Industrial Action Code of Practice and C of A decision [auto260600]

CONTENTS

1. Revised Code of Practice on Industrial Action Ballots and Notice to Employers
2. Reference to ECJ - Lawrence v Regent Office Care Ltd.


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1. Revised Code of Practice on Industrial Action Ballots and Notice to Employers

The DTI has today issued the draft revised Code of Practice on Industrial Action Ballots and Notice to Employers.

Subject to parliamentary approval, it will take effect on 18th September 2000.

To obtain a copy (Word for Windows format, 68K), please reply to this message (ensuring 'auto260600' appears in the subject line).

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2. Reference to ECJ - Lawrence v Regent Office Care Ltd.

The Court of Appeal has referred the above case to the ECJ in a decision dated 21st June 2000.

Facts: 447 applicants worked in the cleaning and catering services departments for North Yorkshire schools. Following compulsory competitive tendering of the services, the Council reduced the wages of female workers in order for its in-house company to remain competitive. The female workers took their Equal Pay Act claim to the House of Lords [1995] ICR 833, where they eventually succeeded.

Whilst that litigation was going on, a further competitive tendering exericse took place. The wages of female workers who were transferred under TUPE to a contracted-out organisation were either maintained (on a discriminatory basis) or reduced further.

Issue for the domestic courts: Could the female workers who continued to work for an undertaking contracted out by a local authority rely on male comparators who continued to be employed by the local authority (i.e. not the same, or an associated, employer)?

Questions Referred: The Court of Appeal referred the following two questions to the ECJ (subject to submissions from Counsel as to the precise wording to be used):
(1) Is Article 141 (prev. Art. 119) directly applicable in the circumstances of this case...so that it can be relied upon by the applicants in national proceedings to enable them to compare their pay with that of men in the employment of the North Yorkshire County Council who are performing work of equal value to that done by the applicants?

(2) Can an applicant who seeks to place reliance on the direct effect of Article 141, do so only if the respondent employer is in a position where he is able to explain why the employer of the chosen comparator pays his employees as he does?

New Decisions

CONTENTS

1. Court of Appeal - East Riding of Yorkshire Council v Gibson
2. Recent EAT Decisions


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1. Court of Appeal - East Riding of Yorkshire Council v Gibson

The Court of Appeal has this morning handed down judgment in East Riding of Yorkshire Council v Gibson, overturning the decision of Morison J. in the EAT [1999] ICR 622.

Mrs Gibson, who was employed by the Council as a swimming instructor, brought a claim seeking holiday pay against the Council for the period 23rd November 1996 until 1st October 1998. The 23rd November 1996 was the date by which all member states should have implemented the Working Time Directive (93/104/EC), and 1st October 1998 was the date that the Working Time Regulations 1998 came into force.

She argued that the Directive had direct effect, and she could therefore claim directly against the Council (as an emanation of the State) for the State's failure to implement the directive between 1996 and 1998.

The employment tribunal held that the Directive did not have direct effect. The EAT held that it did, and that Mrs Gibson was entitled to succeed. The Court of Appeal (lead judgment from Mummery LJ) held that it did not have direct effect.

The main consideration was that the Directive was not sufficiently precise. It left a number of questions unanswered, such as the precise definition of 'working time' (upon which the entitlement to leave depended), the absence of criteria to assess entitlement during the first year (or part-year) of employment, or problems arising through part-time work, work on a commission basis, or where there was more than one employer.

Since the Directive was not sufficiently precise, it followed that it could not be relied upon by Mrs Gibson as having direct effect.



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2. Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at http://wood.ccta.gov.uk/eat/eatjudgments.nsf.

Just the one today...

Clark v Farhenheit 451 [6.6.2000, HHJ Altman]

How long is a 'reasonable' notice period for a senior employee? The EAT held that a relevant factor is the length of service of the employee - i.e. the 'reasonable' period is not necessarily determinable as at the date of entering into the contract of employment, but will depend on how long the employee has been employed. The EAT replaced a finding that a reasonable period was one month with a notice period of three months.

Recent EAT Decisions

Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at http://wood.ccta.gov.uk/eat/eatjudgments.nsf.

Reid v Foxbar Hotel [9.6.2000, Lord Johnston]
The Applicant was subjected to acts of sexual harassment. Three months and 10 days after those acts ceased, during which period she was subjected to a period of silence from her employers, she was dismissed. The Respondent argued that the period of silence was sufficient, since it did not amount to less favourable treatment, to mean that there was no continuing act of discrimination and the claim was out of time. The EAT held that, in the absence of an explanation by the employer, the employment tribunal should infer that the period of silence was attributable to the period of sexual harassment and thus amounted to less favourable treatment in itself. Accordingly a finding of discrimination was substituted.

Highland Primary Care NHS Trust v MacDonald [6.6.2000, Lord Johnston]
Back to the range of reasonable responses! Mrs MacDonald, a long-serving nurse, was found intoxicated on duty. She was dismissed. The majority of the employment tribunal initially thought that this fell within the range of reasonable responses but, after the decision in Haddon v Van den Burgh Foods was published, changed their mind and decided that they would not have dismissed - thus the dismissal was unfair. On the facts of the case, the EAT upheld the tribunal's decision. The decision contains an attempt to reconcile the irreconcilable decisions of Haddon v Van den Burgh Foods and Midland Bank v Maddon but, regrettably, does not make matters much clearer.


Bradley v Leisure Promotions [5.6.2000, Lord Johnston]
The IT1 was posted to a tribunal within the 3-month period by recorded delivery. Due to a slight delay, it arrived one day after expiry of the 3-month period. The tribunal found it would have been practicable to present the claim in time, and declined jurisdiction. The EAT held that, notwithstanding the availability of the fax or 1st-class post to present the IT1, the Applicant should not be prejudiced by a slight delay caused by recorded delivery. It held that the employment tribunal's decision was perverse and held that the ET did have jurisdiction to hear the claim.


Lethbridge v British Steel [10.5.2000, HHJ Wilson]
The Applicants were employed by a company which was taken over by British Steel. They were told that there was no TUPE transfer and, on the basis of that representation, signed COT3 agreements to compromise their claims of unfair dismissal. The Respondent conceded before the EAT that the representation that there had been no TUPE transfer was wrong. The EAT held that the employment tribunal should decide, in determining whether the COT3 was effective, "whether the Appellants' decision to sign the COT3 was materially influenced by the admitted false representation that TUPE did not apply". If so, the COT3 was invalid and the Applicants could proceed with their claims.

Further Trade Union S.I.s [auto160600]

Some further statutory instruments have been published in connection with the new union recognition procedure, which came into force on 6th June.

They are:
• The Recognition and Derecognition Ballots (Qualified Persons) Order 2000 [SI 2000/1306]
• The Employment Tribunals Act 1996 (Application of Conciliation Provisions) Order 2000 [SI 2000/1307]
• The Employment Tribunals Act (Application of Conciliation Provisions) Order 2000 (Revocation) Order 2000 2000 [SI 2000/1336]
• The Employment Relations Act 1999 (Commencement No. 6 and Transitional Provisions) Order 2000 [SI 2000/1338]

For copies (HTML format, total size approx. 35K), please REPLY to this Email, ensuring the phrase 'auto160600' appears in the subject line.

Part Time Workers [auto 170600]

Copies are available of my recent article in Employment Lawyer issue 45 (CCH Croner), published yesterday, on the new Part Time Workers Regulations (which come into force on 1st July 2000).

If anyone would like a copy (Word for Windows format, 37K), please REPLY to this Email, ensuring the phrase 'auto170600' appears in the subject line.

ACAS Code on Disciplinary and Grievance Procedures

The ACAS Code on Disciplinary and Grievance Procedures (which also covers the new statutory right to be accompanied at disciplinary and grievance meetings) has now been re-published following the extensive consultation period which took place between 24th January and 27th March.

It was laid before parliament on Thursday, where it must remain for 40 days before it can be formally issued.

Unless it is rejected by parliament, it will come into force on 4th September 2000.

A copy of the new Code (Word for Windows format) is attached. A copy in Adobe Acrobat format can be downloaded from www.dti.gov.uk/er/rtba.htm

Trade Union Recognition Documents

TRADE UNION RECOGNITION PROCEDURE BEGINS

The statutory procedure for trade union recognition comes into force tomorrow 6 June.

Welcoming these provisions, Alan Johnson, Minister for Competitiveness, said:

"This legislation is a further important step towards giving workers in the UK basic minimum rights. I am convinced the new statutory procedure will become an accepted and enduring feature of our employment relations system.

"It is the product of detailed and lengthy consultation with employers, unions and others lasting nearly three years. Thanks to their input, I believe this new statutory procedure is fair,
workable, and balanced.

"It is fair because it gives individual workers the right to be collectively represented where a majority of them wants it.

"It is workable because it gives maximum scope for parties to resolvetheir differences voluntarily at every stage.

"And it is balanced, because it safeguards the legitimate interests of business. The costs on business of operating the procedure are low, and businesses employing 20 or fewer are exempt.

"The Central Arbitration Committee is taking on major new responsibilities for overseeing the scheme. So, the membership of the Committee has been strengthened. The new Chairman, Sir Michael Burton, and the other new members of the Committee bring an enormous depth and range of industrial relations experience to their work."

Notes for Editors:

1. The Employment Relations Act 1999 gained Royal Assent on 27 July last year. It contains provisions to introduce a statutory procedure whereby unions can be recognised (or derecognised) for collective bargaining purposes where it is the clear wish of the workers comprising the relevant bargaining unit. These provisions (Sections 1, 5, 6 and 25 and schedule 1 of the Act) are brought into force tomorrow 6 June, as is a Code of Practice on Access to Workers during Recognition and Derecognition Ballots and the Secretary of State's specification of a method of conducting collective bargaining.

2. Where their claims for recognition cannot be resolved bilaterally with the employer, unions can apply under the statutory procedure to the Central Arbitration Committee (CAC). The CAC will assign a three person Panel to each case: the Chairman or one of his deputies; a member with experience as an employer's representative; and a member with experience as a worker's representative. The High Court judge, Sir Michael Burton QC, took up his appointment as the new Chairman of the Committee on 27 March. Thirty-nine other new members of the Committee started their appointments on 10 April. Press contact for further information on operation of the CAC is James Peacock, tel: 020 7261 8813.

3. In cases where it organises recognition ballots, the CAC will award recognition if it is supported by:

(a) a majority of those voting; and
(b) at least 40% of the workers entitled to vote.

4. Under the statutory procedure, the CAC may award recognition without a ballot if more than 50% of the bargaining unit are members of the union(s) applying for recognition. However, the
procedure also provides for the CAC to organise a ballot in such circumstances, if, for example, it is satisfied that a ballot should be held in the interests of good industrial relations.

5. The Code of Practice and the specification of the method of conducting collective bargaining are available on DTI's website
at: http://www.dti.gov.uk/er/recognition.htm

Trade Union Recognition + other matters

CONTENTS

1. Compulsory Trade Union Recognition - 6th June 2000
2. Bernadone v Pall Mall (Court of Appeal)
3. Recent EAT Decisions
4. Advertisement - Employment Law Service by CCH.NewLaw

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1. Compulsory Trade Union Recognition - 6th June 2000

The provisions of the Employment Relations Act 1999 imposing compulsory recognition of trades unions on employers (if a sufficient number of workers vote accordingly) come into force tomorrow. The commencement order is SI 2000 / 1338 (The Employment Relations Act 1999 (Commencement No 6 and Transitional Provisions) Order 2000).

For a change of such stunning importance, very little has been written about it in the legal or popular press (perhaps because of the length and complexity of the relevant Schedules to the statute!). The unions have been gearing up to 6th June for months. Many employers are going to be caught by surprise.

The following documents have now been published:
- The Trade Union Recognition (Method of Collective Bargaining) Order 2000; and,

- the draft Code of Practice on Access to Workers during Recognition and Derecognition Ballots.

For copies of these documents in Word for Windows format, please REPLY to this Email (ensuring the subject line remains unchanged). This is an automated procedure, so I will not see any correspondence you include in your message.


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2. Bernadone v Pall Mall

Subscribers probably spotted the Court of Appeal's decision in Bernadone v Pall Mall (CA, 16.5.00, reported in The Times, 26.5.00).

For those who missed it, the Court of Appeal held that:

(a) tortious liabilities (in these cases, liability for personal injuries which accrued before a TUPE transfer) transfer under the TUPE regulations; and,

(b) the benefit of the transferee's insurance policies will also transfer, so that the transferee's insurance company remains liable to satisfy any judgment, notwithstanding that the judgment is obtained against the transferor.

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3. Recent EAT Decisions

These cases are unreported (although some may be reported in due course). All transcripts can be found at http://wood.ccta.gov.uk/eat/eatjudgments.nsf.


Tchoula v ICTS (UK) Ltd [4.5.2000, HHJ Peter Clark]
An innovative decision from an appellate court which was desperate to interfere with a high award for injury to feelings in a discrimination case. Following a 21-day hearing, and a further 5 days of deliberation, the employment tribunal allowed 3 of the employee's 21 complaints of discrimination. They awarded £27,000 for injury to feelings and aggravated damages. The EAT held that injury to feeling cases should be divided into 'lower value' and 'higher value' cases, the threshold being around the £10,000 mark. Although it could not interfere with the assessment of damages within a 'lower value' or 'higher value' category, if it thought the tribunal had placed the case into the wrong category, it was entitled to correct this and substitute its own view for that of the tribunal. The EAT held that this was clearly a 'lower value' claim and substituted an award of £10,000.


Colt Group v Couchman [12.1.2000, Charles J.]
The issue for the EAT was whether the small employer exemption in the Disability Discrimination Act 1995 (now 15, but then 20) applied to companies with less than 20 employees per se, but which were part of a huge national conglomerate (with many more than 20 employees!). The EAT held that the DDA envisaged looking at the number of employees of the company itself - not associated companies - and thus the small-business exemption applied. This is the same decision reached by an earlier division of the EAT in Hardie v CD Northern Ltd. (5.10.99, Lindsay J. - see bulletin dated 16.5.00), but the decision is reached as the result of wholly different arguments.



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[Employment Law List] (1) Parental Leave referred to ECJ (2) Legal Aid in ETs

CONTENTS

1. TUC Parental Leave case referred to ECJ
2. Test case - legal aid in employment tribunals
3. Concise Law News

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1. TUC Parental Leave case referred to ECJ

As subscribers will know, last week the High Court heard the TUC's application (argued by Cherie Booth) that the government had failed to properly implement the EC Parental Leave Directive.

The argument, in essence, was that the UK's Maternity and Parental Leave etc. Regulations 1999 only granted rights to parental leave to parents of children born (or adopted) after 15th December 1999. This was the date by which the EC Directive had to be implemented. The TUC argued that the UK Regulations should have applied to parents of all children, irrespective of their date of birth.

The High Court has this morning referred the point to the ECJ. This makes the second case in two days (see yesterday's bulletin concerning Bowden v Tuffnells Parcels)!

I am told that the court (Bingham LJ and Morison J.) indicated that the TUC's argument seemed to be correct, but they thought the matter should be determined by the ECJ. They said that if "as we think" the government may have acted unlawfully then "the sooner this is made clear the better."

An application for an interim Order enabling excluded parents to take parental leave until the ECJ decides the matter was refused.

John Monks, general secretary of the TUC, described the judgment as "a clear moral victory for the TUC" and has invited the government to "back down" on the parental leave issue.

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2. Legal Aid in Employment Tribunals

According to an article in The Scotsman (23/5/2000), a bus driver claiming unfair dismissal is challenging the government under the European Convention of Human Rights because legal aid is not available for employment tribunals (which he asserts is a denial of his right to a fair hearing under Article 6). Readers will be aware that the ECHR, which will be officially recognised in England from 2nd October 2000, is already directly enforceable in Scotland.

I have no further details about the case (except that the unfair dismissal case name is John Grant v Avondale Coaches).

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3. Concise Law News

Following distribution of Ramesh Maharaj's employment law summary earlier this week, I received the following message from Emma Grace of Nelson & Co:

We subscribe regularly to your newsletter, which is very useful. I note the
summary which you include from Mr Maharaj. You might like to point out to
both him and your other subscribers that this contains inaccurate
information. The National Minimum Wage does not go up on 1st June for
adults and young people. The Young People's rate does indeed go up to £3.20
on 1st June. The rise from £3.60 to £3.70 for adults does not kick in until
October, as the DTI site makes clear.

Ramesh Maharaj replies as follows:

I have re-checked the point and the subscriber is correct.
The minimum wage for adults increases from 3.60 to 3.70 in October.
Sorry for the error.

Review of Tribunal System announced by Lord Chancellor

In his keynote address this morning to the Council of Tribunals' conference, the Lord Chancellor announced a wide-ranging review of the tribunal system in the UK. The review will be undertaken by Sir Andrew Legatt, assisted by a named panel of expert consultees, with an anticipated report in March 2001.

The terms of reference for the review are as follows (paraphrased):

To review the delivery of justice through tribunals other than ordinary courts of law, constituted under an Act of Parliament by a Minister of the Crown or for purposes of a Minister's functions; in resolving disputes, whether between citizens and the state, or between other parties, so as to ensure that:

• there are fair, timely, proportionate and effective arrangements for handling disputes, within an effective legal framework;
• the administrative and practical arrangements for supporting decision-making meet the requirements of the ECHR for independence and impartiality;
• there are adequate arrangements for improving people's knowledge and understanding of their rights and responsibilities in relation to tribunals;
• whether the arrangements for the funding and management of tribunals are efficient, effective and economical.
• to consider performance standards for tribunals, to ensure these are coherent and consistent - and effective; and
• that tribunals overall constitute a coherent structure for the delivery of administrative justice.

The last review of the tribunal system was in 1957 (the Franks report).

A copy of the Lord Chancellor's speech is attached to this bulletin in text format.

ECJ Pension Decision + general updates

CONTENTS
1. ECJ Decision - Part-Timers Pensions (Preston v Wolverhampton)
2. Trivia - Dutch court rules workers entitled to smoke-free conditions
3. More EAT decisions
4. Correction of previous bulletin
________________________________________

PLEASE NOTE: This service is currently experiencing transmission difficulties. Messages are being delayed for up to 48 hours before receipt. I apologise for any inconvenience.

________________________________________

1. ECJ Decision - Part-Time Pensions

The ECJ has delivered its judgment in the part-time pensioners case, Preston v Wolverhampton Healthcare NHS Trust, which was referred by the House of Lords. See bulletin of 15th September 1999, in which the AG's opinion was reported.

The ECJ has held as follows:

(a) it is consistent with community law to have a six-month limitation period for claims under the Equal Pay Act; however, if there have been a series of continuing contracts of employment, time must start running from the last of those contracts (i.e. no 6-month limitation period can arise at the end of each, often annual, contract of employment).

(b) it is not consistent with community law to prevent recovery of monies falling due more than 2 years prior to the date when the claim was presented.
Therefore part-timers pension claims can be backdated to April 1976.

John Monks, general secretary of the TUC, says "Once again Europe has shown itself to be on the side of ordinary working people."

For a copy of the ECJ decision, in Word for Windows format, please reply to this Email.


________________________________________

2. Trivia - Dutch court rules workers entitled to smoke-free conditions



A Dutch court has ruled that employers must guarantee that non-smoking staff have a working environment completely free of tobacco smoke. A landmark judgement in the Breda district court, upheld a postal worker's complaint that her exposure to tobacco smoke at the citys sorting office infringed her right to work in a smoke-free environment. The court ruled that Nanny Nooijens employers had failed to satisfy the constitutional rights of citizens under the employment law, which obliges employers to ensure that workplaces cause no harmful effects to employees health.

The Asthma Foundation, which backed the action, believes that there could be thousands of similar cases. A recent national survey in the Netherlands showed that 76% of employees experience problems with tobacco smoke.


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3. EAT Decisions

Some 30 decisions have been placed on the EAT website (http://wood.ccta.gov.uk/eat/eatjudgments.nsf) in the last week. The vast majority of these turn on their facts, and are of little legal interest. A few deserve mention...

ADI (UK) Ltd. v Willer. [18.4.00, Burton J.]
An unusually clear and readable TUPE judgment - unremarkable on the facts, but remarkable in terms of the clarity with which the EAT sets out the approach tribunals should take to TUPE cases. A 'must' read.


Anya v Oxford University [17.12.99, Holland J.]
An interesting decision, of use to those resisting appeals where it is alleged that the tribunal failed to make sufficient findings of primary fact. In this case (an allegation of race discrimination during selection for promotion to a high academic post), the employment tribunal heard evidence for 11 days. It failed to make findings of fact on several issues. The EAT held that it was wrong to go behind the ET's assessment of what was relevant, and the tribunal was entitled to form an impression 'on the whole' as to whether there had been less favourable treatment on racial grounds.


Hardie v CD Northern Ltd. [5.10.99, Lindsay J.]
Mr Hardie was employed by CD Northern Ltd., and brought a claim under the DDA 1995. The Respondent, which employed only 19 people, argued that the small-business exemption applied (note: the small-business exemption was 20 employees at the time, but is now 15 employees). Mr Hardie argued that the tribunal should include, when counting the number of employees, the employees of closely associated companies (with common employees, intra-company accounts, and inter-ownership of company shares). The EAT rejected this argument, stating that if parliament had intended employees of associated employers to be counted, it would have said so in the DDA - and it did not!

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4. Correction of previous bulletin

The previous bulletin (12th May 2000) reported that the House of Lords had upheld the decision of the Court of Appeal in Taylor v Secretary of State for Scotland. In fact, it was the Court of Sessions's decision that was upheld, not that of the Court of Appeal.



________________________________________

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www.danielbarnett.co.uk

As reported in Law Times, Legal Week, Solicitors' Journal and the Law Society Gazette.

Instruct me via the internet in non-complex employment law matters for £100 (+VAT).

Guaranteed 3-hour response or no charge.

The service is available for non-complex employment matters only. If the instructions are likely to take me longer than one hour, I will not accept them on the £100 fixed-fee basis. In such a case, I will contact you with an estimate of fees and you may decide whether to proceed.

The service is subject to terms and conditions (set out on my website) and is available to solicitors only.

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ECJ Pension Decision - further message

CONTENTS
1. ECJ Decision - Part-Timers Pensions (Preston v Wolverhampton)
2. Trivia - Dutch court rules workers entitled to smoke-free conditions
3. More EAT decisions
4. Correction of previous bulletin
________________________________________

PLEASE NOTE: This service is currently experiencing transmission difficulties. Messages are being delayed for up to 48 hours before receipt. I apologise for any inconvenience.

________________________________________

1. ECJ Decision - Part-Time Pensions

The ECJ has delivered its judgment in the part-time pensioners case, Preston v Wolverhampton Healthcare NHS Trust, which was referred by the House of Lords. See bulletin of 15th September 1999, in which the AG's opinion was reported.

The ECJ has held as follows:

(a) it is consistent with community law to have a six-month limitation period for claims under the Equal Pay Act; however, if there have been a series of continuing contracts of employment, time must start running from the last of those contracts (i.e. no 6-month limitation period can arise at the end of each, often annual, contract of employment).

(b) it is not consistent with community law to prevent recovery of monies falling due more than 2 years prior to the date when the claim was presented.
Therefore part-timers pension claims can be backdated to April 1976.

John Monks, general secretary of the TUC, says "Once again Europe has shown itself to be on the side of ordinary working people."

For a copy of the ECJ decision, in Word for Windows format, please reply to this Email.


________________________________________

2. Trivia - Dutch court rules workers entitled to smoke-free conditions



A Dutch court has ruled that employers must guarantee that non-smoking staff have a working environment completely free of tobacco smoke. A landmark judgement in the Breda district court, upheld a postal worker's complaint that her exposure to tobacco smoke at the citys sorting office infringed her right to work in a smoke-free environment. The court ruled that Nanny Nooijens employers had failed to satisfy the constitutional rights of citizens under the employment law, which obliges employers to ensure that workplaces cause no harmful effects to employees health.

The Asthma Foundation, which backed the action, believes that there could be thousands of similar cases. A recent national survey in the Netherlands showed that 76% of employees experience problems with tobacco smoke.




________________________________________

3. EAT Decisions

Some 30 decisions have been placed on the EAT website (http://wood.ccta.gov.uk/eat/eatjudgments.nsf) in the last week. The vast majority of these turn on their facts, and are of little legal interest. A few deserve mention...

ADI (UK) Ltd. v Willer. [18.4.00, Burton J.]
An unusually clear and readable TUPE judgment - unremarkable on the facts, but remarkable in terms of the clarity with which the EAT sets out the approach tribunals should take to TUPE cases. A 'must' read.


Anya v Oxford University [17.12.99, Holland J.]
An interesting decision, of use to those resisting appeals where it is alleged that the tribunal failed to make sufficient findings of primary fact. In this case (an allegation of race discrimination during selection for promotion to a high academic post), the employment tribunal heard evidence for 11 days. It failed to make findings of fact on several issues. The EAT held that it was wrong to go behind the ET's assessment of what was relevant, and the tribunal was entitled to form an impression 'on the whole' as to whether there had been less favourable treatment on racial grounds.


Hardie v CD Northern Ltd. [5.10.99, Lindsay J.]
Mr Hardie was employed by CD Northern Ltd., and brought a claim under the DDA 1995. The Respondent, which employed only 19 people, argued that the small-business exemption applied (note: the small-business exemption was 20 employees at the time, but is now 15 employees). Mr Hardie argued that the tribunal should include, when counting the number of employees, the employees of closely associated companies (with common employees, intra-company accounts, and inter-ownership of company shares). The EAT rejected this argument, stating that if parliament had intended employees of associated employers to be counted, it would have said so in the DDA - and it did not!



________________________________________

4. Correction of previous bulletin

The previous bulletin (12th May 2000) reported that the House of Lords had upheld the decision of the Court of Appeal in Taylor v Secretary of State for Scotland. In fact, it was the Court of Sessions's decision that was upheld, not that of the Court of Appeal.



________________________________________

ADVERTISEMENT

NEW EMPLOYMENT LAW SERVICE
on
www.danielbarnett.co.uk

As reported in Law Times, Legal Week, Solicitors' Journal and the Law Society Gazette.

Instruct me via the internet in non-complex employment law matters for £100 (+VAT).

Guaranteed 3-hour response or no charge.

The service is available for non-complex employment matters only. If the instructions are likely to take me longer than one hour, I will not accept them on the £100 fixed-fee basis. In such a case, I will contact you with an estimate of fees and you may decide whether to proceed.

The service is subject to terms and conditions (set out on my website) and is available to solicitors only.

Try it out - visit www.danielbarnett.co.uk

H of L Decision - Taylor v Secretary of State for Scotland

The House of Lords has this morning (Thurs) handed down its opinion in Taylor v Secretary of State for Scotland, upholding the Court of Appeal's decision.

It held that on a proper construction of a prison officer's contract of employment, which included a retirement age of 55 but also an undertaking not to discriminate on grounds of age, that the mandatory retirement age did not breach the anti-discrimination policy.

The transcript (which is fairly short) is attached (reproduced with the permission of the controller of Her Majesty's Stationery Office).

Some articles on age discrimination can be found on my website at www.danielbarnett.co.uk

Consultation Paper on Equal Pay

The government announced a consultation paper today (yes, another one!) on methods to speed up equal pay claims.

The procedural proposals include:

• shortening the rules on how tribunals deal with equal pay cases;
• helping tribunals decide cases more quickly by using an independent 'assessor' and preventing the parties from calling experts;
• simplifying claims procedures where a group of women have essentially the same case;
• introducing a questionnaire procedure (comment: many might think this academic, since equal pay claims are usually 'twinned' with sex discrimination claims, when questionnaires can be issued)
• extending the time within which a claim has to be brought to six months after the end of employment

The substantive proposals include:

• replacing the 2-year time limit on back pay with a 6-year time limit
• introducing the EC Burden of Proof Directive to equal pay claims

There is a very clear website set up for the consultations, which enable responses to be sent whilst on-line. The address is http://www.dfee.gov.uk/consultations/equalpay . Responses are sought by 19th February 2001.

New Anti-Discimination Code

Subscribers will be aware that Part III of the Disability Discrimination Act 1995 comes into force on 1st October 2004. Part III requires businesses, and other providers of services, to take reasonable steps to (inter alia) enable access to their premises by disabled persons.

Today (Monday) the Disability Rights Commission, together with the Dept. for Education and Employment, has launched a 3-month consultation period on the provisions of the draft Code and other guidance documents.

Copies of the Consultation Paper, draft Code of Practice, draft Regulations and other related documents can be obtained by replying to this Email. The documents are fairly large - approximately 880K in total, and are in Word for Windows format.


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General Update and EAT cases

CONTENTS
1. Commencement dates
2. Procedure - Wrongful Dismissal Claims
3. New EAT Decisions
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1. Commencement Dates


The government has set a target date of 6th June 2000 for implementation of the new Trade Union compulsory recognition procedures.

It is hoping to implement the new Right to be Accompanied at Disciplinary and Grievance Procedures in June or July, but is apparently waiting for ACAS to produce the final version of its new Code on Disciplinary and Grievance Procedures (which contains a section on the right to be accompanied). This has been delayed due to the large number of responses received by ACAS following its consultation over the draft Code, which closed in March.


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2. Procedure - County Court Wrongful Dismissal Claims


The Access to Justice Act 1999 (Destination of Appeals) Order 2000 [SI 2000/1071] (what a title!) came into force on 2nd May 2000.

It provides that in all county court cases, except specialist proceedings and family cases, the following are the new routes of appeal:

• Small Claims: All appeals to the circuit judge (as before)

• Fast Track: All appeals now to go to the High Court, not the Court of Appeal

• Multi-Track: Appeals from all interlocutory orders now go the High Court. Appeals from final judgments/orders remain with the Court of Appeal.
Transitional provisions: If a party has filed its Notice of Appeal, or applied for permission to appeal, before 2nd May, then the old rules still apply.

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3. New EAT Decisions

These decisions have been placed on the EAT website recently. The transcripts can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf


Montgomery v (1) O&K Orenstein (2) Johnson Underwood Ltd. [18.4.00, Charles J.]

A case of great significance, which sadly raises as many questions as it answers. This deals with the common problem of agency workers - if a temp is dismissed, does she claim against the employment agency or the de facto employer?

Mrs Montgomery signed on as a temp with O&K Orenstein ('the agency') in June 1995. She was immediately assigned as a receptionist to Johnson Underwood ('the employer') and remained there until her dismissal in November 1997. She claimed unfair dismissal. The employment tribunal held that she was employed by, and should claim against, the agency but not the employer.

The EAT unanimously agreed that she was not an employee of Johnson Underwood (the employer). There was no contract between her and it, thus she could not be working under a contract of employment.

The majority (the lay members) of the EAT held that she was an employee of the agency. They considered the traditional tests and decided that it could not be said that the employment tribunal had made any error of law or perverse decision.

The minority (Charles J.) held that she was not an employee of the agency - and thus could not bring unfair dismissal proceedings against anyone. He relied on the lack of mutual obligation between Mrs Montgomery and the agency - she had not entered into any obligation to provide her work and skill in the performance of some service for the agency. Further, there was a lack of control by the agency over the day-to-day work of Mrs Montgomery, this being fatal to an employer/employee relationship.

The EAT states that this is an area that is crying out for legislative interference, and recommends that the government clarifies this area of the law.


Attorney-General v Wheen [18.4.00, Lindsay J.]
This is the first case in which the EAT had made a Restriction of Proceedings Order under section 33 of the Employment Tribunals Act 1996. This Order, which is advertised in the London Gazette, prohibits a vexatious litigant from commencing claims in employment tribunals unless s/he has first obtained permission from the EAT.

The EAT issued the Order against Mr Wheen, noting he had commenced 13 separate sets of proceedings (many of which were discrimination claims - Mr Wheen being a non-disabled, white male). The decision makes good reading because of the relaxed demolition by Lindsay J. of each one of Mr Wheen's arguments! Of more legal interest is a suggestion by Lindsay J. that an undertaking by a 'vexatious' applicant not to commence further proceedings except on the advice of lawyers might have a bearing on the exercise of the EAT's discretion. No such undertaking was offered in this case.


Pearce v Mayfield Secondary School [7.4.00, Burton J.]
A lesbian schoolteacher was harassed and 'bullied' by her pupils on grounds of her sexual orientation. The EAT confirmed that discrimination on grounds of sexual orientation did not fall within the SDA 1975 unless a homosexual of one gender was treated less favourably than a homosexual of the other gender. It rejected the argument that the use of gender-specific words such as 'dyke' and 'lezzie' amounted to less favourable treatment (on the grounds that a gay man would not be called 'dyke' etc.). This was because it could not be said that it is less favourable to call a lesbian woman a 'dyke' yet simulataneously less favourable to call a homosexual male by gender-specific words (the example used in the decision was 'bugger') - they could not both be less favourable than each other.


Air Canada & Alpha Catering v Basra [21.2.00, HHJ Peter Clark]
A lengthy and complex decision on issue estoppel. It turns mainly on the facts (which are too long to set out in this summary!), but does contain a useful trawl through the authorities.


DTI v Henson [13.3.00, Burton J.]
Yet another analysis on the circumstances when the DTI is obliged to pay monies out of the central fund relating to redundancy and notice payments due to employees of insolvent employers.



Robinson & Tanner v Swallowfield [21.2.00, HHJ Peter Clark]
The two Applicants were ordered to pay a deposit of £50 as a condition of proceeding in their unfair dismissal claim by the ET during a Pre-Hearing Review. The EAT overturned this decision on the facts, but the case is of interest because of the explanation given by the court for the phrase 'no reasonable prospect of success'. The two lay members thought it meant that the application is almost certain to fail. HHJ Peter Clark, a very experienced judge, thought it meant simply less than a 50% chance of success. This will spawn further argument!

Part Time Workers Regulations 2000

They're out!!! The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 have been published. They come into force on 1st July 2000, giving us the promised 8 weeks to get to grips with them.

A brief summary is as follows:

• Part-timers must not have a lower basic rate of pay than comparable full-timers, unless it can be justified on objective grounds (eg profit-related pay)

• Part-timers will be entitled to receive pay at overtime rates once they have worked the same number of hours as an ordinary full-time worker

• Part-timers will be entitled to receive the same sick pay and maternity pay rights as full-time workers (adjusted pro rata). This includes equal length of service requirements and lengths of time for which payment is received.

• Part-timers will be entitled to equal access to occupational pension schemes as full-timers, unless the difference can be justified on objective grounds

• Part-timers will be entitled to the same training opportunities as full-timers - employers should schedule training sessions so that part-timers can attend.

• Part-timers are entitled to the same annual holiday leave, parental leave and time-off for dependants as full-timers, adjusted pro rata. Career break schemes should be available to part-timers if they are available to full-timers.

• Part-timers should be treated no less favourably when being selected for redundancy, unless the different treatment can be objectively justified.


One of the changes from the draft Regulations is that the Regulations now apply to 'workers', not just employees.

An important new concept is the 'written statement' procedure. Part-timers can apply to their employers for a written statement of reasons if they believe they are being treated less favourably than a comparable full-timer. The employer must respond to the request within 21 days. This allows both parties to establish the facts, and lessens the likelihood of a claim being taken to an employment tribunal.

Attached to this document (reproduced with permission of Her Majesty's Stationery Office) are the Regulations, Press Notice, Programme of Information and a Question and Answer sheet, all produced by the DTI.

The TUC general secretary, John Monks, has stated in a press release:

"These new rights are an important milestone on the road to achieving justice
and equality for Britain's six million part time workers.

"They are a distinct improvement on the draft regulations. We are pleased to
see the government has not limited the scope of the regulations only to
employees with a contract of employment and extended it to all workers. This
is good news.

"However, while these regulations are a step forward, part time workers with
the lowest pay and worst conditions will still find it hard to find a full
time worker with whom they can compare themselves. Some jobs, like cleaning
and much catering work, are nearly all part time and the regulations will do
little to help this group."

Part Time Workers Regulations 2000

They're out!!! The Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 have been published. They come into force on 1st July 2000, giving us the promised 8 weeks to get to grips with them.

A brief summary is as follows:

• Part-timers must not have a lower basic rate of pay than comparable full-timers, unless it can be justified on objective grounds (eg profit-related pay)

• Part-timers will be entitled to receive pay at overtime rates once they have worked the same number of hours as an ordinary full-time worker

• Part-timers will be entitled to receive the same sick pay and maternity pay rights as full-time workers (adjusted pro rata). This includes equal length of service requirements and lengths of time for which payment is received.

• Part-timers will be entitled to equal access to occupational pension schemes as full-timers, unless the difference can be justified on objective grounds

• Part-timers will be entitled to the same training opportunities as full-timers - employers should schedule training sessions so that part-timers can attend.

• Part-timers are entitled to the same annual holiday leave, parental leave and time-off for dependants as full-timers, adjusted pro rata. Career break schemes should be available to part-timers if they are available to full-timers.

• Part-timers should be treated no less favourably when being selected for redundancy, unless the different treatment can be objectively justified.


One of the changes from the draft Regulations is that the Regulations now apply to 'workers', not just employees.

An important new concept is the 'written statement' procedure. Part-timers can apply to their employers for a written statement of reasons if they believe they are being treated less favourably than a comparable full-timer. The employer must respond to the request within 21 days. This allows both parties to establish the facts, and lessens the likelihood of a claim being taken to an employment tribunal.

Attached to this document (reproduced with permission of Her Majesty's Stationery Office) are the Regulations, Press Notice, Programme of Information and a Question and Answer sheet, all produced by the DTI.

The TUC general secretary, John Monks, has stated in a press release:

"These new rights are an important milestone on the road to achieving justice
and equality for Britain's six million part time workers.

"They are a distinct improvement on the draft regulations. We are pleased to
see the government has not limited the scope of the regulations only to
employees with a contract of employment and extended it to all workers. This
is good news.

"However, while these regulations are a step forward, part time workers with
the lowest pay and worst conditions will still find it hard to find a full
time worker with whom they can compare themselves. Some jobs, like cleaning
and much catering work, are nearly all part time and the regulations will do
little to help this group."

Employment Law topics in Internet Newsletter for Lawyers

There are several articles of interest for Employment Lawyers in the May/June issue of the Internet Newsletter for Lawyers - and also a very special introductory offer (see end of the email for this).
Here are the main stories:

1. The British and Irish Legal Information Institute (BAILII) has now been launched in pilot form. It already includes 14 databases from 5 jurisdictions and over 400 megabytes of legal materials - all interlinked and all free. Laurie West-Knights QC describes the progress so far and discusses the hurdles yet to be overcome.

2. "Marketing Mania Hits the Legal Web" covers the 20 so-called marketing sites, including two employment law marketing sites, where the sites attempt to attract people needing legal advice to the site and then pass the potential clients on to firms of solicitors. Most of these charge the solicitors fees. I look at what these sites are doing and whether they provide value for money.

3. David Flint, from MacRoberts in Glasgow, gives the latest information on the Electronic Communications Bill, the Freedom of Information Bill and the Regulation of Investigatory Procedures Bill. He also considers the implications of the recent libel case involving Demon Internet.

4. Westlaw UK has been advertising heavily over the last couple of months.
Legal Librarian Loyita Worley, of Richards Butler, reviews the service.

5. Law Reporting, Legal Information and Electronic Media in the New Millennium was the title of a recent conference organised by the Incorporated Council of Law Reporting. Barrister James Behrens reports.

6. The Data Protection Act 1998 will affect the way that information is collected from websites and used for marketing purposes. Michael Franks, from Chethams, has researched the topic.

7. It is now possible to file information electronically for Companies House. David Impey, from Jordans, describes how it works and what the new Companies House "presenters" can do.

8. Brian Johnson, Director of Legal and Administrative Services for Stratford-upon-Avon District Council, gives a local authority lawyer's perspective and tells us which web sites are most useful.

9. "What's New".... including the CLS, the Government "Champions" site, the new Court Service site, what Irish Legal Costs Accountants Connolly Lowe are doing, the Scottish Human Rights Trust, the Employment Lawyers Association, Solicitors Indemnity..... two new books.... new product launch....

All this and a small piece about Daniel Barnett's new service offering advice directly over the web!

The Newsletter usually costs £34 plus 70p VAT for a year (6 issues) but at the moment I am offering new subscribers a special introductory price of
£25 plus 70p VAT - and this includes 2 previous free copies.

If you would like to subscribe, just email me (delia@venables.co.uk) with your name, postal address and phone number. I will invoice you when I send you the initial Newsletters.


Delia Venables, 10 Southway, Lewes, East Sussex BN7 1LU, UK
Phone/FAX (44)-1273-472424 delia@venables.co.uk
***Please note new web address!*** http://www.venables.co.uk
Guide to the Internet for Lawyers Internet Newsletter for Lawyers
Researching the Legal Web, 2nd edition, Butterworths

TUC call for legislation protecting gay workers

The TUC has today issued a report, entitled 'Straight Up!', calling for legislation to protect lesbian and gay workers. The report is well-argued, calling on anecdotal evidence, surveys and legal argument.

For a copy of the report (in plain text format), send a blank Email to vbuilding@vbuilding.tuc.org.uk?subject=[tuc,6458]. Please do not Email me or 'reply' to this message - it will not work!