Leggatt Report

REVIEW ON TRIBUNALS - THE LEGGATT REPORT

The government has, today, published Sir Andrew Leggatt's report on the tribunal system.

The report is long! Readers brave enough to try it can access it, together with the consultation paper issued by the government based on the report's recommendations, from here. Ignore the date of March 2001 on the website - it was only made publicly available today!

With regard to employment tribunals, the main recommendations are:

(a) ETs should remain as tribunals - there should be no new 'employment court' system set up to deal with all claims arising from employment disputes (paras 3.22-3.24). However, further consideration should be given to transferring employment-related claims (eg personal injury sustained at work) to the ETs jurisdiction (Part II, ETs, para. 28)

(b) Administrative responsbility for ETs and the EAT should be transferred from the DTI to the LCD (paras. 3.25-3.28)

(c) A recommendation to the government that it introduces a system of licensing for unqualified employment advisers (or set up other safeguards) (paras. 4.33-4.39)

(d) Possibly increase the number of locations at which ETs sit (Part II, ETs, para 7)

(e) Legal aid should not be extended to employment tribunals (Part II, ETs, para 12)

(f) Costs should not follow the event (Part II, ETs, para 24) - although a study should be set up to look into this issue further in the future (Part II, ETs, para 23)

(g) The test for permission to appeal from the EAT to the Court of Appeal be brought in line with other areas of law, namely from 'real prospect of success on a question of law' to 'cases which raise an important point of principle or practice' (Part II, ETs, para. 29)

The consultation paper invites views on a vast range of issues. The closing date for submissions is 30th November 2001.

Burden of Proof Directive

Further to my bulletin dated 25th July, the SEX DISCRIMINATION (INDIRECT DISCRIMINATION AND BURDEN OF PROOF) REGULATIONS 2001 have today been placed on the HMSO website.

They come into force on 12th October 2001.

Burden of Proof Directive

SEX DISCRIMINATION - BURDEN OF PROOF DIRECTIVE ==============================================

The Sex Discrimination Burden of Proof Directive 1997 was due to come into force at the beginning of this week.

Richard Lister of Lewis Silkin tells me he has made enquiries of the Cabinet Office, who say that Regulations were laid before parliament last Friday, and are due to come into force in 12 weeks time.

The Regulations will make two changes to the Sex Discrimination Act 1975:

First, inserting a section 63A which provides that where an applicant proves facts giving rise to a prima facie case of discrimination, the tribunal SHALL uphold the complaint of discrimination unless the Respondent proves that he did not commit the act. In other words, the burden of proof formally shifts from Applicant to Respondent. This is no more than already happens in practice pursuant to King v GB China Centre.

Secondly, the definition of indirect discrimination will be amended from making in unlawful to impose an unjusifiable "requirement or condition" to a "provision, criterion or practice". This will not make a significant difference.

Tribunal Reform Consultation Paper

TRIBUNAL REFORMS - CONSULTATION DOCUMENT

Within a week of the introduction of the new procedural regime, the government has issued a consultation paper on further reform of the employment tribunals.

Subscribers may have seen some details of these proposals in a leaked report to The Times on Friday 20th July. The full consultation paper is now available at http://www.dti.gov.uk/er/individual/resolution.pdf . Responses are invited by 8th October 2001.

The main proposals, on which the government seeks views, are:


GRIEVANCE PROCEDURES
===========================
- organisations which do not have dispute resolution procedures in place - or do not use them when workplace disagreements arise - to have arrangements for managing such disagreements;

- increasing awards at employment tribunals where a basic new dispute resolution procedure has not been used by the employer - with awards being reduced where an employee has not used the grievance procedures before applying to the tribunal;

- limited extensions to the time limit for lodging tribunal claims where an internal disciplinary or grievance procedure is still in play - in order to facilitate resolution in the workplace;



COSTS
======
- an issue fee (£100 has been mooted) to issue an application in the tribunal. Exemptions would apply to those on benefits;

- a presumption in favour of awarding costs in 'weak' cases, with an obligation for tribunals to provide reasons where they do not award costs;

- tribunals to be allowed the discretion to award wasted non-legal costs (such as a party's overnight expenses) in circumstances where a party has acted vexatiously.



PROCEDURE
===========
- a fast-track system to be introduced for certain jurisdictions (such as unlawful pay deductions and breach of contract);

- allow the Presidents of the Employment Tribunals to issue practice directions, in order to achieve greater consistency throughout the country

- introducing a fixed period of conciliation to focus parties' minds within that period on whether or not they were interested in reaching a settlement.



UNFAIR DISMISSAL LAW
=====================
- a limited amendment to unfair dismissal legislation to allow employment tribunals to disregard minor procedural errors by employers, provided such errors have made no difference in practice and the dismissal is otherwise fair.

Upper Qualifying Age Decision

UPPER QUALIFYING AGE - HARVEST TOWN CIRCLE v RUTHERFORD

The Employment Appeal Tribunal has today handed down the long-awaited decision in HARVEST TOWN CIRCLE v RUTHERFORD, dealing with the question of whether the upper qualifying age for unfair dismissal and redundancy is contrary to Article 141 of the Treaty of Amsterdam.


FACTS
=====
Harvest Town Circle dismissed Mr Rutherford, who was aged 67. He claimed unfair dismissal. The Respondent relied on sections 109 and 156 of the Employment Rights Act 1996 (which states that employees cannot claim unfair dismissal / redundancy if they are over the normal retirement age, presumed to be 65).

Mr Rutherford responded by arguing that ss 109 and 156 were contrary to Article 141 - ie equal pay for men and women. This is because unfair dismissal and redundancy rights count as 'pay', and more men than women work beyond age 65. Therefore the upper qualifying age is indirectly discriminatory on grounds of sex against men, since more men will work beyond 65 and therefore fail to receive the 'pay' of unfair dismissal and redundancy rights.


1ST INSTANCE DECISION
=====================
The Employment Tribunal found for Mr Rutherford and, following the earlier case of NASH v MASH/ROE [1998] IRLR 168, held that ss 109 and 156 were unlawful and should not be followed.


THE EAT DECISION
================
The EAT overturned the tribunal's decision on technical points, but left the matter open for future attempts.

The basis of the decision was twofold:

First, the EAT held that the statistics used by the employment tribunal were unsatisfactory. It gave guidance on the statistics that would probably be needed to attack ss 109 and 156 successfully, and remitted the matter back to the employment tribunal.

Secondly, it held that the tribunal had erred in failing to invite the Secretary of State to give evidence on objective justification. It held that it was not for a small employer to justify such a fundamental statutory provision, and the Secretary of State should - if necessary - be witness summonsed to explain how the sections can be objectively justified or, alternatively, explain why he was not going to attempt to justify them.


COMMENT
=======
The upper qualifying age saga has not been laid to rest. The EAT's guidelines on the necessary statistics (which are set out in detail in the
decision) are cumbersome and will be an extremely difficult hurdle to overcome. Nevertheless, there can be little doubt that an attempt will be made. The decision is undoubtedly correct - and it is not for the EAT to make findings of facts on statistics that are not currently available.
However, it means that employers remain uncertain as to whether they have immunity from unfair dismissal claims when dismissing staff over retirement age.

New Tribunal Procedure Rules

CONTENTS
--------------
1. New Tribunal Procedure Rules
2. Advertisement - Boodle Hatfield


-------------------------------------------------------

1. NEW TRIBUNAL PROCEDURE RULES

The Employment Tribunals (Constitution and Rules of Procedure) Regulations
2001 come into force today, replacing the 1993 Regulations of the same name.
They apply to all tribunal proceedings, irrespective of when (or if) the case commenced.

The full Regulations can be downloaded from http://www.legislation.hmso.gov.uk/si/si2001/20011171.htm (and see http://www.legislation.hmso.gov.uk/si/si2001/20011459.htm for the amendment to the commencement date from 18th April 2001 to 16th July). They are already included in the latest update to Harvey on Employment Law at [R-1317].

The important changes are:

(1) introduction of an "overriding objective" to deal with cases "justly", which is defined to include ensuring the parties are on an equal footing, saving expense and dealing with cases in a way that is proportionate to the issues. The parties are placed under a duty to assist the tribunal in furthering the overriding objective. Users of the civil courts will recognise this formula from the Civil Procedure Rules. Applicants may wish to rely on this to persuade tribunals to order Respondents to share the cost of instructing experts. This 'proportionality' requirement may go some way towards limiting the effect of the recent House of Lords decision in Anya v Oxford University (see bulletin dated 24/3/01), which obliged tribunals to investigate every detailed historical allegation of less favourable treatment in discrimination cases.

(2) late IT3s are no longer deemed to include an application to extend
time. Such an application must now expressly be made (the old position being that there was a 'deemed' application if reasons for the delay were given when lodging the IT3).

(3) the costs rules have changed, so that the tribunal has power to award
costs if a party - or his/her representative - has acted "vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived". The introduction of the 'misconceived' test should, in theory, increase the number of costs orders made. Further, the tribunal now has power to assess costs in the sum of up to £10,000 (increased from £500). The ability for the parties to agree a higher sum of costs, or for the tribunal to refer the costs to the county court for taxation, remains.

(4) the rules relating to giving directions as to evidence have been simplified.

-------------------------------------------------------

2. ADVERTISEMENT
EMPLOYMENT SOLICITOR VACANCY
BOODLE HATFIELD OXFORD

Boodle Hatfield is a leading firm with 33 partners and a total of 170 staff, most of whom are in London with 40 in our central Oxford office.

Our renowned employment law team, led by Russell Brimelow and Warren Wayne, has developed a very high profile. All members of the team are encouraged to be involved in our broad range of work with blue chip clients, whether advising on legislation, drafting contracts, training line managers and HR professionals or representing clients in employment tribunals.

Due to ongoing expansion Boodle Hatfield is looking for an additional Assistant Solicitor to work alongside Russell Brimelow in our Oxford office, ideally with 4-5 years PQE. This is an ideal opportunity with excellent prospects if you want a change of environment and are looking to establish your own practice with a leader in the field.

In addition to quality experience of contentious and non-contentious employment law, you will be a strong team player, able to meet tight deadlines, with excellent communication skills and a practical approach to problem solving.

We offer a competitive salary and benefits package, combined with high quality work and a friendly environment. For more details please look at our website: www.boodlehatfield.com

To apply please send your CV plus covering letter outlining why you are suitable for this role, to:

Joan Bradshaw, HR Manager, Boodle Hatfield, 61 Brook Street, London W1K 4BL
e-mail: jbradshaw@boodlehatfield.com

Alternatively, for an informal discussion, please phone Joan Bradshaw on 020
7318 8126

New EAT Decisions

NEW EAT DECISIONS
------------------------------------------------
The following decisions have been placed on the EAT website in the last few days. The judgments can be downloaded from http://wood.ccta.gov.uk/eat/eatjudgments.nsf

* * * * * * *

DAN KIEN TRAN v GREENWICH VIETNAM COMMUNITY PROJECT (Mr Recorder Langstaff QC, 5th April 2001)

A standard misconduct unfair dismissal case. It is of use because of the proposition laid down by the court - perhaps more clearly than in previous cases - that:

"We think that in general terms any employer who operated a disciplinary process in which he who investigated the alleged defence was he who judged it, or any employer who operated a disciplinary process in which there was no right of appeal, would (and in most cases perhaps should) be found to have been outside the bounds of the fairness required by section 98 of the Employment Rights Act 1996. It must be all the stronger when those two features are present in the same process."

This will be a very helpful quotation for Applicants who are pursuing claims involving procedural unfairness. Note, on the facts, the EAT did not interfere with the finding that the dismissal was fair.

* * * * * * *

EKPE v METROPOLITAN POLICE COMMIESSIONER (Mr Recorder Langstaff QC, 25th May 2001)

This deals with the vexed question of what amounts to a disability. Several issues arose in the case. The interesting one deals with 'normal day-to-day activities'.

The Applicant had difficulty applying make-up and putting rollers in her hair. The tribunal held these were not 'normal day-to-day activity', because "they are activities carried out almost exclusively by women.
Secondly, using rollers is an activity that the Tribunal believes is only carried out by a minority of women. Even if the Tribunal is wrong as to the proportion of women who use rollers, it is clear that these are activities that are normal only for a particular group of people, namely mostly women."

The EAT overturned this, stating "we should nonetheless emphasise that what is normal cannot sensibly depend on asking the question whether the majority of people do it. The antithesis for the purposes of the Act is between that which is "normal" and that which is "abnormal" or "unusual" as a regular activity, judged by an objective population standard. Just as what is "substantial" for the purposes of the Act may best be understood by defining it as anything which is more than insubstantial, so too may what is "normal"
best be understood by defining it as anything which is not abnormal or unusual (or, in the words of the Guidance, "particular" to the individual applicant)."

* * * * * * *

LLEWELLYN RYLAND LTD. v JONES & KEMP
(Charles J., 15th May 2001)

An unremarkable case on the facts. It contains a useful analysis of the extent to which tribunals are obliged to give reasons, and contains helpful guidance on Meek v City of Birmingham and subsequent cases. A good case to rely on when attacking a tribunal's decision as containing inadequate reasoning.

Fixed Term Workers Regulations

DELAY IN FIXED-TERM WORKERS REGULATIONS
------------------------------------------------

Implementation of the Fixed Term Employees (Prevention of Less Favourable
Treatment) Regulations 2001, which were planned to come into force on 10th July 2001, is being delayed. No alternative commencement date has been announced.

For details of the draft Regulations, see bulletin dated 10th March 2001.

The government has explained the delay (at
http://www.dti.gov.uk/er/fixed/index.htm) as being due to "particular problems with implementation in the UK", without stating what those problems are. It relies on a clause in the Fixed Term Workers Directive
(http://europa.eu.int/eur-lex/en/lif/dat/1999/en_399L0070.html) giving member states up to an extra year to implement the Directive if "special difficulties" exist.

What the government omits in its press release is that the implementation date for the Directive was 10th July 1999. Even allowing for the extra year, the Directive should have been implemented by 10th July 2000. The UK has therefore been, and continues to be, in breach of the Directive.

announcement>

Fixed Term Workers - Correction

DELAY IN FIXED-TERM WORKERS REGULATIONS
------------------------------------------------

A correction to the previous message.

I stated that the Fixed Term Workers Directive had to be implemented by 10th July 1999. In fact, this date was a misprint in the English version of the Official Journal. The implementation date was corrected by a Corrigendum to the Directive, to 10th July 2001 with a 12-month extension if "special difficulties" exist.

So the government will not be out of time for implementing the Directive provided it can establish the "special difficulties".

(Thanks to the three people who corrected me on this!)

Seminar Notes - Remedies in Employment Disputes

SEMINAR NOTES - REMEDIES IN EMPLOYMENT DISPUTES
-------------------------------------------------

The notes from the 2 Gray's Inn Square seminar on Remedies in Employment Disputes (June 2001) are available free of charge to subscribers to this mailing list.

For a copy of the notes (Word format, 122K), please REPLY to this Email.

Consultation Paper on Paid Holiday

The government has today published a consultation paper proposing changes to the Working Time Regulations 1998.

These proposals are as a result of Tuesday's decision of the ECJ in BECTU v UK (see bulletin 26.6.01), holding that the UK 13-week qualifying period for holiday pay is in breach of the Working Time Directive.

Curiously, the proposed amendments provide that in the first year of employment, holiday pay "shall accrue...at the rate of 1/12th for each month of employment". In other words, holiday entitlement will not start until the worker has worked for one month.

This appears to remain incompatible with the Working Time Directive, which provides for the right to paid holiday to begin accruing from the first day of employment.

The consultation paper can be downloaded from http://www.dti.gov.uk/er/work_time_regs/palconsult.pdf (Adobe Acrobat needed). The closing date for responses is 27th July 2001.

Lord Chancellor changes Discount Rate

NEWSFLASH - LORD CHANCELLOR CHANGES DISCOUNT RATE
-------------------------------------------

This afternoon, the Lord Chancellor has announced a reduction in the discount rate to 2.5%.

This will affect awards for long-term future loss of earnings in unfair dismissal and discrimination claims (the reduction from the long-standing 3.0% discount rate means that multipliers will be higher, and therefore awards will be higher).

The change will take effect from 28th June 2001.

13-week holiday rule unlawful

A number of people have been having problems receiving bulleins recently.
Until the problem is resolved, all messages are being sent in 'text' format.
Apologies for the unattractive appearance.
--------------------------

NEWSFLASH - BECTU v UK
------------------------

The ECJ has held, following the Advocate-General's opinion (see bulletin 8th February 2001), that the condition under the WORKING TIME REGULATIONS stating that the right to paid holiday does not accrue until workers have been employed for 13 weeks is unlawful.

This means that the UK will have to change the WORKING TIME REGULATIONS to remove the 13-week qualification period for paid holiday.

This decision will particularly affect people working in the media (who usually work on short-term contracts). It will also affect sectors such as cleaning, catering and security services, where short-term contracts abound.
Likewise, supply teachers (who often work for short periods) and temporary workers will benefit.

TUPE decision - ADI v Firm Security

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On Friday (22nd June 2001), the Court of Appeal handed down its decision in ADI (UK) Ltd v Firm Security Group Ltd..

Facts
ADI provided security services at a shopping center. ADI terminated the contract, and the shopping centre initially stated it would take over the employment of the nine security officers. However, following a dispute over terms (prior to the 'transfer'), with the officers apparently indicating reluctance to be transferred, the shopping centre announced it would not be taking on any of the nine security officers.

The Employment Tribunal
The employment tribunal held (by a majority) that the provision of security services was not a discrete economic entitity and, in any event, there had been no transfer because neither assets nor staff were taken on by the shopping centre.

The Employment Appeal Tribunal
The EAT held (again, by a majority) that there had been a discrete economic entity, but that - due to the lack of transfer of assets and staff - there had been no transfer of the undertaking.

Issues for the Court of Appeal
The Court of Appeal (in line with precedent, by a majority!) allowed the transferor's appeal. It considered the following issues:
1. whether the tribunal was under a duty to consider whether the shopping centre had avoided taking staff on the avoid the effect of the TUPE regulations; and,
2. if so, what the effect of that was.

Issue 1: Was there a duty to investigate the motive behind not taking on any staff?
Both May and Dyson LJJ considered that there was an active duty on tribunals to investigate the motive behind not taking on any workers - provided the issue was raised by one of the parties. May LJ went further, and stated that there was not a positive burden of proof on the person arguing against the transfer to establish the reason for not taking on the workforce.

Issue 2: What is the effect of deliberately not taking on the workforce?
May and Dyson LJJ held that transferees could not escape the effect of the TUPE Regulations by the simple device of refusing to take on a workforce - the very mischief which the Regulations are designed to prevent. Thus, if it is decided that the transferee failed to take on the workforce so as to avoid there being a transfer, the tribunal should treat the case as if they had taken on all of the workforce. It must be noted that this point, whilst clearly agreed with by the majority of the Court of Appeal, was conceded by the transferee and was not fully argued.

In the minority, Simon Brown LJ held that the reason for not taking on the workforce was not relevant. The simple question was whether the workforce transferred (this being one of the many factors in deciding whether a TUPE-transfer had taken place). The reason was immaterial - either the workforce transferred (pointing to a TUPE-transfer), or it did not.

Comment
Because the point about the effect of a deliberate refusal to take on the workforce was conceded by the transferee, this is not as authoratitive a ruling as would otherwise be hoped for. Nevertheless, it follows the clear and useful dicta of the Court of Appeal in ECM v Cox. A purposive construction of the Acquired Rights Directive has always been adopted, and this approach is more consistent with a purposive construction.

To all people with TUPE headaches - take courage! May LJ stated that sections of the 1977 Directive have been "emasculated out of existence by purposive judicial interpretation", and that "the concept of transfer is now a judicially constructed fiction derived from the purpose of the Directive and the Regulations...". It is always heartening to know the Court of Appeal has trouble with TUPE concepts too!

Please note that I have prepared this note from a copy of the transcript which has been approved by the Court but which is subject to editorial corrections. Any quotations from the decision cannot be regarded as authoritative.

Government to promote Dispute Resolution

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Determined to show it still has ideas after the general election, the government has this afternoon (Friday) announced a review of employment disputes to encourage dispute resolution.

Alan Johnson, employment relations minister, today announced that the government is concerned about the increasing number of tribunal claims - which do not appear to be related to the recently introduced causes of action (such as working time, minimum wage, parental leave etc.)

The government will therefore be issuing a consultation document shortly to consider alternative methods - other than litigation - of promoting good employment practice in the workplace. The review is not intended to amend employment rights, but will concentrate on the way in which those rights are exercised.

A factual background paper is available at http://www.dti.gov.uk/er/individual/dispute.pdf

The Queen's Speech - Legislation proposals

Employment Law (UK) List - http://www.danielbarnett.co.uk
Instructions on how to subscribe to this bulletin, and a DISCLAIMER, appear at the bottom of this Email.

The Queen's speech this morning included proposals for the following legislation:

• The Welfare Reform Bill, which will increase the rate of statutory maternity pay to £100pw from 2003, and increase the payment period from 18 to 26 weeks; and,

• The Female Representation Bill, which will allow political parties to "increase the representation of women in public life" via all women shortlists, should they so desire. Readers will recall that the 1997 Labour party women-only shortlist policy was declared contrary to the Sex Discrimination Act.

There was no mention of introducting anti-discimination legislation to comply with the EC Equal Treatment Framework Directive. Nor was there the much anticipated proposal for parternity pay. Still, there are four more sessions of parliament to go!!

New Faces / EAT cases

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CONTENTS

1. New Faces and Places
2. New EAT decisions

________________________________________

1. New Faces and Places

The government lineup for employment posts is as follows:

Work & Pension Secretary - Alastair Darling
Minister for Trade - Baroness Symons
Minister for Work - Nick Brown
Minister for Pensions - Ian McCartney
DTI Minister of State for Employment Relations and Regions - Alan Johnson

(I know it's not particularly interesting news, but occasionally it is useful to have a check list of who's who!)

________________________________________

2. New EAT Decisions

These cases are unreported (although some may be reported in due course). The transcripts were posted on the EAT website (http://wood.ccta.gov.uk/eat/eatjudgments.nsf) on 12th June 2001.


Jiad v BBC World Service [Hooper J., 5th June 2001]
An appeal by a litigant in person on grounds, in essence, of inadequate reasoning/perversity. The decision contains no points of law, but is of interest because of a costs order granted to the successful Respondent at the end of the appeal. This costs order was made despite stating that the appeal had been conducted properly by the Appellant, on the ground that the appeal was "of no merit and should never have been brought". Is this a sign of things to come under the new costs test (not yet in force)?



Asda Stores v Malyn [Lindsay J., 6th March 2001]
A long-standing ASDA employee allowed her son to use her 10% staff discount card. This was in breach of a very clear store policy, which the employee had signed and had drawn to her attention (in writing) on a number of occasions, stating that misuse of the card was gross misconduct. Despite the fact that the discount achieved was only £3, ASDA dismissed her because it said it had to be seen to apply the disciplinary rules consistently between all employees. The ET found the dismissal was unfair because, during the disciplinary process, the staff member has said she had not realised that gross misconduct would result in dismissal. The EAT overturned that decision. It laid down the following four rules (albeit tentatively, saying that it was overturning the decision on other grounds and the four principles did not form the ratio):

A dismissal will be fair, despite the employee's ignorance as to the actual consequences of an act, if:

1. there is a provision in the disciplinary code stating that a particular act or omission would amount to gross misconduct, with the possible sanction of dismissal (and it was reasonable in the industry to have that as an act of gross misconduct);
2. the employer takes reasonable steps, including asking the employee to sign it, to bring the disciplinary code to the attention of employees;
3. the employee knows he is doing wrong under the code; and,
4. the employee had access to the code.

Lana v Positive Action Training in Housing Ltd. [Mr Recorder Langstaff QC, 15th March 2001]
Ms Lana was a trainee quantity surveyor. She had a contract with Positive Action for Positive Action to find her a training contract / work placement for a year. Positive Action placed her with a firm (W) for training. After five months, she told W that she was pregnant, and W immediately cancelled the remainder of her placement. Positive Action subsequently terminated their contract on the basis that the placement had been terminated by W in circumstances beyond their control, and they had no alternative placements to offer. The tribunal found that this was a non-discriminatory reason for terminating the contract, and dismissed the claim under the Sex Discrimination Act. The EAT overturned this finding. It held that W was the agent of Positive Action for the purpose of providing training, and that Positive Action was accordingly vicariously liable for any discrimination by W under section 41 of the SDA 1975. Accordingly it remitted the case to a fresh tribunal.

Worker Consultation - EC Directive

Today's papers are flooded with the news that the EC has finally approved the proposed Directive for Informing and Consulting Employees in the European Community.

Assuming the Directive is formally passed and published (which is now fairly automatically - the approval being the controversial stage), the UK will have to implement the Directive within seven years (faster for employers with 150+ employees).

The legislation will require all employers with over 20 workers in a single workplace (or 50 workers throughout different workplaces) to inform and consult their employees on all crucial decisions, including:

• the reasonably foreseeable development of the undertaking's activities and its economic and financial situation (Art 4(1)(a));
• the situation, structure and reasonably foreseeable developments of employment within the undertaking (Art 4(1)(b)); and,
• most importantly - any decisions likely to lead to substantial changes in the work organisation or contractual relations (Art 4(1)(c)).

There are provisions enabling the domestic legislation to contain obligations of confidentiality, and there is an exception to the consultation requirement where "the nature of th[e] information or consultation is such that, according to objective criteria, it would seriously harm the functioning of the undertaking or would be prejudicial to it."

An important point on enforcement: the Directive states that domestic legislation must provide that, in cases of serious breach of consultation requirements relating to Art 4(1)(c) (ie the third bullet-point above), any business decisions taken - or dismissals made - will have no legal effect until the employer has fulfilled his consultation obligations (or, if no longer possible, made adequate redress).


Comment
This is an enormously controversial Directive, and the CBI's response has been quite scathing (see link to CBI below).

Prior to the election, the government published the Employee Consultation Rights Bill (see bulletin dated 3rd April 2001). It is insufficient to comply with the Directive, because it provides a penalty of up to four weeks' pay for breach of the obligations (rather than, as the Directive requries, stating that decisions to dismiss or vary contracts will - if the breach of the consultation obligations is serious - be of no effect). If the Bill is not made Directive-compliant, it will generate a significant (and expensive for the government) number of Francovich claims.

Remedies in Employment Disputes - Seminar Advertisement

ADVERTISEMENT

Remedies in Employment Disputes

a seminar by the 2 Gray's Inn Square Chambers Employment Group

Wednesday, 27th June 2001

TOPICS TO BE COVERED

• gathering evidence for the compensatory award, eg proving and disproving a failure to mitigate; the problem of older workers; employees who start a new business
• remedies in discrimination claims, including 'personal injury' damages in the tribunal, and remedies other than compensation
• settlement and compromise agreements, with special consideration of the tax implications of settlement
• TUPE update (written presentation only)


SPEAKERS

Milan Dulovic (1982)
Adrian Roberts (1988)
Daniel Barnett (1993)



ADMINISTRATIVE DETAILS

Date: Wednesday, 27th June 2001

Venue: The Morrison Hall, 1 Atkin Buildings, Gray's Inn, London

Time: 6.15pm registration (seminar commences 6.30pm; drinks and buffet 8.30pm)

Fees: First Delegate - £50+VAT; Subsequent Delegates - £45+VAT


For further information and a booking form, please contact Claire Halas on claire@2gis.co.uk

ACAS Arbitration Scheme

Employment Law (UK) List - http://www.danielbarnett.co.uk
Instructions on how to subscribe to this bulletin, and a DISCLAIMER, appear at the bottom of this Email.

The new ACAS Arbitration Scheme went 'live' yesterday (21st May 2001). It was initially delayed after fears that it would contravene the Human Rights Act 1998.

It is available for unfair dismissal claims only (ie not discrimination, working time, breach of contract etc.) and cannot be used where there are issues as to whether the employee was dismissed, or whether the employee has sufficient continuity of service to bring a claim. The parties must agree to adopt the arbitration route, and it is not appropriate for complicated questions of law (eg TUPE or EC issues). The hearings are private and are inquisitorial rather than adversarial in nature.

A short - and excellent - summary of the arbitration procedure can be found at http://www.oneclickhr.com/hrupdate .

The relevant statutory instrument, namely the ACAS Arbitration Scheme (England and Wales) Order 2001 (SI 2001/1185) can be found at http://www.legislation.hmso.gov.uk/si/si2001/20011185.htm.

ACAS have produced a guide to the arbitration scheme, at www.acas.org.uk/index-11.htm .