The Court of Appeal has, this morning, handed down its judgment in Bangs v Connex South Eastern on the question of whether lengthy delay by a tribunal when promulgating its decision is, of itself, a ground of appeal.
This case was heard as one of four similar cases by the EAT under the conjoined title Kwamin v Abbey National (see bulletin 9th March 2004). There was a gap of 14 months between ending the evidence and issuing the written decision.
The Court of Appeal has set out a more stringent approach than the EAT did on the question of delay in issuing the decision. It made it clear that no appeal can lie on the basis of facts found by the tribunal so - differing from the EAT - even if delay meant the tribunal had got the facts wrong (short of a plain case of perversity), this was NOT a valid ground of appeal (see para 42). The Court of Appeal did hypothosise, though, that a claim might lie against the State in such circumstances (para. 51).
The Court of Appeal set out clear guidelines dealing with the consequence of delay, at para. 43 of its decision. The essence is that, in the absence of perversity, delay will not normally be a ground of appeal. It emphasised that most tribunals do issue decisions within the target period of 3.5 months after conclusion of the hearing, and that this 'delay' issue should rarely arise in practice.
Yaya Bangs v Connex South Eastern Ltd.
Thursday, 27 January 2005
Making more of Alternative Dispute Resolution
Acas has, today, issued the first in a new series of policy discussion papers.
This paper, entitled 'Making more of Alternative Dispute Resolution', is a thoughtful analysis over 16 pages of trends, advantages and possible future of conciliation and mediation as ways of resolving workplace disputes.
Acas Policy Discussion paper - Making more of Alternative Dispute Resolution
This paper, entitled 'Making more of Alternative Dispute Resolution', is a thoughtful analysis over 16 pages of trends, advantages and possible future of conciliation and mediation as ways of resolving workplace disputes.
Acas Policy Discussion paper - Making more of Alternative Dispute Resolution
Tuesday, 25 January 2005
Redundancy - Collective Consultation
It is well known that the collective consultation provisions in s188 of TULR(C)A 1988 are engaged when an employer is 'proposing to dismiss' as redundant more than 20 employees within 90 days. The obligations can be quite onerous, with breach leading to a protective award of up to 90 days' pay for each affected employee.
In Hardy v Tourism South East, the EAT (HHJ Richardson presiding) confirmed that the collective consultation obligations are engaged even when the employer intends to offer alternative employment to the majority of employees, thereby bringing the number actually dismissed below twenty.
The rationale is that the employer is still 'proposing to dismiss' more than 20 employees, even if alternative employment is offered to some or all of them.
This case should serve as a warning to lawyers advising on general business restructures, where fundamental changes in job duties / working patterns etc. can be regarded as redundancy dismissals (within the extended meaning for the collective consultation obligations) and offers to re-engage on different terms and conditions.
Hardy v Tourism South East
In Hardy v Tourism South East, the EAT (HHJ Richardson presiding) confirmed that the collective consultation obligations are engaged even when the employer intends to offer alternative employment to the majority of employees, thereby bringing the number actually dismissed below twenty.
The rationale is that the employer is still 'proposing to dismiss' more than 20 employees, even if alternative employment is offered to some or all of them.
This case should serve as a warning to lawyers advising on general business restructures, where fundamental changes in job duties / working patterns etc. can be regarded as redundancy dismissals (within the extended meaning for the collective consultation obligations) and offers to re-engage on different terms and conditions.
Hardy v Tourism South East
Abuse of Process: Issuing contract claims in the High Court after employment tribunal proceedings struck out
The Court of Appeal has handed down its judgment in London Borough of Enfield v Sivanandan - a highly complex decision.
Ignoring the facts completely, the principles that can be extracted are:
(1) if a breach of contract claim is struck out (rather than withdrawn) by an employment tribunal, it is an abuse of process to re-issue it in the High Court. The rule in Sajid v Chowdhury 2001 (reported at [2002] IRLR 113, CA) - i.e. that a Claimant can withdraw a contract claim and re-issue in the High Court to avoid the £25,000 cap on damages - does not apply if the employment tribunal claim is struck out (judgment para. 120)
(2) if a Claimant wishes to withdraw such a claim in the employment tribunal, it is incumbent on the tribunal to record the position on the face of the decision (para. 122) - and thus incumbent on the Claimant to ASK the tribunal to record the reason for withdrawal on the face of the decision.
(3) even where a breach of contract claim IS properly withdrawn in the employment tribunal, it is nevertheless an abuse of process to re-issue it in the High Court if existing claims in the employment tribunal cover the same facts and have unlimited compensation. In Sajid (above), the Applicant could not recover unlimited damages OTHER than by re-issuing his claim in the High Court. If a Claimant in employment tribunal proceedings was also claiming discrimination in respect of the dismissal, which carried an uncapped award, it is open to a tribunal to award compensation reflecting a Claimant's real losses. Since there is no need for the Claimant to withdraw and re-issue a breach of contract claim, to do so is an abuse of process judgment, para. 133)
A word of warning: do not read this decision unless you are willing to risk a major headache.
Ignoring the facts completely, the principles that can be extracted are:
(1) if a breach of contract claim is struck out (rather than withdrawn) by an employment tribunal, it is an abuse of process to re-issue it in the High Court. The rule in Sajid v Chowdhury 2001 (reported at [2002] IRLR 113, CA) - i.e. that a Claimant can withdraw a contract claim and re-issue in the High Court to avoid the £25,000 cap on damages - does not apply if the employment tribunal claim is struck out (judgment para. 120)
(2) if a Claimant wishes to withdraw such a claim in the employment tribunal, it is incumbent on the tribunal to record the position on the face of the decision (para. 122) - and thus incumbent on the Claimant to ASK the tribunal to record the reason for withdrawal on the face of the decision.
(3) even where a breach of contract claim IS properly withdrawn in the employment tribunal, it is nevertheless an abuse of process to re-issue it in the High Court if existing claims in the employment tribunal cover the same facts and have unlimited compensation. In Sajid (above), the Applicant could not recover unlimited damages OTHER than by re-issuing his claim in the High Court. If a Claimant in employment tribunal proceedings was also claiming discrimination in respect of the dismissal, which carried an uncapped award, it is open to a tribunal to award compensation reflecting a Claimant's real losses. Since there is no need for the Claimant to withdraw and re-issue a breach of contract claim, to do so is an abuse of process judgment, para. 133)
A word of warning: do not read this decision unless you are willing to risk a major headache.
Monday, 24 January 2005
Incapacity Benefit
The EAT has handed down an important decision on compensation for unfair dismissal, in Morgans v Alpha Plus Security Ltd.
It has long been the practice in tribunals to reduce the compensatory award by 50% of any incapacity benefit received by a Claimant. Thus if losses of earnings are £10,000, and the Claimant has received £2,000 in incapacity benefit, his award will be reduced by 50% of £2,000 - i.e. to £9,000.
This rule, known as the rule in Rubenstein v McGloughlin, has now been overturned.
The Employment Appeal Tribunal (Burton P. presiding) has held that tribunals must deduct the ENTIRE amount of incapacity benefit from the compensatory award. To fail to do so would result in a wrongful windfall to the Claimant (para. 22.4). Receiving incapacity benefit, says the EAT, is a form of mitigation of loss (para. 18), and the monies must be deducted in full.
The EAT left open the question of whether a Claimant who fails to apply for incapacity benefit can be said to have failed to mitigate his loss (also para. 18) - a question which will give Respondent representatives some new approaches for cross-examination.
[Thanks to Andrew Knorpel of ASB Law, who successfully represented the employer, for telling me this decision was out]
Morgans v Alpha Plus Security Ltd.
It has long been the practice in tribunals to reduce the compensatory award by 50% of any incapacity benefit received by a Claimant. Thus if losses of earnings are £10,000, and the Claimant has received £2,000 in incapacity benefit, his award will be reduced by 50% of £2,000 - i.e. to £9,000.
This rule, known as the rule in Rubenstein v McGloughlin, has now been overturned.
The Employment Appeal Tribunal (Burton P. presiding) has held that tribunals must deduct the ENTIRE amount of incapacity benefit from the compensatory award. To fail to do so would result in a wrongful windfall to the Claimant (para. 22.4). Receiving incapacity benefit, says the EAT, is a form of mitigation of loss (para. 18), and the monies must be deducted in full.
The EAT left open the question of whether a Claimant who fails to apply for incapacity benefit can be said to have failed to mitigate his loss (also para. 18) - a question which will give Respondent representatives some new approaches for cross-examination.
[Thanks to Andrew Knorpel of ASB Law, who successfully represented the employer, for telling me this decision was out]
Morgans v Alpha Plus Security Ltd.
Friday, 14 January 2005
Shifting Burden of Proof
In Webster v Brunel University, the EAT has decided what it describes as a "novel point" on the shifting of the burden of proof in discrimination cases.
The Claimant was on the telephone to a co-employee. She overheard someone else in the room say 'Paki'. There was no evidence on whether that person was an employee or a visitor.
The tribunal found that she had failed to establish that the individual was an employee, so the burden of proof did not shift to the Respondent to disprove discrimination.
The EAT (Burton P. presiding) reversed this decision and remitted the case. They held (para. 34) that once the employee established a prima facie case that the speaker COULD have been an employee, the burden shifts and it is for the Respondent to DISPROVE that the speaker was an employee.
Helpfully, the decision reviews all the recent cases on the shifting burden of proof - and so should become a key case when dealing with this tricky issue.
Webster v Brunel University
The Claimant was on the telephone to a co-employee. She overheard someone else in the room say 'Paki'. There was no evidence on whether that person was an employee or a visitor.
The tribunal found that she had failed to establish that the individual was an employee, so the burden of proof did not shift to the Respondent to disprove discrimination.
The EAT (Burton P. presiding) reversed this decision and remitted the case. They held (para. 34) that once the employee established a prima facie case that the speaker COULD have been an employee, the burden shifts and it is for the Respondent to DISPROVE that the speaker was an employee.
Helpfully, the decision reviews all the recent cases on the shifting burden of proof - and so should become a key case when dealing with this tricky issue.
Webster v Brunel University
Wednesday, 12 January 2005
The Information and Consultation of Employees Regulations 2004...
... are now available on the HMSO website. They were passed last month, and have just been placed on the internet.
The Regulations come into force on 6th April 2005, applying intitially to 'undertakings' with at least 150 employees. From 6th April 2007, they will apply to undertakings with at least 100 employees, and to undertakings with at least 50 employees from 6th April 2008.
Subject to a request from a sufficient number of employees, it places an obligation on the employer to provide information (and to consult with) with the workforce over:
(a) the recent and probable development of the undertaking's activities and economic situation;
(b) the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular, where there is a threat to employment within the undertaking; and
(c) decisions likely to lead to substantial changes in work organisation or in contractual relations, including collective redundancies or TUPE transfers.
If an employer fails to comply (note: there is an express duty to cooperate), an application is made to the CAC, which will make such orders as it thinks fit. If the employer fails to comply with those orders, the Employment Appeal Tribunal can impose a fine of up to £75,000.
The Information and Consultation of Employees Regulations 2004
[thanks to Raymond Jeffers, chairman of the Employment Lawyers' Association, whose nocturnal surfing habits led to discovery of these Regulations!]
The Regulations come into force on 6th April 2005, applying intitially to 'undertakings' with at least 150 employees. From 6th April 2007, they will apply to undertakings with at least 100 employees, and to undertakings with at least 50 employees from 6th April 2008.
Subject to a request from a sufficient number of employees, it places an obligation on the employer to provide information (and to consult with) with the workforce over:
(a) the recent and probable development of the undertaking's activities and economic situation;
(b) the situation, structure and probable development of employment within the undertaking and on any anticipatory measures envisaged, in particular, where there is a threat to employment within the undertaking; and
(c) decisions likely to lead to substantial changes in work organisation or in contractual relations, including collective redundancies or TUPE transfers.
If an employer fails to comply (note: there is an express duty to cooperate), an application is made to the CAC, which will make such orders as it thinks fit. If the employer fails to comply with those orders, the Employment Appeal Tribunal can impose a fine of up to £75,000.
The Information and Consultation of Employees Regulations 2004
[thanks to Raymond Jeffers, chairman of the Employment Lawyers' Association, whose nocturnal surfing habits led to discovery of these Regulations!]
Information and Consultation 2
Today seems to be a big day for I & C fans.
The DTI has, this morning, published its Guidance Notes on the new I & C Regulations. At 66 pages, it's quite lengthy, but it looks a much easier read than the Regulations themselves.
DTI Guidance Notes
The DTI has, this morning, published its Guidance Notes on the new I & C Regulations. At 66 pages, it's quite lengthy, but it looks a much easier read than the Regulations themselves.
DTI Guidance Notes
Tuesday, 4 January 2005
Managing Dismissals: Practical Guidance on the Art of Dismissing Fairly - NEW EDITION
by
Daniel Barnett
December 2004
The new edition of Managing Dismissals Fairly is updated to be fully compliant with the statutory disciplinary and dismissal procedures introduced in October 2004.
The text provides strategic advice on how to dismiss someone, as well as explaining the legal implications. Presented in an easy-to-read format, it is highly practical and addresses unfair dismissal from the point of view of the employer contemplating dismissal of a particular employee. Chapters are organised under headings such as 'How to dismiss for sickness absence', 'How to dismiss for computer misuse', 'What you must pay' and 'What to do when things go wrong'.
Published by Tolley IRS, £38
The easiest ways to purchase the book is via Hammicks Legal Bookshop or Amazon. See below for details of both.
Clicking the link below will allow you to fill in an order form which will be passed directly to Hammicks Legal Bookshops.
ADVANTAGES:
NOTE: Hammicks charge £2.50 for p&p
Click here to purchase via Hammicks
Amazon is the world's largest online bookseller.
It requires credit / debit card payment in advance.
Orders may take a week or two to arrive if ordered via Amazon as they are not specialist legal booksellers and will need to purchase the copy from the publishers themselves before shipping it to you. You can select 'super saver' delivery for free delivery.
Click here to purchase via amazon.co.uk
ELA Briefing (April 2003, p48)
----------------------------------
"well presented and easy to use...of particular help to a human resources department or to a lawyer advising a small employer without the luxury of a HR department
"an extremely useful book for the minutiae of dismissal procedure, and one which I can recommend highly."
JSB Employment LawLetter (April 2003)
--------------------------------------------
"combines authoritative legal writing with practical, workplace relevant, easy to read text...
"Personnel managers will find this slim paperback (under 250 pages) more useful than many books double the size."
Reviews of 'Avoiding Unfair Dismissals' (as this book was called when published by another publisher)
---------------------------------------------------------------
"In a practical rather than academic style, the book shows employers the practical steps they need to take before dismissing staff, how to gather evidence against employees, and how to handle the dismissal itself successfully" - The Independent, 4th April 1999
"The style is readable throughout and the author employs an innovative structure, with each chapter broken down into different factual situations. Readers who have to cope with these specific circumstances will find the book a valuable tool, as it provides clear, practical guidance." - People Management Magazine, 15th July 1999
"The book is practically written with the first ten chapters devoted to how to dismiss someone for a variety of reasons ranging for incapability and redundancy to breaches of discipline and criminal acts. The remaining chapters highlight the amounts you must pay upon dismissal, and the amount you may pay if you get it wrong, as well as showing a few of the more common pitfalls." The Legal Executive, August 1999
"A first class book...written in straightforward English." - Hardware & Garden Review, October 2001
Daniel Barnett
December 2004
The new edition of Managing Dismissals Fairly is updated to be fully compliant with the statutory disciplinary and dismissal procedures introduced in October 2004.
The text provides strategic advice on how to dismiss someone, as well as explaining the legal implications. Presented in an easy-to-read format, it is highly practical and addresses unfair dismissal from the point of view of the employer contemplating dismissal of a particular employee. Chapters are organised under headings such as 'How to dismiss for sickness absence', 'How to dismiss for computer misuse', 'What you must pay' and 'What to do when things go wrong'.
Published by Tolley IRS, £38
The easiest ways to purchase the book is via Hammicks Legal Bookshop or Amazon. See below for details of both.
Purchase via Hammicks Legal Bookshop
Clicking the link below will allow you to fill in an order form which will be passed directly to Hammicks Legal Bookshops.
ADVANTAGES:
- - Hammicks does not require advance payment; they will invoice you / your firm.
- - Hammicks have a large number of books in stock and this will be the swiftest ordering method
NOTE: Hammicks charge £2.50 for p&p
Click here to purchase via Hammicks
Purchase via amazon.co.uk
Amazon is the world's largest online bookseller.
It requires credit / debit card payment in advance.
Orders may take a week or two to arrive if ordered via Amazon as they are not specialist legal booksellers and will need to purchase the copy from the publishers themselves before shipping it to you. You can select 'super saver' delivery for free delivery.
Click here to purchase via amazon.co.uk
Reviews of Previous Edition
ELA Briefing (April 2003, p48)
----------------------------------
"well presented and easy to use...of particular help to a human resources department or to a lawyer advising a small employer without the luxury of a HR department
"an extremely useful book for the minutiae of dismissal procedure, and one which I can recommend highly."
JSB Employment LawLetter (April 2003)
--------------------------------------------
"combines authoritative legal writing with practical, workplace relevant, easy to read text...
"Personnel managers will find this slim paperback (under 250 pages) more useful than many books double the size."
Reviews of 'Avoiding Unfair Dismissals' (as this book was called when published by another publisher)
---------------------------------------------------------------
"In a practical rather than academic style, the book shows employers the practical steps they need to take before dismissing staff, how to gather evidence against employees, and how to handle the dismissal itself successfully" - The Independent, 4th April 1999
"The style is readable throughout and the author employs an innovative structure, with each chapter broken down into different factual situations. Readers who have to cope with these specific circumstances will find the book a valuable tool, as it provides clear, practical guidance." - People Management Magazine, 15th July 1999
"The book is practically written with the first ten chapters devoted to how to dismiss someone for a variety of reasons ranging for incapability and redundancy to breaches of discipline and criminal acts. The remaining chapters highlight the amounts you must pay upon dismissal, and the amount you may pay if you get it wrong, as well as showing a few of the more common pitfalls." The Legal Executive, August 1999
"A first class book...written in straightforward English." - Hardware & Garden Review, October 2001
Friday, 31 December 2004
Employment Relations Act 2004
Further provisions of the Employment Relations Act 2004 come into force today (31st December). These provisions allow trade unions to expel members who have extreme political views which conflict with the rules or objectives of the union.
Also coming into force today are changes giving tribunals greater discretion for setting compensation where an exlcusion or expulsion is unlawful.
Employment Relations Act 2004
Also coming into force today are changes giving tribunals greater discretion for setting compensation where an exlcusion or expulsion is unlawful.
Employment Relations Act 2004
Thursday, 16 December 2004
EAT Conciliation Protocol
The EAT Conciliation Protocol has now been placed on the EAT website (see bulletin 10/12/04, below). At the time of writing, the 2004 Practice Direction, which came into force last week, is still awaited.
EAT Conciliation Protocol
---------------------------------------------------
BULLETIN 10 / 12 / 04
New EAT Practice Direction
-----------------------------
Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals
---------------------------------------
Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
EAT Conciliation Protocol
---------------------------------------------------
BULLETIN 10 / 12 / 04
New EAT Practice Direction
-----------------------------
Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals
---------------------------------------
Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
Consulation on Definition of Disability
The Disability Discrimination Bill is currently undergoing its second reading in the House of Lords (see bulletin 6/12/04).
Whilst the Bill is mainly concerned with matters relating to issues outside the employment relationship, it involves an extension to the definition of disability to automatically cover some people with cancer, HIV and multiple sclerosis from the point of diagnosis, irrespective of whether they can establish the necessary adverse effect on their ability to carry out day-to-day activities.
The DWP has today issued a consultation paper on, amongst other things, excluding certain cancers from the scope of the extended definition. The document proposes excluding the most common cancers which are not considered to require substantial treatment and it identifies a list of the cancers to be excluded (e.g. basal cell carcinomas and Bowen's Disease);
Consultation Document (57 pages - takes a while to download)
Whilst the Bill is mainly concerned with matters relating to issues outside the employment relationship, it involves an extension to the definition of disability to automatically cover some people with cancer, HIV and multiple sclerosis from the point of diagnosis, irrespective of whether they can establish the necessary adverse effect on their ability to carry out day-to-day activities.
The DWP has today issued a consultation paper on, amongst other things, excluding certain cancers from the scope of the extended definition. The document proposes excluding the most common cancers which are not considered to require substantial treatment and it identifies a list of the cancers to be excluded (e.g. basal cell carcinomas and Bowen's Disease);
Consultation Document (57 pages - takes a while to download)
Wednesday, 15 December 2004
Rolled Up Holiday Pay 3
This old chestnut is back. In a series of conjoined appeals, under the lead case Smith v Morrisroes & Sons, the Employment Appeal Tribunal has clarified earlier guidance on rolled-up holiday pay.
The law is currently set out in the Court of Appeal's decision in Caulfields v Marshalls Clay Products (see bulletins of 4/8/03 and 6/5/04). In this new case, the Employment Appeal Tribunal recognises that the 'rolled-up' holiday pay aspect need not necessarily be set out in the written contract, as terms (such as terms rolling up holiday pay) can also be incorporated through collective agreements or, importantly, through custom and practice (see para. 11).
The amended guidelines are set out in paragraph 5 of the decision.
Note that the entire issue of whether rolled-up holiday pay is permissible under the Working Time Directive is currently the subject of a reference to the ECJ in Robinson-Steele v RF Retail Services Ltd (see bulletin 17/3/04).
Smith v AJ Morrisroes & Sons
The law is currently set out in the Court of Appeal's decision in Caulfields v Marshalls Clay Products (see bulletins of 4/8/03 and 6/5/04). In this new case, the Employment Appeal Tribunal recognises that the 'rolled-up' holiday pay aspect need not necessarily be set out in the written contract, as terms (such as terms rolling up holiday pay) can also be incorporated through collective agreements or, importantly, through custom and practice (see para. 11).
The amended guidelines are set out in paragraph 5 of the decision.
Note that the entire issue of whether rolled-up holiday pay is permissible under the Working Time Directive is currently the subject of a reference to the ECJ in Robinson-Steele v RF Retail Services Ltd (see bulletin 17/3/04).
Smith v AJ Morrisroes & Sons
Information - Commissioners Code of Practice
The Information Commissioner has just published part 4 of the Employer's Code of Practice on Data Protection.
Part 4 deals with keeping records on workers' health. It is the final part, and follows on from:
- Part 1: Recruitment and Selection
- Part 2: Employment Records
- Part 3: Monitoring at Work
The Information Commissioner has issued the main guidance (33 pages), supplementary guidance (27 pages) and Guidance for Small Businesses (6 pages).
Information Commissioner's Codes of Practice on Employment
Part 4 deals with keeping records on workers' health. It is the final part, and follows on from:
- Part 1: Recruitment and Selection
- Part 2: Employment Records
- Part 3: Monitoring at Work
The Information Commissioner has issued the main guidance (33 pages), supplementary guidance (27 pages) and Guidance for Small Businesses (6 pages).
Information Commissioner's Codes of Practice on Employment
Clementi Report issued
Nothing to do with employment law as such, but of great importance to lawyers generally...
Sir David Clementi has just published his report. It is extremely long. The key recommendations, which he urges the government to legislate upon, are:
Sir David Clementi has just published his report. It is extremely long. The key recommendations, which he urges the government to legislate upon, are:
- allowing multi-disciplinary partnerships (solicitors, barristers, accountants, management etc. all as partners)
- allowing commercial ownership of legal practices (TescoLaw). Sir David Clementi comments that "Unlike most high street solicitors, companies such as [the RAC] have nationally known brand names to protect, which may be a powerful incentive to operate in a proper manner" (Chapter F, para 22)
- a single independent body to handle all complaints, whether about barristers, solicitors or other legal service providers
- a new regulatory framework (which on the 'Model B+' basis, i.e. setting up an Oversight Regulator, the Legal Services Board, and separating regulatory from representative functions within the front-line legal bodies)
Tuesday, 14 December 2004
Age Discrimination - Retirement Proposals Published
The DTI has published its post- age discrimination retirement plans.
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Age Discrimination - Retirement Proposals Published
The DTI has published its post- age discrimination retirement plans.
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Main proposals:
- the default retirement age of 65 will be maintained, but with employees having a right to request to work beyond 65 which employers must seriously consider (oh please - anyone fancy some fudge?)
- the right to request will follow the model of the right to request flexible working - i.e. the employer has to give a reason for the refusal, but it cannot really be challenged on any sensible grounds in a tribunal.
- monitoring of the retirement age to see if it should be changed in five years time (err... so what has the DTI been doing for the last five years?)
- employers will be allowed to have a retirement age of under 65 if it can be objectively justified, i.e. if it is "appropriate and necessary".
Draft legislation on age discrimination is now being promised for consultation in the summer of 2005.
Full Text of the Statement to Parliament
Monday, 13 December 2004
Pensions Report
The Employer TaskForce on Pensions, chaired by Sir Peter Davis, has just published its report and recommendations into the pension industry.
Note that this report was commissioned by the Department for Work and Pensions. It is a DIFFERENT report from the Pension Commission's report published a couple of months ago (see bulletin 12/10/04), in respect of which recommendations are awaited next year, and is far less controversial.
The report makes a number of recommendations to employers, employees, unions, the financial services industry and the Government.
For employers:
- To recognise they have a responsibility to help fund the pensions of their employees
- To aim to achieve over time combined contribution levels of around 10-15%, with employers ideally providing 2/3 of this
- To recognise the importance of maintaining fairness in the shift from Defined Benefit to Defined Contribution (or other) schemes
For the Government:
- To provide a stable, long term framework for UK pensions with clear guidance on who should be saving, and achieve a broad policy consensus on the way ahead
- To provide stability for medium and large employers by maintaining current levels of financial support for pensions
- To tackle the challenge of pension provision among smaller businesses by introducing a new targeted financial incentive to encourage employer contributions.
For employees:
- To take responsibility for their own pension provision and contribute to their pension schemes
- To recognise employer support for pensions as a key benefit
For unions:
- To promote awareness of the need to save for retirement among their members
- Encourage their members to join good occupational pension schemes and to make contributions
For the financial services industry:
- To work with Government to review the annuities market
- To provide better service especially to smaller businesses
The report is not yet on the internet, but should be available shortly on the Pension TaskForce's website.
Website of the Employer's TaskForce on Pensions
Note that this report was commissioned by the Department for Work and Pensions. It is a DIFFERENT report from the Pension Commission's report published a couple of months ago (see bulletin 12/10/04), in respect of which recommendations are awaited next year, and is far less controversial.
The report makes a number of recommendations to employers, employees, unions, the financial services industry and the Government.
For employers:
- To recognise they have a responsibility to help fund the pensions of their employees
- To aim to achieve over time combined contribution levels of around 10-15%, with employers ideally providing 2/3 of this
- To recognise the importance of maintaining fairness in the shift from Defined Benefit to Defined Contribution (or other) schemes
For the Government:
- To provide a stable, long term framework for UK pensions with clear guidance on who should be saving, and achieve a broad policy consensus on the way ahead
- To provide stability for medium and large employers by maintaining current levels of financial support for pensions
- To tackle the challenge of pension provision among smaller businesses by introducing a new targeted financial incentive to encourage employer contributions.
For employees:
- To take responsibility for their own pension provision and contribute to their pension schemes
- To recognise employer support for pensions as a key benefit
For unions:
- To promote awareness of the need to save for retirement among their members
- Encourage their members to join good occupational pension schemes and to make contributions
For the financial services industry:
- To work with Government to review the annuities market
- To provide better service especially to smaller businesses
The report is not yet on the internet, but should be available shortly on the Pension TaskForce's website.
Website of the Employer's TaskForce on Pensions
Friday, 10 December 2004
New EAT Practice Direction
Yesterday, the EAT handed down a new Practice Direction which came IMMEDIATELY into force (9th December 2004).
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
It is broadly similar to the December 2002 Practice Direction, which it replaces, but is updated to reflect the new EAT Rules of Procedure.
The main changes include:
- clarification of the documents that MUST be lodged when lodging a Notice of Appeal;
- clarification of time limits for lodging an appeal;
- refining the 'sift' procedure;
- a new section dealing with wasted cost applications against legal representatives.
The Practice Direction is not yet available on the EAT website (I have been told it is going up within the next couple of days). I will send another bulletin with the link as soon as the Practice Direction is placed on the net.
Acas to be involved in EAT appeals
Acas to be involved in EAT appeals Also handed down yesterday (but not yet on the EAT website) is a new EAT Conciliation Protocol.
In cases involving allegations of bias or pure money appeals, the EAT will now consider referring the case to Acas for conciliation.
This is to run as a four month pilot project from 1st January 2005.
Again, as soon as the Protocol is published on the net, I will send another bulletin with the link.
Thursday, 2 December 2004
Definition of Disability
The Disability Discrimination Bill has been laid before the House of Lords.
Amongst other things of no interest to employment lawyers, it amends the Disability Discrimination Act 1995 to change the meaning of 'disability' as follows:
- abolishes the need for a mental impairment to be 'clinically well-recognised'
- deems cancer, HIV and multiple sclerosis to be disabilities, irrespective of whether there are any symptoms (subject to further exempting Regulations, not yet published).
Disability Discrimination Bill
[Thanks to Simon Jeffreys of CMS Cameron McKenna for passing me this information]
Amongst other things of no interest to employment lawyers, it amends the Disability Discrimination Act 1995 to change the meaning of 'disability' as follows:
- abolishes the need for a mental impairment to be 'clinically well-recognised'
- deems cancer, HIV and multiple sclerosis to be disabilities, irrespective of whether there are any symptoms (subject to further exempting Regulations, not yet published).
Disability Discrimination Bill
[Thanks to Simon Jeffreys of CMS Cameron McKenna for passing me this information]
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