Various matters

CONTENTS

1. Whistleblowing case
2. Anti-Discrimination Directive
3. Advertisement - CPD service

________________________________________

1. Whistleblowing Case

John Bowers QC of Littleton Chambers has sent me a transcript of an employment tribunal decision relating to an important point of principle in whistleblowing cases.

The tribunal held that the Public Interest (Disclosure) Act 1998 protects employees who make protected disclosures prior to the date the Act came into force. On the facts, the employee made a protected disclosure about four months before the Act came into force. A year later (after the Act had come into force), the employer relocated him to a different department (which was said to be a detriment).

The tribunal held that it had jurisdiction under PIDA 1998 to consider the employee's complaint, despite the protected disclosure occurring prior to the Act coming into force.

Edgar v Meteorological Office, Employment Tribunal (London central) chaired by Mrs JR Hill on 5th October 2000, sent to the parties on 11th October 2000.

________________________________________

2. Anti-Discrimination Directive

Many readers will have read in the news that the EC has now approved the long-awaited Employment Framework Directive. According to press reports, it requires all member states (including the UK) to introduce legislation:

• prohibiting discrimination against workers on grounds of religion and sexual orientation by 2003; and,

• prohibiting discrimination against workers on grounds of disability and age by 2006. Note that although the Disability Discrimination Act 1995 may comply with the requirements of the Directive, rumour has it that there is no 'small employer' exemption within the Directive - thus the DDA will have to be amended to apply to all employers, not just those with over 15 employees.

I have not yet seen a copy of the Directive. Once I have a copy, it will be made available via this mailing list.


________________________________________

3. Advertisement

REMINDER

The current session of the Employment Law (UK) mail list CPD Scheme closes on 1st November 2000, when the answers to this quarter's questions will be published.


It is now possible to obtain CPD hours for receiving these bulletins.


How does the Scheme work?

By answering multiple choice questions based on the employment law bulletins sent out in the previous 3 months, you can obtain 2 CPD hours each quarter.

The questions (and an archive of the last 3 months' bulletins) are available at www.cpdpoints.co.uk

The number of CPD hours awarded depends on the number of correct answers to the multiple choice questions, as follows:
5 or more correct (out of 12) - 1 CPD hour
7 or more correct (out of 12) - 1.5 CPD hours
9 or more correct (out of 12) - 2 CPDhours

How much does it cost?

There is no charge for attempting the questions.

Your score (and number of CPD hours to which that entitles you) will be sent to you by Email. You may then, if you wish, purchase the CPD hours for a fixed fee of £100+VAT.



How do I answer the questions?

The questions, and an answer form, are available online at www.cpdpoints.co.uk . All the answers can be found in the Employment Law (UK) bulletins as sent over the last few months. If you have not retained them(!), copies can be found on www.cpdpoints.co.uk .

For those who do not have access to the internet, a list of the questions will be distributed by Email next week.

The answers will be published on 1st November 2000. New sets of questions, based on the preceding 3 months' bulletins and entitling you to obtain yet more CPD hours, will be produced every quarter.



www.cpdpoints.co.uk and the CPD assessment scheme are adminstered by Employment Law Services Limited. Employment Law Services Limited is accredited by the Law Society as an authorised provider of CPD courses.

Phone Tapping

Rumour has it that my previous bulletin demonstrated quite how complicated employment law has become - being a mass of unreadable garbage!

What it should have contained was the text of the Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 (mentioned in my bulletin dated 5th October). It has now been published and is reproduced with the permission of Her Majesty's Stationery Office. Please find the Regulations attached in HTML format.

New Regulations on Email and Telephone Monitoring

The Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 have been published under the Regulation of Investigatory Powers Act 2000.

Apart from having an impressive title, the Regualations set out the circumstances in which an employer can record or monitor employees' communications (such as Email or telephones) without the consent of either the employee or the other party to the communication.

These circumstances are very wide, and they include:

• for recording evidence of business transactions;
• ensuring compliance with regulatory or self-regulatory guidelines;
• maintaining the effective operation of the employer's systems (eg preventing viruses);
• monitoring standards of training and service;
• preventing or detecting criminal activity;
• preventing the unauthorised use of the computer/telephone system - ie ensuring the employee does not breach the company's Email or telephone policies.

It is necessary under the Regulations for employers to take reasonable steps to inform employees that their communications might be intercepted. This reinforces the need for all employers to introduce an Email / internet policy for their workers.

The Regulations come into force on 24th October 2000.

www.incomesdata.co.uk) for notifying me of these Regulations>

________________________________________

ADVERTISEMENT

New CPD Scheme launched for this list


It is now possible to obtain CPD hours for receiving these bulletins.


How does the Scheme work?

By answering multiple choice questions based on the employment law bulletins sent out in the previous 3 months, you can obtain 2 CPD hours each quarter.

The questions (and an archive of the last 3 months' bulletins) are available at www.cpdpoints.co.uk

The number of CPD hours awarded depends on the number of correct answers to the multiple choice questions, as follows:
5 or more correct (out of 12) - 1 CPD hour
7 or more correct (out of 12) - 1.5 CPD hours
9 or more correct (out of 12) - 2 CPDhours

How much does it cost?

There is no charge for attempting the questions.

Your score (and number of CPD hours to which that entitles you) will be sent to you by Email. You may then, if you wish, purchase the CPD hours for a fixed fee of £100+VAT.



How do I answer the questions?

The questions, and an answer form, are available online at www.cpdpoints.co.uk . All the answers can be found in the Employment Law (UK) bulletins as sent over the last few months. If you have not retained them(!), copies can be found on www.cpdpoints.co.uk .

For those who do not have access to the internet, a list of the questions will be distributed by Email next week.

The answers will be published on 1st November 2000. New sets of questions, based on the preceding 3 months' bulletins and entitling you to obtain yet more CPD hours, will be produced every quarter.


www.cpdpoints.co.uk and the CPD assessment scheme are adminstered by Employment Law Services Limited. Employment Law Services Limited is accredited by the Law Society as an authorised provider of CPD courses.

Company Directors and Doctors' Working Hours

CONTENTS

1. Minimum wage and company directors
2. ECJ Decision - Doctors' maximum working hours

________________________________________

1. Minimum Wage and Company Directors

An Inland Revenue agreed guidance note on the impact of the minimum wage on company directors has been issued by the Tax Faculty of the Institute of Chartered Accountants.

The note is particularly useful for its guidance on when a director is also an employee.

It can be downloaded from http://www.taxfac.co.uk/facultypublications/documents/11-520-1.doc

________________________________________

2. ECJ Decision - Doctors' maximum working hours
The ECJ has, this morning, handed down its decision in Sindicator de Medicos de Asistencia Publica v Spain.

It held that Spanish primary care doctors are subject to the maximum 48-hour week.

The important sections of the judgment, which is available at http://www.curia.eu.int/jurisp/cgi-bin/gettext.pl?lang=en&num=79998996C19980303&doc=T&ouvert=T&seance=ARRET&where=() ,are to hold/confirm that:

• trainee doctors are not subject to the 48-hour week, they being a specific exemption from the Working Time Directive;
• doctors who are 'on-call' at a health centre are counted as working, for the purpose of the Working Time Directive;
• doctors who are 'on-call' away from a health centre (ie at home) are not counted as working, for the purpose of the Working Time Directive;
• doctors who are 'on-call' at night are not rendered 'night workers' simply by reason of the Directive.

________________________________________

ADVERTISEMENT

New CPD Scheme launched for this list


It is now possible to obtain CPD hours for receiving these bulletins.


How does the Scheme work?

By answering multiple choice questions based on the employment law bulletins sent out in the previous 3 months, you can obtain 2 CPD hours each quarter.

The questions (and an archive of the last 3 months' bulletins) are available at www.cpdpoints.co.uk

The number of CPD hours awarded depends on the number of correct answers to the multiple choice questions, as follows:
5 or more correct (out of 12) - 1 CPD hour
7 or more correct (out of 12) - 1.5 CPD hours
9 or more correct (out of 12) - 2 CPDhours

How much does it cost?

There is no charge for attempting the questions.

Your score (and number of CPD hours to which that entitles you) will be sent to you by Email. You may then, if you wish, purchase the CPD hours for a fixed fee of £100+VAT.



How do I answer the questions?

The questions, and an answer form, are available online at www.cpdpoints.co.uk . All the answers can be found in the Employment Law (UK) bulletins as sent over the last few months. If you have not retained them(!), copies can be found on www.cpdpoints.co.uk .

For those who do not have access to the internet, a list of the questions will be distributed by Email next week.

The answers will be published on 1st November 2000. New sets of questions, based on the preceding 3 months' bulletins and entitling you to obtain yet more CPD hours, will be produced every quarter.


www.cpdpoints.co.uk and the CPD assessment scheme are adminstered by Employment Law Services Limited. Employment Law Services Limited is accredited by the Law Society as an authorised provider of CPD courses.

Human Rights Act [autoreply 021000]

Just in case anyone has missed it, the Human Rights Act 1998 comes into force today.

Copies are available of my article 'Employment Law and Human Rights', which was published in ELA Briefing in March 2000, on my website . Alternatively, to obtain a copy in Word format (56K) by Email, just reply to this Email (ensuring that the phrase 'autoreply 021000' appears in the subject line) and it will be sent automatically.

Discrimination against Gays now Unlawful

The transcript of MacDonald v Ministry of Defence (EAT, 17th September 2000) has just been published.

The EAT has departed from previous authorities which hold that discrimination against homosexuals does not fall within the Sex Discrimination Act 1975.

It held that the word 'sex' in the Sex Discrimination Act 1975 is ambiguous - potentially including sexual orientation as well as gender. Despite the previous authorities to the contrary, it held that it is obliged to look at rights under the European Convention of Human Rights when, in two recent cases (Lustig-Prean and Salgueiro da Silva Mounta v Portugal), the European Court held that discrimination against homosexuals offended articles 8 (right to respect for privacy) and 14 (right not to be discriminated against when enjoying Convention rights) respectively.

Due to these new authorities, it was time to reconsider the traditional UK approach.

Accordingly, when considering a case of discrimination against a homosexual employee, the correct comparator under the Sex Discrimination Act 1975 is now a heterosexual (be it male or female) rather than a homosexual of the opposite gender.

The transcript can be downloaded from:
http://wood.ccta.gov.uk/eat/eatjudgments.nsf/faf4a44f36aa53fc80256794004040c2/fcac7ff40afaec3c8025696c0039e3c0?OpenDocument

Note: if the link does not work (it may be too long for some browsers), try http://wood.ccta.gov.uk/eat/eatjudgments.nsf

Minimum Wage

CONTENTS

1. TIGER - the minimum wage website
2. Recent EAT Decisions


________________________________________

1. TIGER - the Minimum Wage website

The DTI has today (Friday) launched 'TIGER' (Tailored Interactive Guidance on Employment Rights) at www.tiger.gov.uk

The site contains interactive and easy to use information on the national minimum wage, including a detailed yet accessible analysis of people to whom the minimum wage applies, and a 'ready-reckoner' for calculating whether employees are receiving the minimum wage.

The site asks users to state whether they are employers or employees, and guides them down a series of easily understood questions to the information they seek.

It is anticipated that the website will be expanded over time to deal with all aspects of employment rights.


________________________________________

2. New EAT Decisions

Moores v Bude-Stratton Town Council [Lindsay P., 27th March 2000]
A town councillor was extremely rude to a council employee, entitling him to resign and claim constructive dismissal. The issue was whether the Council was vicariously liable for the repudiatory conduct of the individual councillor. The employment tribunal, and the minority member of the EAT, held that councillors were not analagous to employees and a Council was not analagous to an employer - hence no vicarious liability and the claim must fail. The majority of the EAT (including Lindsay P.) held that vicarious liability existed, that the repudiatory conduct of a single counciller was capable of breaching trust and confidence, and the employee was entitled to terminate his contract of employment with the Council.

Martyres v Connex South-East [HHJ Wilson, 24th May 2000]
A single employee did not consent to a change to electronic payment of wages, which his trade union had accepted by conduct. He brought a claim for unlawful deduction from wages. The EAT held (unsurprisingly!) that there had been no deduction, since electronic payment is a proper substitute for putting money in a pay packet. More importantly, the EAT stated that where a collective agreement exists, an individual employee abdicates his right to object and loses any veto he may have to changes in his terms of employment if there were no such collective agreement.

No further employment legislation

The government appears to have confirmed that no further employment legislation is planned during this parliament. I reproduce the press release (issued because of the fuel crisis) below:

.............................................................................
Press release - 19/9/00
Secretary of State for Trade and Industry Stephen Byers today said
that no further changes are planned to employment law, following the
recent fuel protests.

After the first meeting of the Fuel Taskforce Mr Byers said:

"Contrary to speculation we are not considering changes to the
employment rights and responsibilities of employees in the oil
sector. We have said on a number of occasions that the Employment
Relations Act is the final piece of significant employment
legislation for this Parliament - that remains the position."

.............................................................................

New statutory instruments

CONTENTS

1. New statutory instruments
2. ET decision in Virdi v Metropolitan Police

________________________________________

1. New Statutory Instruments

Three new statutory instruments published today, none of which are likely to make anyone faint with excitement! They are...

• The Employment Code of Practice (Industrial Action Ballots and Notice to Employers) Order 2000 (SI 2000/2241) - brings the revised Code of Practice on Industrial Action Ballots and Notice to Employers into force on 18th September 2000

• The Employment Relations Act 1999 (Commencement No. 7 and Transitional Provisions) Order 2000 (SI 2000/2242) - brings into force the right to be accompanied at disciplinary and grievance proceedings on 4th September. Yet another statutory instrument published after it comes into force! An important transitional provision - it does not apply if the worker is invited or required to attend a hearing before 4th September.

• The Employment Code of Practice (Disciplinary and Grievance Procedures) Order 2000 (SI 2000/2247) - brings into force the new ACAS Code on Disciplinary and Grievance Procedures (also being published a week late!)

Copies of all three statutory instruments are attached (reproduced with permission of Her Majesty's Stationery Office).

________________________________________

2. Employment Tribunal Decision in Verdi v Metropolitan Police

Susan Belgrave of Coram Chambers (Counsel for Mr Verdi) has sent me the transcript of the above case, which achieved some notoriety recently in the press.

In a nutshell, Mr Verdi was an Asian police officer. He, along with a white female officer, was suspected of sending racist hate mail to other officers. However, whilst she was interviewed three times without being arrested, Mr Verdi was not interviewed until after his arrest. Moreover, his house was searched for 8 hours using the POLSA team (the police search squad, usually used for anti-terrorist searches), and the police deliberately disclosed Mr Verdi's ethnicity in an attempt to redress an impression of inter-racial hostitlity within the force.

After an 18 day hearing, the employment tribunal found (by way of inference) that the different treatment of Mr Verdi was on grounds of his race.

If anyone would like a copy of the transcipt (warning - 41 pages!), please contact Susan Belgrave on susan.belgrave@coramchambers.co.uk .

Annual Survey of Discrimination Awards

The Equal Opportunities Review has this morning published its annual survey of discrimination awards. The full text of the press release appears below.



[Text of press release follows]

RACE BIAS AWARDS UP 65%

Compensation awarded by employment tribunals to victims of race discrimination increased by two-thirds (65%) in 1999, according to the annual survey of compensation awards published in Equal Opportunities Review*. The average award for sex discrimination was also up – by 5%. However, the average award for disability discrimination fell by 13%.

The overall compensation employers were ordered to pay out by employment tribunals in 1999 to victims of unlawful discrimination increased by almost a third (30%). In total, tribunals awarded £2.55 million to victims of disability, race and sex discrimination in over 300 cases. Add in interest and the total awarded by tribunals was £2.68 million.

The average compensation award for victims of race discrimination was £9,948, slightly less than the average award of £9,981 in disability cases. Victims of sex discrimination were awarded significantly less on average – £7,208. So, for every £1 awarded in compensation for sex discrimination, around £1.38 was awarded for disability or race discrimination.

Awards for injury to feelings were highest in cases of race discrimination (£5,297) – 40% more than the average in sex discrimination cases (£3,787) and 46% more than in cases of disability discrimination (£3,635).

The Equal Opportunities Review survey – which provides the most comprehensive and up-to-date picture available of compensation trends – covered awards made by employment tribunals in Britain between 1 January 1999 and 31 December 1999. Tribunals awarded compensation in 313 discrimination cases – 201 cases of sex discrimination; 71 of race discrimination; 36 of disability discrimination; four cases of race and sex discrimination combined; and one of disability and sex discrimination combined.

The survey’s other key findings, by jurisdiction, include:

Sex discrimination cases

• Compensation awards ranged from £100 to £182,247.
• Nearly a fifth of compensation awards were for £10,000 or more.
• Awards for injury to feelings, which accounted for 52% of the total compensation awarded in sex cases, ranged from £500 to a record £37,500.
• Injury to feelings awards were highest in cases of sexual harassment, averaging £6,776, compared with an average of £2,538 in cases of dismissal.

Race discrimination cases

• Compensation awards ranged from £665 to a record £130,736.
• Over a quarter of compensation awards were for £10,000 or more.
• Awards for injury to feelings, which accounted for 53% of the total compensation awarded in race cases, ranged from £500 to £30,000.

Disability discrimination cases

• Compensation awards ranged from £500 to £77,696.
• Over a quarter of compensation awards were for £10,000 or more.
• Awards for injury to feelings, which accounted for just over a third of the total compensation awarded in disability cases, ranged from £200 to £15,000 – a record high†.

"Compensation awards ‘99 " – Equal Opportunities Review No. 93, September/October 2000. Available on annual subscription (£215) from Industrial Relations Services, 18-20 Highbury Place, London N5 1QP (020 7354 5858).

This figure was exceeded at the beginning of 2000, when an employment tribunal made an award of £25,000.

Government reviews on balancing home and work

CONTENTS

1. Department for Education and Employment - Creating a Work-Life Balance
2. Department of Trade and Industry - Support for Working Parents
3. Recent EAT Decisions
4. Advertisement - Employment vacancy at Liberty


________________________________________

1. DfEE - Creating a Worklife Balance

The Minister for Employment and Equal Opportunities, Margaret Hodge, announced new guidance this morning to help employers improve the working lives of all their staff.

The DfEE also published the results of a survey amongst 7,500 employees. The key statistics are:

• 19% of employees with no caring responsibilities would like to work part-time - the same number as those with caring responsibilities
• 12% would like the option of a job-share (19% for those with caring responsibilities)
• 34% would like flexitime (37% for those with caring responsibilities), whereas only 24% of all employees currently work flexitime
• only 6% of all employees currently work a compressed hours week (fitting a full-time job into, say, 4 days not 5), but 33% would like to do so.
The new Guide offers advice to employers on how to set up policies and working practices which enable their employees to achieve a better work-life balance. The booklet, 'Creating a Work-Life Balance - a good practice guide for employers' is available from the DfEE on 0845 6022260, ref: WLBGPGE1

________________________________________

2. DTI - Debate on Support for Working Mothers

In a seemingly unrelated development (no cross-referencing appears in the press releases), the DTI has launched a debate about how working parents can be given more choices in balancing their responsibilities at home and work.

A discussion paper - 'Work and Parents: competitiveness and choice' was published today. Details can be found at www.dti.gov.uk/er/review.html . It is anticipated that a formal consultation paper will be issued later this year.

________________________________________


3. New EAT Decisions

Facey v Midas Retail Security [Lindsay P., 18th August 2000]

This case deals with the scenario where a litigant accuses a tribunal of bias. Mr Facey, who brought a race discrimination claim, engaged a representative who held no UK legal qualifications. At the beginning of the hearing, the representative alleged bias against the tribunal, invited the tribunal to discharge itself, and then both he and Mr Facey refused to participate further in the proceedings. Mr Facey subsequently appealed the (inevitable) dismissal of his claim and costs order.

Detailed notes of the hearing were provided by each of the two Respondents' Counsel, the chairman, both lay members and one solicitor. The Applicant's representative asked the EAT to order the chair and members to be cross-examined on their evidence. The issue was the competency and compellability of tribunal members to give evidence before the EAT.

Following a lengthy review of the authorities, the EAT held the following steps should be taken when allegations of bias are made against the members of a tribunal:

(i) The steps outlined in the EAT practice direction para. 9(3) should be taken, and unsworn comments may then be taken from the chair and, if necessary, lay members

(ii) the EAT may require sworn witness statements from persons other than members of the tribunal

(iii) the EAT may invite but not require the chair or members of the tribunal to provide sworn, written evidence in chief as to primary fact

(iv) in a suitable case it will be possible, after such an invitation, for adverse inferences to be drawn from a member's failure without good reason to provide sworn, written evidence in chief as to primary fact

(v) if, notwithstanding the material already collected, the EAT thinks that cross-examination would materially assist it, it may require the attendance for oral cross-examination of deponents not including the chairman or other members of the tribunal

(vi) the EAT is not to hear a member's cross-examination, even where the member has agreed to attend

(vii) the EAT is not to require the attendance of a member for cross-examination, nor to require disclosure of documents from him/her

(viii) the EAT is not to draw adverse inference from a member's failure to attend for cross-examination.



________________________________________

4 Advertisement - Employment Vacancy

Liberty
Protecting Civil Liberties
Promoting Human Rights

Locum Legal Officer

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The post holder will be responsible for undertaking test cases on Human Rights and Civil Liberties issues, both in domestic and European Court of Human Rights jurisdictions. Experience of taking such cases is necessary. The post is suitable for a barrister or solicitor.

The post is full time but applicants who can only work part time may be considered. Secondments will be considered.

Salary £22,600-£25,000.

Please apply in writing with c.v. to arrive on or by Friday 22nd September to:

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Legal Director
Liberty
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Reminder - new right to be accompanied commences today

A quick reminder: the new right to be accompanied in disciplinary and grievance procedures comes into force today.

Also coming into force today is the revised ACAS Code on disciplinary and grievance procedures in the workforce. For a copy, go to http://www.acas.org.uk/acascode.pdf (you need Adobe Acrobat to read it).

New EAT cases

Not much happens in August - just a few new EAT cases of interest...

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.


Barnes Thomas & Co -v- Leavesley [13.7.2000, HHJ Peter Clark]

What happens to employees of a solicitors' firm when the firm is intervened in by the Law Society? Are they deemed to be dismissed, under section 136(5) of the ERA 1996, for the purpose of redundancy? The EAT thought not in this case, and that the contracts of employment remained operative. However, it remitted the case back to the ET for further consideration on the facts, and to allow the Law Society to make representations.


Charnos v Donnelly [27.7.2000, Lord Johnson]

In a conduct dismissal, the employer promised an 'informant' employee that his identity would remain confidential. The tribunal ordered the employer, who was giving evidence, to produce documents and answer questions that would identify the employee (it not being possible to anonymise the relevant document). The EAT held that the interests of a full and fair hearing will not always override an employer's desire to honour a promise of anonymity. It reversed the tribunal's decision and held that the employer did not need to produce the documents or answer the questions.


Clark v Watford Borough Council [4.5.2000, HHJ Peter Clark]
Another example of the EAT saying that employment tribunals should only allow applications of 'no case to answer' in the rarest circumstances, and that it is usually incumbent on the tribunal to hear both parties' evidence before deciding the case.



________________________________________

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• an overview of the Human Rights Act
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General Update

CONTENTS

1. DTI Consultation - Work and Parents
2. TUC on the lookout for the next workplace plague
3. Recent EAT Decisions
4. Advertisement


________________________________________

1. DTI Consultation - Work and Parents

A couple of months ago, the DTI set up a review team to report on the effectiveness of the UK's family friendly policies. In particular, it was to deal with the issue of whether parental leave should be paid (rather than unpaid, as it is at present).

The review team has called for submissions from the public on various matters within its terms of reference. In a novel fashion, it has set up a response form on the internet! The URL is http://www.dti.gov.uk/er/review.htm


________________________________________

2. Unions urged to identify the next workplace plague

The TUC is today (Tuesday) calling upon trade unions to be on the lookout for new workplace diseases, in the hope of discovering the `next big thing' after RSI and stress.

In a special report in the TUC-backed quarterly safety magazine Hazards, union safety reps are urged to ask their workmates what health problems they are experiencing, so that detailed research can identify previously hidden occupational diseases. Safety reps are to be trained by the TUC in techniques such as "body mapping", which involves workers marking on a map of the body where they are experiencing pain, collating the results and identifying any links with work.

________________________________________


3. New 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.


D'Souza v London Borough of Lambeth [27.6.2000, Morison J.]
Another appellate decision in the long-running battle by Mr D'Souza against his former employers. This raises an interesting point. Section 4 of the Race Relations Act 1976 prohibits discrimination when offering employment and during employment. In Post Office v Adekeye (no. 2), the Court of Appeal held that section 4 cannot be relied upon by an ex-employee who complains about the way s/he is treated after dismissal. Mr D'Souza attempted to argue that Adekeye was wrongly decided, being contrary to a purposive construction of the RRA 1976. The EAT agreed that Akekeye appeared to be contrary to parliamentary intent: however, it held that it was bound by Adekeye and therefore Mr D'Souza's appeal must fail. The EAT also suggested that the Court of Appeal might like to review its decision in Adekeye following the ECJ's decision in Coote v Granada Hospitality (discriminatory references after dismissal can found an action).



Giraud UK v Smith [26.6.2000, Maurice Kay J.]
A contract of employment provided that if an employee failed to give his contractual notice when resigning, it would result in a deduction from his wages equivalent to the number of days short. The EAT upheld the employment tribunal's decision that this was a penalty clause (and thus invalid). It was not a liquidated damages clause (which would be enforceable) because it was not a genuine pre-estimate of the loss to the employer if the employee failed to give proper notice, and did not prohibit the employer from seeking further damages (in addition to docking pay) through the courts.



West Yorkshire Police v Vento [8.6.2000, Lindsay J.]
In a sex discrimination claim, if there is no actual male comparator and the tribunal has to rely on a hypothetical male comparator, the best way to do it is to look at how the employer treated men in similar (albeit not identical) circumstances. It is dangerous, albeit not impermissible, to rely on evidence from witnesses who are asked how they would have treated men - since such witnesses would know their answers cannot be disproved.

________________________________________

4 Advertisement

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Midland Bank v Madden - C of A result

I have received the following message from David Reade, Counsel for the employee in Foley v Post Office (which was heard at the same time as Midland Bank v Madden).

He tells me that no written decision is yet available, but that the Court of Appeal wanted to give a verbal judgment before the vacation.

Waters v Police - H of L judgment

The House of Lords handed down its opinion yesterday (27th July 2000) in Waters v Commissioner of Police for the Metropolis.

FACTS
Ms Waters was a police officer. She alleged she was raped and buggered by a fellow police officer. Her complaint about that officer was not taken seriously or properly investigated. Moreover, she was subsequently tormented and bullied by her colleagues for complaining about a fellow officer. She suffered psychological harm as a result of (1) the failure to investigate, and (2) the subsequent bullying.

Her claims of sex discrimination failed before the IT, EAT and Court of Appeal - essentially because it was accepted that the constable was not acting in the course of his employment. That finding was not appealed.

She also brought a claim for personal injuries in the High Court. This was struck out as disclosing no reasonable casue of action, and the strike-out was upheld by the judge and the Court of Appeal. It is against that strike-out that Ms Waters appealed to the House of Lords.


DECISION
The House of Lords held (unanimously) that is clearly arguable that an employer (including the police, as a quasi-employer) owes a duty of care to an employee to investigate allegations of rape by colleagues. It is also clearly arguable that the commissioner was (1) in breach of that duty by failing to investigate; and, (2) vicariously liable under section 48 of the Police Act 1964 for the subsequent acts of police officers in bullying and harassing the Claimant.

Accordingly the appeal was allowed and the strike-out overturned.

The House also stated (by a majority of 4:1) that the cases holding that the police owe no duty of care to individuals to investigate crime might not be applicable where the police are also the employer of the victim of crime, since such a person falls to be considered under duties to employees, not duties to members of the public.


gordpublish@supanet.com) for notifying me of this decision>

EC Directive on Combating Disctimination on Grouds of Racial and Ethnic Origin

The EC Directive on Combating Disctimination on the Grouds of Racial and Ethnic Origin (in, inter alia, employment) was promulgated on 29th June 2000 and published in the Official Journal of the European Communities on 19th July 2000.

A copy is attached to this Email (pdf format).

The main points are:

o eliminate direct and indirect discrimination (including harassment) on racial and ethnic origin in matters relating to employment, membership of trades unions, social security, healthcare, education and access to supply of goods and services
o positive action is expressly permitted
o burden of proof on Respondents to disprove discrimination once a prima facia case is established
o to be implemented by 19th July 2003

Thanks to Henry Scrope of DiscLaw Publishing Limited (www.emplaw.com) for notifying me of the publication of the Directive.

H of L abolished Advocates' Immunity from Suit

Not strictly employment, but sufficiently of interest to everyone...

The House of Lords has just handed down judgment abolishing advocates' immunity from claims of negligence in civil proceedings.

In Arthur J.S. Hall v Simons (and conjoined appeals) (HL 20th April 2000), a 7-member House of Lords unanimously held that advocates can now be sued for negligence arising out of their conduct of civil hearings. The principle of advocates' immunity, as set out in Rondel v Worsley, should be abolished.

Although not the central issue of the case, the House of Lords split down the middle on whether to retain the immunity for criminal cases. Three members held it should be retained, two held it should be abolished (subject to certain safeguards), one said it should be abolished absolutely, and one member did not express an opinion.

The transcript can be downloaded from http://www.parliament.the-stationery-office.co.uk/pa/ld199900/ldjudgmt/jd000720/hall-1.htm

Doubtless BMIF and SIF will be in touch with us soon concerning a nice little increase in premiums...

New TUPE Decision

Adam Creme, head of the Employment Rights Unit at UNISON, has sent me the transcript of an important TUPE decision, handed down by the EAT on 28th June 2000.

In RCO Support Services v UNISON (+ others), the Aintree Hospitals NHS Trust decided to transfer much of the work from one hospital to a nearby hospital, three miles away. The issue was whether there was a transfer of undertakings in relation to the cleaning and catering support services (which were undertaken by different companies, one at each of the two hospitals) - and, therefore, if the cleaning and catering staff had their employment transferred from one company to the other.

On the facts, the ET held (and Lindsay J. in the EAT upheld) that there had been a transfer.

The case is important because:

(a) unlike most TUPE decisions, it is very readable!

(b) it analyses the conflicting decisions in Suzen, Betts v Brintel and ECM Vehicles v Cox;

(c) in doing so, it sounds the death-knell to the ECJ's decision in Suzen.

Essentially, the EAT confirms that there is no rule of law that - where a labour-intensive business does not take on staff employed by a previous undertaking - there is no transfer of undertaking.

Lindsay J.'s concluding paragraph is reproduced below:

"16. ...In the light of ECM in the Court of Appeal we cannot say with any confidence that the [employment] tribunal thereby erred in law. We are no sorry so to conclude. There is a real danger, were Suzen to be given the unqualified force that has been argued for it, that in labour-intensive areas of employment such as cleaning and catering, where contracting-out is now common and where significant assets are often either unnecessary or unlikely to be moved, an incoming contractor would be able to avoid the [Acquired Rights] Directive by the simple expedient, often easy of achievement, of ensuring that he took on none of the previous contractor's workforce. The protection of employees' acquired rights, a basic objective of the Directive, would not only be jeopardised but, as Miss Gower, for the former employees, asserts, would be jeopardised in relation to perhaps the most vulnerable of all classes of workers, those with only relatively simple and commonly-available skills which, on that account, the incoming contractor could readily choose to supply by way of others in the labour market. There are, of course, economic arguments that incoming contractors should be free to bid for their contracts as competitively as they may dare and should thus be entirely free to avoid all obligations to the entrenched employees. However, such economic arguments are not for us and, had they been intended to hold sway, the Acquired Rights Directive would surely never have been called into existence. We dismiss the appeals."

Part Time Workers Regs

Employment Law (UK) List - http://www.danielbarnett.co.uk

A quick reminder: the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 come into force today.