed by neither Brook Street nor Wandsworth. Whilst she accepted the conclusion as against Wandsworth, Mrs Dacas appealed against the finding that she was not an employee of Brook Street.
Burton J.’s decision turned heavily on the precise findings by the tribunal. The tribunal had found that there was “considerable control” exercised over Mrs Dacas by Brook Street, in the sense that it paid her wages, was entitled to discipline her / terminate her services. It held, however, that day-to-day control was exercised over her not by Brook Steet but by Wandsworth.
It went on to hold that, because of a clear statement in the contract that Mrs Dacas was not an employee of the agency, the agreement between the parties prevented her being an employee. Whilst it is not entirely clear from the EAT decision, it seems that the tribunal also relied on the lack of day-to-day control by Brook Street as pointing against an employment relationship.
The EAT overturned the tribunal’s decision. It held that because of the words in the tribunal’s decision that the agency exercised “considerable control”, then the Ready Mixed Concrete test (see above) was met. Since there was plainly mutuality of obligation, and since it was impossible to say that Mrs Dacas was in business on her own account, the only conclusion that could be drawn was that she was an employee of Brook Street. Although the contract provided that she was not an employee, it was settled law that a label would only be determinative when the other pointers were inconclusive. Here, according to the EAT, the other pointers clearly showed that Mrs Dacsas was an employee of the agency.
The result of this decision is in stark contrast to all the previous cases on agency workers. Dacas v Brook Street does not purport to overrule them and – indeed – does not expressly consider the recent authorities such as Hanbury & Brook Street v EDS and Hewlett Packard v O’Murphy. Whilst the EAT may have been straining to achieve a fair result, its legal reasoning is open to further analysis. In particular:
(a) the EAT does not appear to have considered whether the need for control is actually a need for control over day to day activities (which did not exist in Dacas);
(b) whilst the EAT asserts that the Ready Mixed Concrete test is met, it does not appear to have considered stage 3 of that test, i.e. whether there are provisions of the contract inconsistent with it being a contract of service.
Despite my comments, the ramifications of this decision are significant. Previously, tribunals have been prohibited by authority from finding that an agency worker is an employee (of anybody). Now the path is open for them to find that the worker is the employee of the temp agency, irrespective of any denials to that effect in the contract between worker and agency.
This may have considerable impact on potential liabilities for agencies - they may find themselves liable for any actual (or even constructive) dismissals by their client companies, over which they have no control. In the absence of appropriate indemnities in their contracts with their client companies, temp agencies could find themselves unknowingly liable for very significant sums of money.
Saturday, 22 March 2003
Failure to Consult under TUPE Regs
An important decision, Alamo Group v Tucker, has been handed down by the EAT, dealing with liability for failing to consult under regulations 10 and 11 of TUPE.
Regulations 10 and 11 provide that a sum of up to 13 weeks' pay (not capped at £260pw) is payable to all affected employees who are not consulted by their employer prior to a TUPE transfer. This can result in very substantial awards being made when a large number of employees are involved.
Over the last few years, there has been controversy over who pays this sum: the transferor or the transferee. The strict wording of TUPE suggests that, even though the obligation is on the transferor, the liability transfer to the transferee as soon as the sale of the business has taken place. This was the approach adopted by the EAT in Kerry Foods v Creber [2000] ICR 536, in which it was held that liability did transfer.
However, in TGWU v McKinnon [2001] IRLR 597, another division of the EAT declined to follow Kerry and held that liability does not transfer. Many commentators (well, me, anyway!) preferred the decision in TGWU v McKinnon and thought that, for a variety of reasons, Kerry was wrong on that and other counts.
In Alamo Group v Tucker (EAT 24/2/02), HHJ Altman gives a clear and well-reasoned judgment preferring the result in Kerry (whilst not adopting the same reasoning!). Subject to any appeal, it now seems that liability for failure to consult will transfer to the tranferee.
Practical Implications
In light of this judgment, transferees should take care to:
• ensure that proper indemnities are included in the purchase agreement, protecting them from any default by the transferor;
• perhaps insert a provision in the contract placing in escrow, at the time of completion, the potential liability under regulations 10 and 11 (i.e. 13 weeks pay for each affected employee). This can then be released to the vendor if no claims are lodged, and can provide security for the purchaser in the event that the vendor becomes insolvent and the contractual indemnities become worthless;
• provide all relevant information to the transferor about their intentions vis a vis affected employees - and, possibly, copy it to the relevant trade union or employee representatives (although this may not be commercially practical during negotiations).
Regulations 10 and 11 provide that a sum of up to 13 weeks' pay (not capped at £260pw) is payable to all affected employees who are not consulted by their employer prior to a TUPE transfer. This can result in very substantial awards being made when a large number of employees are involved.
Over the last few years, there has been controversy over who pays this sum: the transferor or the transferee. The strict wording of TUPE suggests that, even though the obligation is on the transferor, the liability transfer to the transferee as soon as the sale of the business has taken place. This was the approach adopted by the EAT in Kerry Foods v Creber [2000] ICR 536, in which it was held that liability did transfer.
However, in TGWU v McKinnon [2001] IRLR 597, another division of the EAT declined to follow Kerry and held that liability does not transfer. Many commentators (well, me, anyway!) preferred the decision in TGWU v McKinnon and thought that, for a variety of reasons, Kerry was wrong on that and other counts.
In Alamo Group v Tucker (EAT 24/2/02), HHJ Altman gives a clear and well-reasoned judgment preferring the result in Kerry (whilst not adopting the same reasoning!). Subject to any appeal, it now seems that liability for failure to consult will transfer to the tranferee.
Practical Implications
In light of this judgment, transferees should take care to:
• ensure that proper indemnities are included in the purchase agreement, protecting them from any default by the transferor;
• perhaps insert a provision in the contract placing in escrow, at the time of completion, the potential liability under regulations 10 and 11 (i.e. 13 weeks pay for each affected employee). This can then be released to the vendor if no claims are lodged, and can provide security for the purchaser in the event that the vendor becomes insolvent and the contractual indemnities become worthless;
• provide all relevant information to the transferor about their intentions vis a vis affected employees - and, possibly, copy it to the relevant trade union or employee representatives (although this may not be commercially practical during negotiations).
Monday, 17 March 2003
Disability Discrimination
The Disability Discrimination (Blind and Partially Sighted People) Regulations 2003 have been laid before Parliament today.
They provide that anybody who is blind or partially sighted (either certified as such by a consultant ophthalmologist, or registered as such with the local authority) is deemed to be disabled within the meaning of the Disability Discrimination Act 1995. In other words, they no longer need to establish that being partially sighted has a substantial adverse effect on their day to day activities.
The text of the statutory instrument is not yet available on the internet. When it becomes available, it will be accessible from http://www.hmso.gov.uk/stat.htm#2003
They provide that anybody who is blind or partially sighted (either certified as such by a consultant ophthalmologist, or registered as such with the local authority) is deemed to be disabled within the meaning of the Disability Discrimination Act 1995. In other words, they no longer need to establish that being partially sighted has a substantial adverse effect on their day to day activities.
The text of the statutory instrument is not yet available on the internet. When it becomes available, it will be accessible from http://www.hmso.gov.uk/stat.htm#2003
Tuesday, 11 March 2003
Unified Tribunals Service
The Lord Chancellor's Department has today announced the creation of a unified tribunal service, which will swallow up the role of the Employment Tribunal Service. It is described in the LCD's press release as "The Greatest Shake-Up for 40 Years"
The new tribunal service will be responsible for employment tribunals, the EAT, the appeals service, immigration tribunals, lands tribunals, the criminal injury compensation authority and others.
But don't get too excited! It's not going to happen overnight. A consultation document, to discuss the mechanics of change, will be published later this year.
The new tribunal service will be responsible for employment tribunals, the EAT, the appeals service, immigration tribunals, lands tribunals, the criminal injury compensation authority and others.
But don't get too excited! It's not going to happen overnight. A consultation document, to discuss the mechanics of change, will be published later this year.
Sunday, 9 March 2003
House of Lords: Comparators in Discrimination
On 27th February 2003, the House of Lords handed down its opinion in the important discrimination case Shamoon v Chief Constable of the Royal Ulster Constabulary.
The Facts
Chief Inspector Shamoon worked in the traffic division of the Royal Ulster Constabulary. The traffic division was split into three geographic regions. Along with her, there were two other Chief Inspectors (one for each of the other regions) who undertook appraisals of junior police offices.
The union was unhappy with the way in which Chief Inspector Shamoon conducted some of these appraisals, and asked her superior officer, the Superintendent, to remove appraisal responsibilities from Ms Shamoon. The Superintendent agreed.
The Tribunal's Decision
The tribunal took the two other, male, Chief Inspectors as comparators. They had not had their appraisal responsibilities removed. Accordingly, the tribunal found that Ms Shamoon had been treated less favourably than her comparators. It drew an inference this was on grounds of her sex and found in Ms Shamoon's favour.
The House of Lords
The House of Lords criticised the tribunal's approach. It made it clear that, when selecting a comparator, it is insufficient to select a male (or males) in a similar position. The comparator must be somebody where "the relevant circumstances in the one case are the same, or not materially different, in the other." (Sex Discrimination Act 1975, s5(3))
This meant that the male Chief Inspectors were not appropriate comparators within the meaning of the legislation. There were material differences. First, no complaints had been made against the other Chief Inspectors. Second, the Superintended lacked direct line responsibility for the other two Chief Inspectors. These differences meant that the male Chief Inspectors could not, as things stood, be valid comparators.
What the tribunal should have done was considered whether Ms Shamoon had been treated less favourably than the two male Chief Inspectors if, hypothetically, they had been subject to complaints and the same line management.
Comment
This decision appears to make it harder for Applicants to establish valid real comparators.
Two other matters in the decision are of interest.
First, the House of Lords said that the traditional two stage approach (namely (1) was there less favourable treatment; (2) was it on grounds of sex) is not mandatory and often will not be appropriate.
Second, Lord Scott stated that when deciding whether to infer that treatment was on ground of gender, a tribunal would normally be expected to identify matters such as discriminatory comments made by the alleged discriminator about the victim, or "unconvincing denials of a discriminatory intent coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision."
The Facts
Chief Inspector Shamoon worked in the traffic division of the Royal Ulster Constabulary. The traffic division was split into three geographic regions. Along with her, there were two other Chief Inspectors (one for each of the other regions) who undertook appraisals of junior police offices.
The union was unhappy with the way in which Chief Inspector Shamoon conducted some of these appraisals, and asked her superior officer, the Superintendent, to remove appraisal responsibilities from Ms Shamoon. The Superintendent agreed.
The Tribunal's Decision
The tribunal took the two other, male, Chief Inspectors as comparators. They had not had their appraisal responsibilities removed. Accordingly, the tribunal found that Ms Shamoon had been treated less favourably than her comparators. It drew an inference this was on grounds of her sex and found in Ms Shamoon's favour.
The House of Lords
The House of Lords criticised the tribunal's approach. It made it clear that, when selecting a comparator, it is insufficient to select a male (or males) in a similar position. The comparator must be somebody where "the relevant circumstances in the one case are the same, or not materially different, in the other." (Sex Discrimination Act 1975, s5(3))
This meant that the male Chief Inspectors were not appropriate comparators within the meaning of the legislation. There were material differences. First, no complaints had been made against the other Chief Inspectors. Second, the Superintended lacked direct line responsibility for the other two Chief Inspectors. These differences meant that the male Chief Inspectors could not, as things stood, be valid comparators.
What the tribunal should have done was considered whether Ms Shamoon had been treated less favourably than the two male Chief Inspectors if, hypothetically, they had been subject to complaints and the same line management.
Comment
This decision appears to make it harder for Applicants to establish valid real comparators.
Two other matters in the decision are of interest.
First, the House of Lords said that the traditional two stage approach (namely (1) was there less favourable treatment; (2) was it on grounds of sex) is not mandatory and often will not be appropriate.
Second, Lord Scott stated that when deciding whether to infer that treatment was on ground of gender, a tribunal would normally be expected to identify matters such as discriminatory comments made by the alleged discriminator about the victim, or "unconvincing denials of a discriminatory intent coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision."
Thursday, 6 March 2003
House of Lords: Trade Union / Strikes
Last week the House of Lords handed down its opinion in In re P (a minor). This is authority for the propositions that:
(a) the definition of 'trade dispute', when deciding whether a trade union has statutory immunity, should be widely and purposively interpreted; and,
(b) an immaterial and accidental failure to comply with the statutory balloting procedures does not deprive a union of statutory immunity.
The Facts
P was an unruly child who had been permanently excluded (i.e. expelled) from school by the headmaster. However, the governors reinstated him on appeal. The teachers refused to teach him. The headmaster instructed them to do so and, following a ballot, the teachers went on strike.
P sought to obtain an injunction against the union requiring it to call off the strike. There were two main issues.
Issue 1: Definition of 'Trade Dispute'
P argued that 'trade dispute' is defined in s244(1) of the TULRCA 1992 as a dispute relating to "terms and conditions of employment".
There was no doubt that the terms and conditions of employment required the teachers to obey reasonable instructions of the headmaster. The dispute was over whether the instruction (to teach P) was reasonable. P argued that the terms and conditions were clear and, indeed, were common ground. The dispute was not over the terms and conditions - which were not in issue - but over the application or implementation of those terms.
The House of Lords, whilst accepting that as a compelling argument on a literal construction of the statute, rejected the argument. They held that the phrase 'trade dispute' should be interpreted widely so as to cover a genuine dispute between employer and employee relating to the job they are employed to do. Accordingly, the dispute was a 'trade dispute' within the meaning of the Act, and the union was entitled to statutory immunity (subject to compliance with the balloting procedures).
Issue 2: The Flawed Ballot
The balloting provisions, described by the House of Lords as "complicated", provide that "entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part...in the industrial action in question..." (s227(1))
Through administrative error, ballot papers were not sent to two eligible members. Their votes could not possibly have affected the outcome because the vote was overwhelmingly in favour of a strike.
However, the statute is clear; section 232A provides that the ballot is invalid if any eligible person is not given entitlement to vote. Although s232B provides an escape clause for "accidental" failures which are "unlikely to affect the result", the escape clause, on its face, applies to sections other that s232A.
The House of Lords held this was a drafting error. It relied on the fact that one of the sections referred to in the escape clause did not exist, so parliament must have intended to refer to another section - namely, s232A. The House held it would be absurd for such a minor breach of a complicated technical provision to invalidate the ballot, and a purposive construction of the Act, so stated that the 'escape clause' should also apply to s232A.
(a) the definition of 'trade dispute', when deciding whether a trade union has statutory immunity, should be widely and purposively interpreted; and,
(b) an immaterial and accidental failure to comply with the statutory balloting procedures does not deprive a union of statutory immunity.
The Facts
P was an unruly child who had been permanently excluded (i.e. expelled) from school by the headmaster. However, the governors reinstated him on appeal. The teachers refused to teach him. The headmaster instructed them to do so and, following a ballot, the teachers went on strike.
P sought to obtain an injunction against the union requiring it to call off the strike. There were two main issues.
Issue 1: Definition of 'Trade Dispute'
P argued that 'trade dispute' is defined in s244(1) of the TULRCA 1992 as a dispute relating to "terms and conditions of employment".
There was no doubt that the terms and conditions of employment required the teachers to obey reasonable instructions of the headmaster. The dispute was over whether the instruction (to teach P) was reasonable. P argued that the terms and conditions were clear and, indeed, were common ground. The dispute was not over the terms and conditions - which were not in issue - but over the application or implementation of those terms.
The House of Lords, whilst accepting that as a compelling argument on a literal construction of the statute, rejected the argument. They held that the phrase 'trade dispute' should be interpreted widely so as to cover a genuine dispute between employer and employee relating to the job they are employed to do. Accordingly, the dispute was a 'trade dispute' within the meaning of the Act, and the union was entitled to statutory immunity (subject to compliance with the balloting procedures).
Issue 2: The Flawed Ballot
The balloting provisions, described by the House of Lords as "complicated", provide that "entitlement to vote in the ballot must be accorded equally to all the members of the trade union who it is reasonable at the time of the ballot for the union to believe will be induced to take part...in the industrial action in question..." (s227(1))
Through administrative error, ballot papers were not sent to two eligible members. Their votes could not possibly have affected the outcome because the vote was overwhelmingly in favour of a strike.
However, the statute is clear; section 232A provides that the ballot is invalid if any eligible person is not given entitlement to vote. Although s232B provides an escape clause for "accidental" failures which are "unlikely to affect the result", the escape clause, on its face, applies to sections other that s232A.
The House of Lords held this was a drafting error. It relied on the fact that one of the sections referred to in the escape clause did not exist, so parliament must have intended to refer to another section - namely, s232A. The House held it would be absurd for such a minor breach of a complicated technical provision to invalidate the ballot, and a purposive construction of the Act, so stated that the 'escape clause' should also apply to s232A.
Wednesday, 5 March 2003
New European Material
Lots been happening in employment law over the last week - sorry I haven't put updates out immediately.
This Email deals with two EU developments. I am sending, simultaneously, an Email dealing with two new consultation documents. At some stage (probably tomorrow), I will send an Email dealing with two new House of Lord's decisions on employment law.
1. Annual Equality Report
The Commission has today adopted the 7th annual report on equal opportunities. It looks at the adoption of the Directive on Harassment at Work, examined new caselaw on equal pay and considers how far gender issues have been given a role in each of other EU policies.
Whilst not funny, no doubt some commentators will rise an eyebrow at the line at page 24 of the report:
"In 2002, 12 women were stoned to death in Iran for 'moral' crimes. Men just get their hands amputated for similar offences."
It does rather put wearing a tie in the office into perspective.
2. Advocate General opinion on collective consultation obligations
Note: I have not read the AG's opinion. The report below was received from the Federation of European Employers (http://www.fedee.com)
The Advocate-General to the European Court of Justice has issued his opinion in the Ads Anker GmbH case (C-349/01). This concerns a company's refusal to supply corporate information when requested by employee representatives seeking to establish a European works council. Unlike the previous Kuhne & Nagel case (C-440/00), the point of dispute was not whether a head office should comply with a subsidiary's information request, as the parent company in this case was in Switzerland and therefore outside the jurisdiction of the European Union. The question was therefore whether a request through a subsidiary company could be resisted by other companies in a group over which the subsidiary did not exercise any direct legal authority.
The Advocate-General advised the court that it was clearly an obligation on all EU member states to require companies operating within their jurisdiction to furnish information requested for the purpose of determining whether a group met the size thresholds for the establishment of a European works council.
This Email deals with two EU developments. I am sending, simultaneously, an Email dealing with two new consultation documents. At some stage (probably tomorrow), I will send an Email dealing with two new House of Lord's decisions on employment law.
1. Annual Equality Report
The Commission has today adopted the 7th annual report on equal opportunities. It looks at the adoption of the Directive on Harassment at Work, examined new caselaw on equal pay and considers how far gender issues have been given a role in each of other EU policies.
Whilst not funny, no doubt some commentators will rise an eyebrow at the line at page 24 of the report:
"In 2002, 12 women were stoned to death in Iran for 'moral' crimes. Men just get their hands amputated for similar offences."
It does rather put wearing a tie in the office into perspective.
2. Advocate General opinion on collective consultation obligations
Note: I have not read the AG's opinion. The report below was received from the Federation of European Employers (http://www.fedee.com)
The Advocate-General to the European Court of Justice has issued his opinion in the Ads Anker GmbH case (C-349/01). This concerns a company's refusal to supply corporate information when requested by employee representatives seeking to establish a European works council. Unlike the previous Kuhne & Nagel case (C-440/00), the point of dispute was not whether a head office should comply with a subsidiary's information request, as the parent company in this case was in Switzerland and therefore outside the jurisdiction of the European Union. The question was therefore whether a request through a subsidiary company could be resisted by other companies in a group over which the subsidiary did not exercise any direct legal authority.
The Advocate-General advised the court that it was clearly an obligation on all EU member states to require companies operating within their jurisdiction to furnish information requested for the purpose of determining whether a group met the size thresholds for the establishment of a European works council.
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