Employment Act 2002

1. Anticipated Commencement Dates

The DTI has published a list of anticipated commencement dates for the various provisions of the Employment Act 2002.


2. Government Response following consultation on simplifying maternity/paternity rules

The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paterity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for maternity to leave to remain at 21 days (the government had initially suggested increasing it to 28 days);

Employment Act 2002

Correction to previous bulletin

The bulletin sent out half an hour ago stated:

The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paternity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for maternity leave to remain at 21 days (the government had initially suggested increasing it to 28 days).

In fact, it should have stated:

The DTI has published its response, following its consultation paper on simplifying maternity/paternity rules. The conclusions include:
• paternity leave will be available only in one block (of either one or two weeks), rather than available to be taken on a day-by-day basis;
• notification for parental leave to remain at 21 days (the government had initially suggested increasing it to 28 days).

Apologies for the error!

Online Completion of IT1s and IT3s

***PLEASE NOTE*** Following feedback, I am now putting the phrase '[Employment Law List]' at the end (rather than the beginning) of these bulletins. Message rules to divert the Emails should still work, but it will allow the subject to be seen more easily.

The DTI has placed IT1 and IT3 forms on the internet for online completion. Probably useful for litigants in person (question: will it encourage a greater number of frivolous claims from people surfing the web?), but we lawyers love filing pieces of paper so much we will probably continue to produce our own and post them.

Draft Discrimination Regulations Published

[A job advertisement (Chester region) appears at the end of this bulletin]

The government has this morning issued a consultation document containing the draft Regulations for the anti-discrimination legislation that must be implemented by next year, under the Equal Treatment Framework Directive.

The draft Regulations cover:
• religion (and similar philosophical beliefs);
• sexual orientation;
• disability; and,
• equal pay
The religion and sexual orientation proposals, which will come into force in December 2003, maintain existing concepts of direct and indirect discrimination but (just to keep us on our toes) make use of slightly different language when defining indirect discrimination. There are particular definitions of (and prohibitions upon) harassment.

The disability Regulations, which are expected to come into force on 1st October 2004, operate by amending the Disability Discrimination Act 1995. The amendments, which are extensive, include a clearer definition of discrimination on grounds of disability, introducing a 'defence' to the duty to make reasonable adjustments if the employer does not know (and could not be expected to know) the employee is disabled, abolishing the small business exemption, and extending the DDA to partnerships and barristers.

Responses are sought by 24th January 2003.

DTI Unfair Dismissal Guide

[A job advertisement (Glasgow region) appears at the end of this bulletin]

***PLEASE NOTE*** I have been asked to stop using the identifying phrase '[Employment Law List]' at the beginning of the subject line for these bulletins, as it stops some people seeing the full subject in their Email boxes. This may mean that some people lose the ability to use Mail Rules to divert the bulletins automatically into an Email folder. If it bothers enough people into Emailing me back, I'll reinstate the '[Employment Law List]' prefix.


Since the DTI guides to the law in my bulletin of 16th October proved popular (1,586 of you clicked through to the links), I will keep notify people whenever new ones are published.

Happily, nobody has to wait very long! Late on Friday afternoon, the DTI published its updated guide to unfair dismissal on its website.

Consultation on Commencement Dates

The government has issued a consultation document in response to the recommendation of the Better Regulation Taskforce that commencement dates for employment legislation should be harmonised so as to have just one or two 'implementation dates' each year (see bulletins dated 6/8/02 and 16/5/02). Presumably the DTI misses the irony of its issuing a consultation document to discuss reducing red tape!

Also, the DTI has published two more guides to the law (and these are quite excellent): one dealing with whistleblowing, the other with rights to notice and reasons for dismissal.

Consultation on Commencement Dates

The government has issued a consultation document in response to the recommendation of the Better Regulation Taskforce that commencement dates for employment legislation should be harmonised so as to have just one or two 'implementation dates' each year (see bulletins dated 6/8/02 and 16/5/02). Presumably the DTI misses the irony of its issuing a consultation document to discuss reducing red tape!

Also, the DTI has published two more guides to the law (and these are quite excellent): one dealing with whistleblowing, the other with rights to notice and reasons for dismissal.

New EAT Decisions

These decisions have been placed on the EAT website in the last 24 hours.

Bournemouth Borough Council v Meredith
(Maurice Kay J., 24/7/02)

The employee, a teacher, was dismissed for gross misconduct when he took a disruptive 12-year old girl by the wrist and dragged her outside the classroom, in circumstances where she was being disruptive during an exam and had refused several instructions to leave the room.

The EAT upheld the decision that the dismissal was unfair. Helpfully, the EAT gave clear guidance on the procedures a school should follow if it wanted to impose a 'no physical contact' rule on its teachers. The Court of Appeal has refused Bournemouth's application for leave to appeal.


Johnson v Scottish & Newcastle
(HHJ Wilkie, 26/2/02)

Mrs Johnson was assistant manager of a pub. She was dismissed for making excessive phone calls. Because of an inadequate procedure, the tribunal found the dismissal was unfair. The compensatory award was, on the face of it, £4,620. However, the tribunal reduced this by 95% (on the basis that there was a 95% chance a fair procedure would have reached the same result) - yielding £231. It then further reduced this by 90% for contributory fault, and awarded a final compensatory award of £23.18 .

The EAT held it was an error of law to impose the two reductions cumulatively without having regard to their overall effect. It breached the overriding 'just and equitable' test. Accordingly the assessment of award was remitted to a fresh tribunal.

New EAT Judges

The Lord Chancellor's department has, today, appointed HHJ Jeremy McMullen to sit as a full-time judge in the EAT with effect from 7th October 2002.

This follows on from last month's announcement appointing six QCs to sit as new part-time judges in the EAT, namely John Bowers, Timothy Brennan, Timothy Dutton, John Hand, Jan Luba and Richard Plender QC.

In force today...

Just in case anyone missed it in the newspapers, a reminder that the following come into force today:

1. Increase in national minimum wage
This increases from £4.10 to £4.20 for workers over 22, and from £3.50 to £3.60 for those between 18 and 22.
For more detail, see the bulletin of 5th March 2002.

2. Fixed Term (Prevention of Less Favourable Treatment) Regulations 2002
These provide that fixed term workers should receive, in broad terms, as good a remuneration package as permanent workers. It also converts fixed term workers to permanent workers after four years in post, unless the employer can justify retaining the worker on a fixed term basis.

For more detail, see the bulletins of 26th June 2002 and 22nd January 2002, or go to http://www.dti.gov.uk/er/fixed/

Government to appeal Rutherford

According to an article in today's internet edition of Personnel Today, the government has announced it intends to appeal the Stratford tribunal's decision in Rutherford v TownCircle (see bulletin dated 23rd August, reproduced below), where the tribunal held that the upper qualifying age for unfair dismissal and redundancy was contrary to the EC Treaty of Amsterdam.

No doubt the government's appeal will focus on the tribunal's refusal to consider the reasons put forward for justifying the disparate impact of the qualifying age, which the tribunal refused to consider on the ground that the reasons amounted to no more than speculation by current civil servants, rather than evidence of fact from the civil servants in post back in the 1970s (when the upper qualifying age was introduced).

Employees over retirement age should be advised to lodge claims pending a final decision in Rutherford. If applicants wait until the result before presenting a claim, they will almost certainly find themselves time-barred.

New EAT Decisions

The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.

Royal National Orthopaedic Hospital Trust v Howard
(HHJ Reid, EAT 23rd August 2002)

Mrs Howard brought an unfair dismissal and sex discrimination claim against the National Orthopaedic Hospital, which had employed her for 18 years. The claims were compromised in a COT3 agreement in 1998, which compromised "these proceedings and all claims which the Applicant has or may have against the Respondent."

Two years later, in 2000, she was asked by a surgeon to assist at an operation for one day but the hospital refused to authorise a temporary appointment - she said, because of her previous sex discrimination claim. She therefore brought a claim for victimisation.

The EAT upheld the employment tribunal's decision that the compromise agreement did not prevent her from bringing the later claim of victimisation. Although it was open to parties to contract away future causes of action which had not yet arisen, an objective construction of the words used in the COT3 did not lend itself to that interpretation. Accordingly she could proceed with the victimisation claim.


Kirkton v Tetrosyl
(HHJ Reid, EAT 23rd August 2002)

No real legal principles, but an example of what does not amount to a 'disability'. Mr Kirkton suffered from mild incontinence: he wore one or two incontinence pads a day, had occasional urinary leakage and needed to go the toilet about eight times a day. The EAT upheld the tribunal's decision that this did not amount to a 'disability' within the meaning of the Disability Discrimination Act 1995. In reaching this conclusion, the EAT accepted that the tribunal had properly relied on the experience of two of the three people sitting on the tribunal who also suffered from incontinence and were in a position to judge the severity of Mr Kirkton's symptoms.

[At the end of this bulletin is an advertisement for CLT courses]

The Court of Appeal has handed down judgment in Lawal v Northern Spirit, upholding (by a majority) the EAT's decision that it is legitimate for part-time judges in the EAT to also appear as advocates in the EAT, in front of a lay member they have previously sat with. (note: for the EAT decision, please see my bulletin of 31st January 2002)

Issue
Does a real possibility of bias exist when a part-time judge of the Employment Appeal Tribunal appears as an advocate before the Appeal Tribunal chaired by another judge sitting with two lay members, one or both of whom have previously sat with the part-time judge?

Majority Decision (Mummery LJ and Phillips MR)
There is no real risk of bias at common law, and no lack of a fair trial under Art 6(1) of the European Convention on Human Rights. The lay members are educated and intelligent people, with minds of their own, and they are quite capable of distinguishing the role of a neutral presiding judge from that of a partisan advocate. To suggest a lay member cannot tell the difference is condescending and wrong.

Minority Decision (Pill LJ)
It is not appropriate that part-time judges appear as advocates in front of lay members with whom they have sat. The lay members look to the judge for guidance and there is a special degree of trust and confidence reposed in him. To allow him then to appear as an advocate is likely to diminish public confidence in the administration of justice.

Protection Code of Practice - Part 2

The long-awaited Part 2 of the Data Protection Code of Practice, dealing with record management, is now available.

The Code sets out the procedures (and penalties) for storing personal data about employees and job applicants. It also explains the processes under which employees (and unsuccessful job applicants) can insist on obtaining copies of those records (for a £10 fee). The bulk of the Code deals with data collection and storage procedures.

Slightly worryingly, the Code sets out what it regards as 'best practice', without always distinguishing that best practice from legal obligation. It may therefore mislead small employers who lack specialist HR knowledge (if any actually read it!). Having said that, it is an enormously impressive and thorough document, and one which (if followed) is going to ensure that employers follow the spirit as well as the letter of the law.

For information about Part 1 of the Code (recruitment and selection), see the bulletin of 14th March 2002. Part 3 (monitoring at work) is undergoing consultation, and Part 4 (medical information) is not yet available.

Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest)

Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.

Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.

The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.

Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.

Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.

Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.

Upper Qualifying Age: Rutherford v TownCircle (trading as Harvest)

Readers will recall Rutherford v Harvest Town Circle (see bulletin 18/7/01), in which the Employment Appeal Tribunal set out the legal test for whether the unfair dismissal / redundancy upper qualifying ages were contrary to EU Art 141.

Yesterday, the Stratford employment tribunal sent out its reserved decision dealing with the statistics on whether the upper qualifying ages had a disparate impact on women in the workplace and, if so, whether the government could justify the upper qualifying age on grounds of social policy. This was in the Rutherford case as well as the conjoined appeal of Bently v DTI - both cases dealing with applicants over 65 at the date of dismissal.

The tribunal held, in a very thorough analysis of the statistics and of the policy behind the Act, that the upper qualifying ages did have a disparate impact, and that they could not be justified by the government.

Accordingly the upper qualifying ages were disapplied and the applications for unfair dismissal and redundancy payments were allowed to proceed.

Implications: Subject to appeal, it now seems clear that the upper qualifying ages are unlawful and that people over 65 will be entitled to claim unfair dismissal and redundancy payments.

Technically, each applicant would need to prove the statistical disparity. But in practice this should be straightforward - the Stratford tribunal has annexed the relevant statistics to its decision and they can be produced as hearsay evidence in any tribunal.

Better Regulation TaskForce Report

CONTENTS:
1. Better Regulation TaskForce Reports
2. What are your burning questions?

1. Better Regulation TaskForce Report

The government has announced it intends to implement a number of recommendations of the Better Regulation TaskForce Report (see bulletin 16/5/02). Note that this is completely separate from Janet Gaymer's Employment TaskForce Report, which was published last week.

The government intends to:
• pilot free or subsidised employment law advice visits to
employers of less than 50 employees;
• run a number of pilot schemes giving a shared HR resource to
small firms;
• most significantly, consult on how harmonising start dates for domestic regulations
could best work in practice
The third of those will, if implemented, be an immense relief to employers and lawyers alike, who will only have to grapple with one or two commencement dates a year.


2. What are your Burning Questions?

I am putting together a course for Central Law Training entitled:

'Unfair Dismissal: Your Top 10 Questions Answered'

It would be of great help if people could Email me with one or two (or more!) questions that they would find of interest at such a seminar. If you're willing to give me any ideas, please use this Email.

Aggravated Damages: New EAT Decision

The EAT has held that employees can recover aggravated damages in discrimination claims arising from the unreasonable conduct of the employer after dismissal - in this case, the unreasonable conduct of the employer in the way it conducted its defence in the ET claim.

The case is Zaiwalla & Co v Hodson (EAT, Maurice Kay J., 24/7/02)

Facts
Ms Hodson was a mature law graduate. She obtained a training contract with Zaiwalla & Co. After several months of ongoing sex discrimination, she was dismissed. The tribunal found the reason for her dismissal was the sex discrimination, and awarded her £43,149 compensation (including £7,500 aggravated damages)

The Issue(s)
A number of issues were raised as to the liability decision, all of which were rejected in fairly robust terms.

The important issue on quantum was whether a tribunal was entitled to make an award of aggravated damages in respect of the way that Zaiwalla & Co (who represented themselves) conducted their defence in the employment tribunal claim. Although this issue had been raised previously in Chief Constable of West Yorkshire Police v Vento, the EAT had not found it necessary to determine the point.

The Result
The EAT held that it was proper to award aggravated damages by reference to conduct in the defence of proceedings. Indeed, it was desirable to do so on policy grounds, because otherwise it might result in satellite litigation for victimisation (although query whether this analysis is correct, given the House of Lord's decision in Khan, which was not considered by the EAT).

The EAT rejected the argument that there are better ways of dealing with the problem of unreasonable litigants - for example, by an order for costs to reflect unreasonableness.

However, the EAT made it clear that this was an almost unique case on the facts. It held:

"28. We are sensitive to the possibility that overenthusiastic litigants and litigants in employment tribunals may be tempted to read our conclusions in a way which would give the green light to claims for aggravated damages in respect of alleged misconduct in the defence of proceedings almost as a matter of routine. They would be wrong to do so. The findings of fact in the present case...were exceptional in their assessment of the litigation misconduct. We expect that cases attracting awards of aggravated damages for such behaviour will be few and far between. It saddens us that this exceptional case concerned the behaviour of a firm of solicitors."

[Employment Law List] A Request

This is an automatic message, sent to the older members on my mailing list.

For the last year or so, I have been asking all new subscribers to complete a short form identifying themselves (basically, name and firm) when they sign up. Because you joined before I started this system, I don't know who you are.

Would you mind completing a (very) short form identifying yourself? Just click on the link at the bottom of any of my normal bulletins (not this one), and you will be taken to a web page to complete your details.

Sorry for disturbing you, but I hope you won't mind helping me out. It simply means that I have a better idea of who receives my Email bulletins. As always, I promise that I will never sell or distribute the details of anybody who is on the mailing list.

Equality Bill - Consultation

First, a note of apology. For some reason I am looking into, about 10% of the subscribers to this bulletin suddenly stopped receiving them last month (although from my end they still appear to be on the list). If your colleagues are not getting these Emails, I am looking into it.

Second (and of more general interest!), the Cambridge Centre for Public Law has published a draft Equality Bill which went out to consultation earlier this week. The Bill is drafted by Professor Bob Hepple and Lord Lester of Herne Hill and will be introduced by Lord Lester as a Private Member's Bill later this year.

It is an all-encompassing discrimination code, covering discrimination in employment (and other fields) on grounds of sex, race, disability, religion, marital or family status, sexual orientation or gender reassignment, and age.

The Act is 74 pages long but reads like a dream (to those, like me, who dream about employment law!).