The Court of Appeal has handed down its decision in Emerging Markets Partnership v Bachnak (19th December 2003).
It holds that where an 'employee' enters into two contracts with the 'employer', one (without any remuneration) in a traditional employee/employer relationship, and the other (with remuneration to the limited company) through the intermediary of a one-man limited company, the tribunal cannot simply say that the lack of remuneration on the one contract, and the absence of a direct contractual relationship on the other, means that the individual is not an employee (and thus cannot claim unfair dismissal).
What a tribunal should do is look at the two contracts in the round and decide whether, in the light of the co-existing contracts, an express or implied contract of employment arises.
It's not a very interesting case, but - hey - it's Christmas. Merry Christmas everyone.
Monday, 22 December 2003
Wednesday, 10 December 2003
Normal Retirement Age: Employees in Unique Position
Section 109 of the Employment Rights Act 1996 provides that employees cannot clair dismissal if they are over the 'normal retirement age' (or, if there is no normal retirement age, 65). This section, commonly known as the upper qualifying limit, was upheld as lawful recently in Rutherford v Town Circle (bulletin 2/10/03).
In a majority judgment handed down this morning, Wall v The British Compressed Air Society, the Court of Appeal has held that an employee's contractual retirement age, where he is the only employee in that position, sets up a presumption that that is the 'normal' retirement age.
Previously, the EAT had held that a employee holding a unique position cannot have a 'normal' retirement age, because the requirement for a 'norm' entails the need for a group of people with that retirement age within the company. These cases, Age Concern Scotland v Hines and Dormers Wells Infant School v Wells, have been overturned by the majority of the Court of Appeal.
Giving the leading judgment, Simon Brown LJ (with whom Evans Lombe J., agreed) stated that it was absurd that an individual aged, say, 68, with a contractual retirement age of 70, might claim unfair dismissal if there were two people in his position but was prohibited from claiming unfair dismissal if there was only the one person in his position. Accordingly, the majority held that an employee holding a unique position was not prohibited from establishing a 'normal retirement age'.
Giving a dissenting judgment, Scott Baker LJ held that a unique contractual right of a particular employee to retire on a particular date cannot, by itself, create a 'norm' so as to set a normal retirement age.
LINK: http://www.bailii.org/ew/cases/EWCA/Civ/2003/1762.html
Data Protection - Curtailment of Right to demand information
The Court of Appeal has decided an important case on the scope of the Data Protection Act 1998 and, in so doing, provides guidance on the extent to which employers are obliged to provide copies of employees' personnel files, Emails etc.. In short, it drastically curtails the right of employees to demand information by means of a data protection request.
The case, Durant v Financial Services Authority, provides as follows:
* 1. in order for data, whether held on computer or a manual file, to be 'personal data' (thus giving rise to a disclosure obligation), it must name or directly refer to an individual. But that it not enough: mere mention of a subject's name in a document does not make the information in that document 'personal data'. For the disclosure obligation to arise, the information must be biographical in a significant extent, and should have the data subject as its focus. Thus information stored by the FSA concerning a complaint by Mr Durant about Barclays Bank was not personal data which the FSA was obliged to disclose to Mr Durant (paras 26-28).
* 2. a 'relevant filing system', for a manual (rather than computer) system, is one where the information is structured by reference to that individual. Thus the FSA's file marked 'Mr Durant', which contained a large number of documents relating to his claim in date order, was not a relevant filing system because it was structured by reference to date, not to the individual (para. 35 and 48). The purpose of the Act is to protect the privacy of personal data, not documents. If the documents are not structured by reference to that data, the disclosure provisions of the Act are not triggered. Any manual filing system which requires an individual to "leaf through" multiple documents to find the personal data contained therein falls outside the scope of the Act. The fact a folder is labelled with an individual's name is not, without more, enough to bring it within the Act.
The Court of Appeal also considered the difficulties arising when personal data, which would otherwise be disclosable, identifies other people.
The Court concluded with criticisms of individuals who seek to use the Act as a method of obtaining information generally which refers to them by name, rather than information relating only to personal data. Mummery LJ described Mr Durant's application and appeal as "misconceived", which will not bode well for Applicants who put Respondents to cost in tribunal claims dealing with a (now) unwarranted Data Protection disclosure application.
The case, Durant v Financial Services Authority, provides as follows:
* 1. in order for data, whether held on computer or a manual file, to be 'personal data' (thus giving rise to a disclosure obligation), it must name or directly refer to an individual. But that it not enough: mere mention of a subject's name in a document does not make the information in that document 'personal data'. For the disclosure obligation to arise, the information must be biographical in a significant extent, and should have the data subject as its focus. Thus information stored by the FSA concerning a complaint by Mr Durant about Barclays Bank was not personal data which the FSA was obliged to disclose to Mr Durant (paras 26-28).
* 2. a 'relevant filing system', for a manual (rather than computer) system, is one where the information is structured by reference to that individual. Thus the FSA's file marked 'Mr Durant', which contained a large number of documents relating to his claim in date order, was not a relevant filing system because it was structured by reference to date, not to the individual (para. 35 and 48). The purpose of the Act is to protect the privacy of personal data, not documents. If the documents are not structured by reference to that data, the disclosure provisions of the Act are not triggered. Any manual filing system which requires an individual to "leaf through" multiple documents to find the personal data contained therein falls outside the scope of the Act. The fact a folder is labelled with an individual's name is not, without more, enough to bring it within the Act.
The Court of Appeal also considered the difficulties arising when personal data, which would otherwise be disclosable, identifies other people.
The Court concluded with criticisms of individuals who seek to use the Act as a method of obtaining information generally which refers to them by name, rather than information relating only to personal data. Mummery LJ described Mr Durant's application and appeal as "misconceived", which will not bode well for Applicants who put Respondents to cost in tribunal claims dealing with a (now) unwarranted Data Protection disclosure application.
Monday, 8 December 2003
New TUPE Cases
New TUPE Cases
Two new TUPE cases: one Court of Appeal, one Employment Appeal Tribunal.
Alderson v Secretary of State for Trade & Industry (Court of Appeal, 8/12/03)
A case of historical interest only: regulation 2(1) of TUPE used to define an 'undertaking' as including "any trade or business but does not include any undertaking or part of an undertaking which is not in the nature of a commercial venture."
The employees were employed by Liverpool City Council as refuse collectors. The refuse services were contracted out, and the employees were engaged by the new contractor on less favourable terms and conditions. They brought a Francovich claim against the DTI, arguing that by excluding non-commercial ventures (ie refuse collections for a local authority) from the scope of TUPE, the government had failed to properly implement the Acquired Rights Directive.
The Court of Appeal held that exclusion for undertakings "not in the nature of a commercial venture" did not apply to this case, because it was clear that (i) the undertaking was of a commercial nature after the transfer, and (ii) it had all the same characteristics, other than it was not operated for profit, before the transfer (para. 31)
As stated above, the case is of historical interest only because the non-commercial venture exclusion was abolished in 1993 by the Trade Union Reform and Employment Rights Act 1993.
LINK: http://www.courtservice.gov.uk/judgmentsfiles/j2135/alderson.htm
-------------------------------------------------------------------------------- Perth & Kinross Council v Donaldson (EAT, Lord Johnston, 30/10/03)
The EAT (sitting in Scotland) held that TUPE does not apply to a liquidator who is gathering in assets to dispose of them for the maximum benefit of creditors. Unlike receivers and administrators, "if [the liquidator] has to look over his shoulder at the TUPE Regulations, this might well fetter the extent to which he might perform his duty. (para. 19)".
Thus when the local authority took housing maintenance services back in-house (pun unintended), following the insolvency of, and appointment of liquidators for, the company it had contracted those services to, TUPE did not apply.
Two new TUPE cases: one Court of Appeal, one Employment Appeal Tribunal.
Alderson v Secretary of State for Trade & Industry (Court of Appeal, 8/12/03)
A case of historical interest only: regulation 2(1) of TUPE used to define an 'undertaking' as including "any trade or business but does not include any undertaking or part of an undertaking which is not in the nature of a commercial venture."
The employees were employed by Liverpool City Council as refuse collectors. The refuse services were contracted out, and the employees were engaged by the new contractor on less favourable terms and conditions. They brought a Francovich claim against the DTI, arguing that by excluding non-commercial ventures (ie refuse collections for a local authority) from the scope of TUPE, the government had failed to properly implement the Acquired Rights Directive.
The Court of Appeal held that exclusion for undertakings "not in the nature of a commercial venture" did not apply to this case, because it was clear that (i) the undertaking was of a commercial nature after the transfer, and (ii) it had all the same characteristics, other than it was not operated for profit, before the transfer (para. 31)
As stated above, the case is of historical interest only because the non-commercial venture exclusion was abolished in 1993 by the Trade Union Reform and Employment Rights Act 1993.
LINK: http://www.courtservice.gov.uk/judgmentsfiles/j2135/alderson.htm
-------------------------------------------------------------------------------- Perth & Kinross Council v Donaldson (EAT, Lord Johnston, 30/10/03)
The EAT (sitting in Scotland) held that TUPE does not apply to a liquidator who is gathering in assets to dispose of them for the maximum benefit of creditors. Unlike receivers and administrators, "if [the liquidator] has to look over his shoulder at the TUPE Regulations, this might well fetter the extent to which he might perform his duty. (para. 19)".
Thus when the local authority took housing maintenance services back in-house (pun unintended), following the insolvency of, and appointment of liquidators for, the company it had contracted those services to, TUPE did not apply.
Friday, 5 December 2003
New ET Rules of Procedure: Consultation
A consultation paper has been issued in connection with revising ET procedu= res. The proposals arise primarily from the Employment Act 2002 and the Em= ployment Tribunal taskforce report.
The key reforms proposed are:
The key reforms proposed are:
- the Rules of Procedure are to be recast so that they follow a more logical structure and are expressed in more 'plain English' terms.
- the IT1 and IT3 disappear, now to be called Claim and Response forms. The forms must contain specified information and, if not provided, will cause the forms to be rejected.
- the circumstances in which a respondent may gain an extension of time for submitting a response form are to be more tightly specified.
- there will be new pre-acceptance procedures to sift out claims and responses that (for one or more of a number of specified reasons) should not go forward.
- Acas's duty to conciliate is to be limited to a fixed period in most cases, to encourage parties to settle in good time rather than just before the Tribunal hearing. This fixed period will be either a short 7 week period or a standard 13 week period, depending on what the case is about. However, in discrimination cases, which tend to be particularly complex, Acas's duty to conciliate will remain unlimited in time.
- where a case is uncontested, the Tribunal will in future usually issue a default judgment against the respondent without holding a hearing.
- powers are to be provided for the Employment Tribunal Presidents to issue practice directions to ensure that a consistent approach is adopted to procedural issues.
- explicit provision is to be made for cases to be struck out at pre-hearing review, but only within the grounds on which Tribunals may currently strike out claims or responses outside such a review. (Such grounds include failure to comply with an order or direction, or the inclusion in the claim form or response form of anything scandalous, unreasonable or vexatious or conducting the proceedings in such a manner.)
- two substantial changes are to be made to the present costs rules: (i) there will be a new provision for awards in respect of preparation time in some circumstances; and (ii) it will be possible for representatives (except not-for-profit representatives) to incur a costs award on account of their own conduct.
- the rules will apply to the whole of Great Britain, replacing the current separate, but essentially equivalent, Rules for England and Wales and Scotland.
- Following this public consultation, it is intended that revised Regulations will be laid before Parliament in spring 2004 and come into force on 1 October 2004.
Wednesday, 3 December 2003
Annual Increase in Tribunal Awards
The annual increases in compensation have been published. They take effect from 1st February 2004 under the Employment Rights (Increase of Limits) Order 2003.
The main increases are:
The main increases are:
- maximum compensatory award increased from £53,500 to £55,000;
- maximum amount for a week's pay (for calculating basic award or redundancy payment) increased from £260 to £270.
Tuesday, 2 December 2003
Employment Relations Bill - Correction
A keen reader has pointed out to me that I missed out the word 'Relations' = in the second sentence of the first paragraph below (aptly, she works for S= pecsavers). It should have said 'Employment Relations Act 1999', not 'Empl= oyment Act 1999'. Corrected version follows:
Employment Relations Bill
-------------------------
The government has, this morning, introduced the Employment Relations Bill = in the House of Commons. The Bill 'tweaks' the Employment Relations Act 19= 99, following the review that took place after the first three years of the= Act's operation.
The Bill contains:
Employment Relations Bill
-------------------------
The government has, this morning, introduced the Employment Relations Bill = in the House of Commons. The Bill 'tweaks' the Employment Relations Act 19= 99, following the review that took place after the first three years of the= Act's operation.
The Bill contains:
- clarification of procedures for establishing what is an appropriate barga= ining unit for compulsory union recognition;=20
- an amendment incorporating the ECHR's decision in Wilson & Palmer, namely= that employers cannot pay an enhanced rate to 'buy out' an employee's righ= t to be bound by union agreements;=20
- greater case management powers for the CAC=20
Employment Relations Bill
The government has, this morning, introduced the Employment Relations Bill in the House of Commons. The Bill 'tweaks' the Employment Relations Act 1999, following the review that took place after the first three years of the Act's operation.
The Bill contains:
LINKS:
Government Press Release
The Bill
The Bill contains:
- clarification of procedures for establishing what is an appropriate bargaining unit for compulsory union recognition;
- an amendment incorporating the ECHR's decision in Wilson & Palmer, namely that employers cannot pay an enhanced rate to 'buy out' an employee's right to be bound by union agreements;
- greater case management powers for the CAC
LINKS:
Government Press Release
The Bill
Court of Appeal - Challenging Jurisdiction
The Court of Appeal's long-awaited decision in Harada Ltd (t/a Chequepoint) v Turner has been handed down today (see bulletin 25/11/99 for earlier issues arising in this case).
Harada challenged the tribunal's jurisdiction as the employee worked overseas. They employment tribunal found it had jurisdiction. Harada's appeal to the EAT was dismissed, so it appealed to the Court of Appeal. The merits hearing was listed in the meantime, and Harada unsuccessfully applied to adjourn the merits hearing, then unsuccessfully appealed the refusal to adjourn to both the EAT and the Court of Appeal.
At the full merits hearing, it refused to participate as it said it did not want to be seen as subjecting to the ET's jurisdiction, pending the outcome of the appeal on jurisdiction.
Having lost (badly) on the merits, it appealed the chairman's refusal to grant a review on the basis that it could not have attended for fear of submitting to the jurisdiction. The ET and then the EAT rejected this argument (and the EAT awarded costs against Harada).
The Court of Appeal has, today, dismissed Harada's further appeal. It held that it was:
"nothing short of absurd to suggest that, having failed (before the Morison EAT and Mummery LJ) to stop the merits hearing being listed, and then failed again, once it was listed, to have it adjourned, Harada could conceivably have been held to have submitted to the jurisdiction and thereby abandoned its outstanding appeal against the earlier jurisdictional ruling had it, under continued protest, participated in the merits hearing." (para 35)
It also upheld HHJ Ansell's order for costs in the EAT, holding:
"In my judgment, after considering the facts of this case in some detail, it would have been very surprising had the Ansell EAT not made a costs order against Harada: there had never been any realistic prospect of a successful review application." (para 44)
Harada challenged the tribunal's jurisdiction as the employee worked overseas. They employment tribunal found it had jurisdiction. Harada's appeal to the EAT was dismissed, so it appealed to the Court of Appeal. The merits hearing was listed in the meantime, and Harada unsuccessfully applied to adjourn the merits hearing, then unsuccessfully appealed the refusal to adjourn to both the EAT and the Court of Appeal.
At the full merits hearing, it refused to participate as it said it did not want to be seen as subjecting to the ET's jurisdiction, pending the outcome of the appeal on jurisdiction.
Having lost (badly) on the merits, it appealed the chairman's refusal to grant a review on the basis that it could not have attended for fear of submitting to the jurisdiction. The ET and then the EAT rejected this argument (and the EAT awarded costs against Harada).
The Court of Appeal has, today, dismissed Harada's further appeal. It held that it was:
"nothing short of absurd to suggest that, having failed (before the Morison EAT and Mummery LJ) to stop the merits hearing being listed, and then failed again, once it was listed, to have it adjourned, Harada could conceivably have been held to have submitted to the jurisdiction and thereby abandoned its outstanding appeal against the earlier jurisdictional ruling had it, under continued protest, participated in the merits hearing." (para 35)
It also upheld HHJ Ansell's order for costs in the EAT, holding:
"In my judgment, after considering the facts of this case in some detail, it would have been very surprising had the Ansell EAT not made a costs order against Harada: there had never been any realistic prospect of a successful review application." (para 44)
Monday, 1 December 2003
A reminder...
[An advertisement for freelance solicitors for Sherrards appears below]
I rarely send out reminders about commencement dates, but since so much is = happening today (and tomorrow), I thought I would make an exception.
The following are coming into force today...
1. prohibition on discrimination on grounds of sexual orientation
2. ban on hand-held mobile telephones in cars, with liability for employers
3. the EOC Code of Practice on Equal Pay
and tomorrow...
4. prohibition on discrimination on grounds of religion or belief.
Remember how in April 2003, the government promised that it would arrange for harmonisation of commencement dates for employment legislation (bulletin 6/4/03)? It promised all new regulations would commence from one of two trigger dates, 6th April or 1st October. So it's nice that they're keeping their promise.
I rarely send out reminders about commencement dates, but since so much is = happening today (and tomorrow), I thought I would make an exception.
The following are coming into force today...
1. prohibition on discrimination on grounds of sexual orientation
2. ban on hand-held mobile telephones in cars, with liability for employers
3. the EOC Code of Practice on Equal Pay
and tomorrow...
4. prohibition on discrimination on grounds of religion or belief.
Remember how in April 2003, the government promised that it would arrange for harmonisation of commencement dates for employment legislation (bulletin 6/4/03)? It promised all new regulations would commence from one of two trigger dates, 6th April or 1st October. So it's nice that they're keeping their promise.
Friday, 28 November 2003
New EAT Decisions
[An advertisement for employment lawyers for Abbey Legal Services in = Croydon appears below]
These decisions have been placed on the EAT website this week.
Appeal - Inadequate Reasons
Bax Global Ltd v French (Lord Johnston, 20/10/03)
This is an important case for those who appear in the EAT.
The EAT found that the tribunal's reasons were inadequate. Normally,= this would result in the appeal being allowed and the case being remitted = for re-hearing.
However, in this case the EAT adjourned the appeal and directed that = the original employment tribunal provide fuller reasons for its decision. = It did this following a recent Court of Appeal decision allowing this appro= ach in the personal injury context, and directly contrary to established EA= T convention. Indeed, this approach (adjourning the appeal and asking the = tribunal to provide further reasons) was prohibited by an earlier division = of the Court of Appeal in Tran.
With luck, other divisions of the EAT will follow this approach, whic= h should reduce the number of 'technical' appeals based upon complaints of = inadequate reasoning rather than genuine errors of law.
-------------------------------------------------------------------------
Implied Term of Trust and Confidence
Billington v Michael Hunter & Sons Ltd (HHJ Richardson, 16/10/03)
If an employer tells an employee that she is likely to face dismissal= but may, instead, resign on a generous resignation package, this is conduc= t likely to damage or destroy the employment relationship. Therefore unles= s the employer establishes it had reasonable and proper cause for acting in= the way it did, it is in breach of trust and confidence and the employee c= an claim constructive dismissal.
These decisions have been placed on the EAT website this week.
Appeal - Inadequate Reasons
Bax Global Ltd v French (Lord Johnston, 20/10/03)
This is an important case for those who appear in the EAT.
The EAT found that the tribunal's reasons were inadequate. Normally,= this would result in the appeal being allowed and the case being remitted = for re-hearing.
However, in this case the EAT adjourned the appeal and directed that = the original employment tribunal provide fuller reasons for its decision. = It did this following a recent Court of Appeal decision allowing this appro= ach in the personal injury context, and directly contrary to established EA= T convention. Indeed, this approach (adjourning the appeal and asking the = tribunal to provide further reasons) was prohibited by an earlier division = of the Court of Appeal in Tran.
With luck, other divisions of the EAT will follow this approach, whic= h should reduce the number of 'technical' appeals based upon complaints of = inadequate reasoning rather than genuine errors of law.
-------------------------------------------------------------------------
Implied Term of Trust and Confidence
Billington v Michael Hunter & Sons Ltd (HHJ Richardson, 16/10/03)
If an employer tells an employee that she is likely to face dismissal= but may, instead, resign on a generous resignation package, this is conduc= t likely to damage or destroy the employment relationship. Therefore unles= s the employer establishes it had reasonable and proper cause for acting in= the way it did, it is in breach of trust and confidence and the employee c= an claim constructive dismissal.
Friday, 21 November 2003
Pension Losses: 3rd edtn. of Guidelines published
The Employment Tribunal Compensation for Loss of Pension Rights booklet, 3rd edtn., is being published on Monday.
It replaces the 2nd edition, published in 1991, which was criticised by the EAT in Clancy v Cannock Chase Tech [2001] IRLR 331 as being over-simplistic. Rumour has it that the 3rd edition, which is the bible used by tribunal chairman when there is no actuarial evidence, is very different from the draft version which was put out to consultation earlier this year.
The booklet is available from The Stationary Office or 0870 240 3701 price £10.75.
It replaces the 2nd edition, published in 1991, which was criticised by the EAT in Clancy v Cannock Chase Tech [2001] IRLR 331 as being over-simplistic. Rumour has it that the 3rd edition, which is the bible used by tribunal chairman when there is no actuarial evidence, is very different from the draft version which was put out to consultation earlier this year.
The booklet is available from The Stationary Office or 0870 240 3701 price £10.75.
New EC Employment Website
The European Commission DG Employment and Social Affairs Department has, today, launched a new website.
According to the Press Release, it "brings together a wealth of legislation, documentation and publications on the subject of labour law and work organisation. Not only will it provide access to a lot of information for the general public but it will also be an excellent source of information for social partners, researchers and national administrations."
According to the Press Release, it "brings together a wealth of legislation, documentation and publications on the subject of labour law and work organisation. Not only will it provide access to a lot of information for the general public but it will also be an excellent source of information for social partners, researchers and national administrations."
Thursday, 20 November 2003
Illegality - Colen v Cebrian
The Court of Appeal has, today, handed down its judgment in Colen & anor. v Cebrian (UK) Ltd.
The case deals with whether a tribunal has jurisdiction to hear unfair and wrongful dismissal claims where the contract of employment is tainted with illegality.
Most of the three judgments (Waller, Carnwath and Peter Gibson LJJ) deal with whether the tribunal was entitled to make the findings of fact that it did. There is a useful summary of existing caselaw at paras. 21-23 of Waller LJ's judgment. But two points of interest emerge from the case:
(1) the burden of proof is firmly on the employer to establish illegality, not on the employee to establish he is entitled to bring a claim;
(2) there is nothing illegal or objectionable in an employer agreeing that remuneration shall be paid jointly to husband and wife in respect of services provided by them as a team, notwithstanding that the precise division of remuneration may not be agreed and may fluctuate from time to time to minimise tax exposure.
The case deals with whether a tribunal has jurisdiction to hear unfair and wrongful dismissal claims where the contract of employment is tainted with illegality.
Most of the three judgments (Waller, Carnwath and Peter Gibson LJJ) deal with whether the tribunal was entitled to make the findings of fact that it did. There is a useful summary of existing caselaw at paras. 21-23 of Waller LJ's judgment. But two points of interest emerge from the case:
(1) the burden of proof is firmly on the employer to establish illegality, not on the employee to establish he is entitled to bring a claim;
(2) there is nothing illegal or objectionable in an employer agreeing that remuneration shall be paid jointly to husband and wife in respect of services provided by them as a team, notwithstanding that the precise division of remuneration may not be agreed and may fluctuate from time to time to minimise tax exposure.
Thursday, 13 November 2003
TUPE - Celtec v Astley
In a judgment handed down this morning, the House of Lords has referred the Celtec v Astley case to the ECJ.
Facts
Prior to 1990, vocational training and enterprise activities were managed by the Department of Education. In 1989, the government announced the creation of Training and Enterprise Councils (known as TECs). Approximately 80 TECs were set up, using (in the main) the same premises, databases and staff as had been doing the job under the Department of Education. They took over the Department of Education's existing contracts with suppliers and other third parties.
This case was concerned with the North Wales TEC, which began operations in about September 1990. In common with the other TECs, it was a company limited by guarantee and was initially staffed by civil servants, previously working for the Department of Education, who were seconded out for a 3-year period to the TEC. The terms of secondment provided that they continued to be civil servants and that, at the end of the period, they could extend the period of secondment or return to normal civil service duties.
In September 1991 the government decided to end the secondments and arrange for staff to be directly employed by the TECs. Following a period of consultation, all staff were offered the opportunity to return to the civil service at the end of their secondment, or resign from the civil service and enter into contracts of employment with the TEC. Many employees, including the Respondents to this appeal, adopted the latter option. The three in question, who brought their claims as test cases, resigned and entered into new contracts in about October 1993 (although the process extended until 1996 for other employees).
If the TUPE transfer took place in September 1990, then "at the time of the transfer" (being the wording in ERA 1996, s218, dealing with continuity of employment) the employees were, and remained, employees of the Department of Employment. Thus s218 would not grant them continuity of employment.
If, however, the TUPE transfer was a gradual process occurring between September 1990 and October 1996 (as the staff transferred), then the employees would have retained continuity of employment for their years spent with the civil service.
Issues Referred to ECJ
(I am paraphrasing the questions posed by the House of Lords)
1. Should the phrase "rights and obligations...existing on the date of a transfer", in the Acquired Rights Directive (which gave rise to TUPE and which had direct effect) be interpreted as meaning that there is a particular point in time at which the undertaking is deemed to have transferred?
2. If so, how is that date to be ascertained when a transfer takes place as a series of transactions over a period of time?
3. If not, how should the words 'on the date of a transfer' be interpreted?
Facts
Prior to 1990, vocational training and enterprise activities were managed by the Department of Education. In 1989, the government announced the creation of Training and Enterprise Councils (known as TECs). Approximately 80 TECs were set up, using (in the main) the same premises, databases and staff as had been doing the job under the Department of Education. They took over the Department of Education's existing contracts with suppliers and other third parties.
This case was concerned with the North Wales TEC, which began operations in about September 1990. In common with the other TECs, it was a company limited by guarantee and was initially staffed by civil servants, previously working for the Department of Education, who were seconded out for a 3-year period to the TEC. The terms of secondment provided that they continued to be civil servants and that, at the end of the period, they could extend the period of secondment or return to normal civil service duties.
In September 1991 the government decided to end the secondments and arrange for staff to be directly employed by the TECs. Following a period of consultation, all staff were offered the opportunity to return to the civil service at the end of their secondment, or resign from the civil service and enter into contracts of employment with the TEC. Many employees, including the Respondents to this appeal, adopted the latter option. The three in question, who brought their claims as test cases, resigned and entered into new contracts in about October 1993 (although the process extended until 1996 for other employees).
If the TUPE transfer took place in September 1990, then "at the time of the transfer" (being the wording in ERA 1996, s218, dealing with continuity of employment) the employees were, and remained, employees of the Department of Employment. Thus s218 would not grant them continuity of employment.
If, however, the TUPE transfer was a gradual process occurring between September 1990 and October 1996 (as the staff transferred), then the employees would have retained continuity of employment for their years spent with the civil service.
Issues Referred to ECJ
(I am paraphrasing the questions posed by the House of Lords)
1. Should the phrase "rights and obligations...existing on the date of a transfer", in the Acquired Rights Directive (which gave rise to TUPE and which had direct effect) be interpreted as meaning that there is a particular point in time at which the undertaking is deemed to have transferred?
2. If so, how is that date to be ascertained when a transfer takes place as a series of transactions over a period of time?
3. If not, how should the words 'on the date of a transfer' be interpreted?
Wednesday, 12 November 2003
Legal Services Commission can be sued for Discrimination
The Court of Appeal has handed down its decision in Legal Services Commission v Yvonne Patterson, overturning the decision of the EAT.
Ms Patterson is a sole practitioner whose firm is overwhelmingly (98%) made up of legal aid work. She brought a claim in the tribunal under the Race Relations Act 1976 when she was refused a franchise, alleging that she had been discriminated against on grounds of race.
The Court of Appeal has held that the tribunal has jurisdiction to consider such a claim, because:
This decision may result in a large number of unsuccessful franchisee applicants, particularly sole practitioners, bringing discrimination claims against the Legal Services Commission. (It does not, of course, mean they will win!)
Ms Patterson is a sole practitioner whose firm is overwhelmingly (98%) made up of legal aid work. She brought a claim in the tribunal under the Race Relations Act 1976 when she was refused a franchise, alleging that she had been discriminated against on grounds of race.
The Court of Appeal has held that the tribunal has jurisdiction to consider such a claim, because:
- (a) although Ms Paterson would not be an 'employee' of the Legal Services Commission (since she would not be required to 'personally execute any work or labour', so as to bring her within the definition of an 'employee');
- (b) a legal aid franchise is an 'authorisation or qualification' and, as the body which awards that authorisation or qualification, the Legal Services Commissions had a duty not to discriminate under section 12 of the Act.
This decision may result in a large number of unsuccessful franchisee applicants, particularly sole practitioners, bringing discrimination claims against the Legal Services Commission. (It does not, of course, mean they will win!)
Thursday, 6 November 2003
New EAT Decisions
COSTS
Metropolitan Police v Logan (HHJ Serota, 31/10/02 and 20/9/03)
The EAT's power to award costs includes cases where the receiving party's costs are being met by a trade union. The fact that a union is paying the bill does not offend the indemnity principle.
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HUMAN RIGHTS
Pay v Lancashire Probation Service (HHJ McMullen, 29/10/03)
Mr Pay was a probation officer, responsible (amongst other things) for dealing with sex offenders and their victims. In his spare time, he ran a company selling bondage, domination and sado-masochism merchandise through a website. He also had involvement with a club called 'Club Lash'. The probation service dismissed him on the grounds that his extra-curricular activities, advertised in the public domain, were inconsistent with the duties of a probation officer dealing with victims of sex crimes and would bring the probation service into disrepute. The tribunal found the dismissal was fair and, in particular, did not offend Mr Pay's rights under the European Convention of Human Rights.
The EAT upheld the finding of a fair dismissal. Article 6 (right to private life etc.) was not engaged because, by advertising on a web-site, Mr Pay's activities had been brought into the public domain. Although article 10 (freedom of expression) was engaged, the EAT upheld the tribunal's conclusion that the probation service's right to uphold its reputation, when balanced against Mr Pay's right to freedom of expression, meant that the probation service was entitled to dismiss him.
Metropolitan Police v Logan (HHJ Serota, 31/10/02 and 20/9/03)
The EAT's power to award costs includes cases where the receiving party's costs are being met by a trade union. The fact that a union is paying the bill does not offend the indemnity principle.
--------------------------------------------------------------------------------
HUMAN RIGHTS
Pay v Lancashire Probation Service (HHJ McMullen, 29/10/03)
Mr Pay was a probation officer, responsible (amongst other things) for dealing with sex offenders and their victims. In his spare time, he ran a company selling bondage, domination and sado-masochism merchandise through a website. He also had involvement with a club called 'Club Lash'. The probation service dismissed him on the grounds that his extra-curricular activities, advertised in the public domain, were inconsistent with the duties of a probation officer dealing with victims of sex crimes and would bring the probation service into disrepute. The tribunal found the dismissal was fair and, in particular, did not offend Mr Pay's rights under the European Convention of Human Rights.
The EAT upheld the finding of a fair dismissal. Article 6 (right to private life etc.) was not engaged because, by advertising on a web-site, Mr Pay's activities had been brought into the public domain. Although article 10 (freedom of expression) was engaged, the EAT upheld the tribunal's conclusion that the probation service's right to uphold its reputation, when balanced against Mr Pay's right to freedom of expression, meant that the probation service was entitled to dismiss him.
Wednesday, 5 November 2003
New ACAS Guides - Final Version
Further to my Email of yesterday (announcing the draft versions), the final version of ACAS's guides to sexual orientation discrimination, and to discrimination on grounds of religion/belief, have now been published.
The links are:
Sexual orientation
Religion
I had several complaints yesterday that the links did not work. They do work - but ACAS's website cannot cope with the flurry of demand when the recipients of this bulletin all click on the link simultaneously. As the advert says, if you can't get through, try again later.
(Thanks to Victoria Wright of Vizold Oldham for telling me the final version had been published)
The links are:
Sexual orientation
Religion
I had several complaints yesterday that the links did not work. They do work - but ACAS's website cannot cope with the flurry of demand when the recipients of this bulletin all click on the link simultaneously. As the advert says, if you can't get through, try again later.
(Thanks to Victoria Wright of Vizold Oldham for telling me the final version had been published)
Tuesday, 4 November 2003
New ACAS Guides
ACAS has, today, published draft guides on discrimination on:
(a) sexual orientation discrimination; and,
(b) discrimination on grounds of religion/belief.
The guides are really, really good. They are not that long, and contain a comprehensive summary of the new law, worked case examples, suggestions as to what practices employers should follow or avoid, and a useful Q&A section. If you haven't read the legislation itself (and even if you have), these two documents are well worth reading.
(a) sexual orientation discrimination; and,
(b) discrimination on grounds of religion/belief.
The guides are really, really good. They are not that long, and contain a comprehensive summary of the new law, worked case examples, suggestions as to what practices employers should follow or avoid, and a useful Q&A section. If you haven't read the legislation itself (and even if you have), these two documents are well worth reading.
Monday, 3 November 2003
Statutory Dispute Resolution
[An advertisement for an employment lawyer at nicholasfrimond, Guildford, appears below]
The DTI has produced a website summarising the anticipated changes (and implications) of the forthcoming statutory disciplinary and grievance procedur= es.
Along with copies of government press releases, there is a copy of a DTI training Powerpoint presentation.
Alternatively, I have now put my seminar Powerpoint presentation on the web (to accompany my seminar notes on the forthcoming changes, which were put on the web in July).
The DTI has produced a website summarising the anticipated changes (and implications) of the forthcoming statutory disciplinary and grievance procedur= es.
Along with copies of government press releases, there is a copy of a DTI training Powerpoint presentation.
Alternatively, I have now put my seminar Powerpoint presentation on the web (to accompany my seminar notes on the forthcoming changes, which were put on the web in July).
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