Acas has, overnight, published its Guidance on Age Discrimination.
It is a very clear guide although, being aimed at employers, it is pitched at too basic a level for employment lawyers. There are some very useful flowcharts towards the end of the booklet.
View Acas Guide to Age Discrimination (.pdf file)
Thursday, 27 April 2006
Friday, 21 April 2006
Tribunal Bias
This case is an example of a tribunal decision being set aside because of apparent bias (i.e. where the fair minded and informed observer present at the hearing, not being a party or associated with a party, having considered the facts, would consider that there was a real possibility that the tribunal was biased).
An employment tribunal chair, at the outset of a case, said to the employer's representative (who was not a legal representative) that it "may be in some difficulties in maintaining that the claimant was dismissed by reason of her conduct as it appeared from the [documents] lodged by the [employer] that there was no indication that the reason for the [employee's]dismissal was her conduct."
As a result of that indication, the employer conceded that the dismissal was unfair (a position it had previously challenged). It then appealed.
The EAT (Lady Smith presiding) noted that the representative, also at the EAT, "was anxious, not confident and it was easy to envisage that he would have been vulnerable to pressure".
Against that impression of the representative, and the fact that the chairman had not expressly said "This is only a preliminary view and we are open to persuasion", the EAT considered the test for apparent bias was made out. Accordingly it set aside the finding of unfair dismissal and allowed the employer to withraw its concession.
Chris Project v Hutt
An employment tribunal chair, at the outset of a case, said to the employer's representative (who was not a legal representative) that it "may be in some difficulties in maintaining that the claimant was dismissed by reason of her conduct as it appeared from the [documents] lodged by the [employer] that there was no indication that the reason for the [employee's]dismissal was her conduct."
As a result of that indication, the employer conceded that the dismissal was unfair (a position it had previously challenged). It then appealed.
The EAT (Lady Smith presiding) noted that the representative, also at the EAT, "was anxious, not confident and it was easy to envisage that he would have been vulnerable to pressure".
Against that impression of the representative, and the fact that the chairman had not expressly said "This is only a preliminary view and we are open to persuasion", the EAT considered the test for apparent bias was made out. Accordingly it set aside the finding of unfair dismissal and allowed the employer to withraw its concession.
Chris Project v Hutt
Thursday, 20 April 2006
Tupe and the Vanishing Dismissal
The EAT (HHJ Peter Clark sitting alone) has held that TUPE 1981 operates so that, when employees are dismissed for misconduct before a TUPE transfer, but are reinstated after the date of transfer by the transferor, the dismissal 'vanishes' and the employees are deemed to have been transferred under TUPE.
In other words, despite having been dismissed at the date of the transfer, they are deemed (if the appeal is successful) to have been employed "immediately before" the transfer.
In reaching that conclusion, the EAT relied on previous decisions of the EAT and Court of Appeal where a dismissal was held to have 'vanished' following a successful appeal, for example for the purpose of deciding whether an employee had continuity of employment for claiming unfair dismissal.
G4S Justice Services v Anstey & Simpson
In other words, despite having been dismissed at the date of the transfer, they are deemed (if the appeal is successful) to have been employed "immediately before" the transfer.
In reaching that conclusion, the EAT relied on previous decisions of the EAT and Court of Appeal where a dismissal was held to have 'vanished' following a successful appeal, for example for the purpose of deciding whether an employee had continuity of employment for claiming unfair dismissal.
G4S Justice Services v Anstey & Simpson
Wednesday, 19 April 2006
Bank Holiday Mondays / Part-Time Workers
The EAT has considered, in a case with slightly unusual facts, the difficult question of whether part-time employees who do not work on Mondays are entitled to a pro rata apportionment of extra time off in respect of Bank Holidays which always fall on a Monday.
Four of the UK's eight bank holidays always fall on Monday (Easter Monday, May Day, Spring Bank Holiday and August Bank Holiday). One is always on a Friday (Good Friday) and the other three vary. For some time, there has been debate about whether the Part Time Workers (Prevention of Less Favourable Treatment) Regulation 2000 prohibit an employer from allowing a full-time worker time off for Monday Bank Holidays, when part-timers who do not work Mondays do not receive time off.
The Claimant in this case worked Wednesdays, Thursdays and Fridays. The employer, Capita Business Services, operates seven days a week. The tribunal found that the part-time Claimant suffered a detriment compared with full-time workers, in that he did not receive the benefit of Monday bank holidays. However, it found the reason was not his status as a part-time worker, but simply because he did not work Mondays. Accordingly his claim was dismissed.
The Employment Appeal Tribunal upheld the tribunal's decision. It placed considerable emphasis on the fact that the Respondent operated a seven-day a week business, and that full-timers who worked five days a week excluding Mondays also did not receive time off for those Bank Holidays.
This decision provides some support for employers who do not give part-time workers additional pro rata time off in respect of bank holidays. However:
McMenemy v Capita Business Services Ltd
Four of the UK's eight bank holidays always fall on Monday (Easter Monday, May Day, Spring Bank Holiday and August Bank Holiday). One is always on a Friday (Good Friday) and the other three vary. For some time, there has been debate about whether the Part Time Workers (Prevention of Less Favourable Treatment) Regulation 2000 prohibit an employer from allowing a full-time worker time off for Monday Bank Holidays, when part-timers who do not work Mondays do not receive time off.
The Claimant in this case worked Wednesdays, Thursdays and Fridays. The employer, Capita Business Services, operates seven days a week. The tribunal found that the part-time Claimant suffered a detriment compared with full-time workers, in that he did not receive the benefit of Monday bank holidays. However, it found the reason was not his status as a part-time worker, but simply because he did not work Mondays. Accordingly his claim was dismissed.
The Employment Appeal Tribunal upheld the tribunal's decision. It placed considerable emphasis on the fact that the Respondent operated a seven-day a week business, and that full-timers who worked five days a week excluding Mondays also did not receive time off for those Bank Holidays.
This decision provides some support for employers who do not give part-time workers additional pro rata time off in respect of bank holidays. However:
- it remains to be seen whether the same approach would be taken with a five-day (rather than seven-day) a week business, where ALL full timers receive the benefit of bank holidays;
- the case did not deal with justification (as it was not necessary to do so). It is strongly arguable that an employer would be justified in restricting the benefit of time off for Bank Holidays to people who actually work on those days, even if doing so has a detrimental impact on part-time workers.
McMenemy v Capita Business Services Ltd
Sunday, 16 April 2006
Reversal of Polkey
Last week, I reported Alexander & Hatherley v Bridgen Enterprises, in which the EAT (Elias P. presiding) considered s98A(2) of the Employment Rights Act 1996. This section, which partially reverses Polkey, provides:
"98A(2) Subject to subsection (1) [compliance with the statutory minimum dismissal procedure], failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that s98A(2) enables employers to avoid a finding of unfair dismissal in respect of any breaches of what might otherwise be regarded as a 'fair' procedure, when the employer could establish that the 'fair' procedure would not have saved the employee from dismissal.
On the same day last week, another division of the EAT (HHJ McMullen presiding) handed down a decision holding almost precisely the opposite - see Mason v Ward End Primary School.
HHJ McMullen holds that s98A(2) only rescues employers when the procedural breach amounts to breach of a formal procedure - either one that is written down, or one which has arisen through custom and practice. However, he considers it does not extend to more general breaches of a 'fair' procedure, such as those envisaged by the Acas Code of Practice.
In reaching this decision, HHJ McMullen repeats his views (far more briefly expressed) in Pudney v Network Rail last month, which were regarded by Elias P. at para. 56 of Alexander & Hatherley v Bridgen Enterprises as wrong. However, in this more recent case, HHJ McMullen has set out full reasoning for his conclusion, rather than just asserted a principle.
Thus we are left with two inconsistent - and both, well-reasoned - decisions of the EAT on a very important point of interpretation of s98A(2). As I understand it, neither case is being appealed to the Court of Appeal.
"98A(2) Subject to subsection (1) [compliance with the statutory minimum dismissal procedure], failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of section 98(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."
In Alexander & Hatherley v Bridgen Enterprises, Elias P. held that s98A(2) enables employers to avoid a finding of unfair dismissal in respect of any breaches of what might otherwise be regarded as a 'fair' procedure, when the employer could establish that the 'fair' procedure would not have saved the employee from dismissal.
On the same day last week, another division of the EAT (HHJ McMullen presiding) handed down a decision holding almost precisely the opposite - see Mason v Ward End Primary School.
HHJ McMullen holds that s98A(2) only rescues employers when the procedural breach amounts to breach of a formal procedure - either one that is written down, or one which has arisen through custom and practice. However, he considers it does not extend to more general breaches of a 'fair' procedure, such as those envisaged by the Acas Code of Practice.
In reaching this decision, HHJ McMullen repeats his views (far more briefly expressed) in Pudney v Network Rail last month, which were regarded by Elias P. at para. 56 of Alexander & Hatherley v Bridgen Enterprises as wrong. However, in this more recent case, HHJ McMullen has set out full reasoning for his conclusion, rather than just asserted a principle.
Thus we are left with two inconsistent - and both, well-reasoned - decisions of the EAT on a very important point of interpretation of s98A(2). As I understand it, neither case is being appealed to the Court of Appeal.
Thursday, 6 April 2006
Employment Agency Contracts
It's not strictly employment law, but a lot of employment lawyers will find this case useful. It's good news for those who advise employment agencies...
The Court of Appeal has allowed an employment agency's second-tier appeal in Euro London Appointments Ltd v Claessens International Ltd. The case is authority for the proposition that a clause making partial refunds against an employment agency's fees, in respect of permanent staff whose employment ends within 12 weeks of commencement, conditional on the client discharging the agency's fees within seven days is not an unlawful penalty (and therefore void).
The agency brought a summary judgment application for unpaid fees, in respect of two workers who had left their employment within a few weeks. The client admitted liability for part of the fees, but relied on a contractual term stating that it could have an 80% and 40% refund respectively, as the employees had been left employment within a few weeks of starting.
The agency responded by relying on another term, providing that the refund was only available if its fees were paid within seven days (which they had not been). The client responded, in turn, that the term was a penalty and should not be enforced. The District Judge and the Circuit Judge both accepted that the clause was a disguised penalty. The Court of Appeal reversed these decisions, and held that the clause making the refund conditional on payment within seven days was not a penalty.
The decision is complicated. The essence of the Court's reasoning (Chadwick LJ giving the leading judgment) is that the clause was simply a condition precedent to exercising the right to a refund, and was not a measure of damages (whether grossly disproportionate or not) for breach of contract.
Euro London Appointments Ltd v Claessens International Ltd
The Court of Appeal has allowed an employment agency's second-tier appeal in Euro London Appointments Ltd v Claessens International Ltd. The case is authority for the proposition that a clause making partial refunds against an employment agency's fees, in respect of permanent staff whose employment ends within 12 weeks of commencement, conditional on the client discharging the agency's fees within seven days is not an unlawful penalty (and therefore void).
The agency brought a summary judgment application for unpaid fees, in respect of two workers who had left their employment within a few weeks. The client admitted liability for part of the fees, but relied on a contractual term stating that it could have an 80% and 40% refund respectively, as the employees had been left employment within a few weeks of starting.
The agency responded by relying on another term, providing that the refund was only available if its fees were paid within seven days (which they had not been). The client responded, in turn, that the term was a penalty and should not be enforced. The District Judge and the Circuit Judge both accepted that the clause was a disguised penalty. The Court of Appeal reversed these decisions, and held that the clause making the refund conditional on payment within seven days was not a penalty.
The decision is complicated. The essence of the Court's reasoning (Chadwick LJ giving the leading judgment) is that the clause was simply a condition precedent to exercising the right to a refund, and was not a measure of damages (whether grossly disproportionate or not) for breach of contract.
Euro London Appointments Ltd v Claessens International Ltd
ECJ Holiday Pay Decision
The ECJ has, this morning (Thurs), handed down its decision in Federatie Nederlandse Vakbeweging v Staat der Nederlanden.
It is authority for the proposition that:
The ECJ has ruled that this practice is contrary to Article 7(2) of the Working Time Directive, which requires Member States to ensure that every worker is allowed four weeks' paid annual leave, and that this annual leave may not be replaced by a payment in lieu (except after termination of employment).
The ECJ's reasoning is, essentially, that permitting pay in lieu for untaken holiday entitlement in subsequent years might provide an incentive for employees, incompatible with the objectives of the Directive, not to take their full leave entitlement (which is an important health & safety measure) during the year.
Federatie Nederlandse Vakbeweging v Staat der Nederlanden
It is authority for the proposition that:
- the ECJ TUPE case of Henke v Gemeide Schierke and Verwaltuingsgemeinschaft Brocken remains the most unpronounceable case name out there, but only just (do feel free to challenge me on this!); and,
- more importantly, it is unlawful for EU states to allow employers to replace the minimum four weeks' paid holiday with pay in lieu, even when the holiday year has expired and the holiday allowance carries over into the following year.
The ECJ has ruled that this practice is contrary to Article 7(2) of the Working Time Directive, which requires Member States to ensure that every worker is allowed four weeks' paid annual leave, and that this annual leave may not be replaced by a payment in lieu (except after termination of employment).
The ECJ's reasoning is, essentially, that permitting pay in lieu for untaken holiday entitlement in subsequent years might provide an incentive for employees, incompatible with the objectives of the Directive, not to take their full leave entitlement (which is an important health & safety measure) during the year.
Federatie Nederlandse Vakbeweging v Staat der Nederlanden
Monday, 3 April 2006
Solution to New EAT Website problem
In a bulletin yesterday, I pointed out that an unfortunate side-effect of this weekend's revamp of the EAT website is that all previous links to EAT judgments on my bulletins no longer work. As you may know the www.emplaw.co.uk website hosts an archive of my bulletins in its subscription area.
I've now been told by Henry Scrope, who heads the team running the site, that they have found a solution and have already reconstituted all links to EAT judgments on the emplaw website, including links to EAT judgments from the archive of my bulletins. So if you are a subscriber to emplaw, the problem should be a non-problem.
At his request, I am happy to point out that subscribers to the professional area on emplaw.co.uk now receive at no extra cost a twice weekly web-updater e-mail of links to latest employment-law related material available free on the web. To help avoid 'information overload', it starts with a sifted section of around half a dozen of the more significant items.
Emplaw.co.uk offers free trial passwords to the professional subscription area - send an e-mail to Louise@emplaw.co.uk
I've now been told by Henry Scrope, who heads the team running the site, that they have found a solution and have already reconstituted all links to EAT judgments on the emplaw website, including links to EAT judgments from the archive of my bulletins. So if you are a subscriber to emplaw, the problem should be a non-problem.
At his request, I am happy to point out that subscribers to the professional area on emplaw.co.uk now receive at no extra cost a twice weekly web-updater e-mail of links to latest employment-law related material available free on the web. To help avoid 'information overload', it starts with a sifted section of around half a dozen of the more significant items.
Emplaw.co.uk offers free trial passwords to the professional subscription area - send an e-mail to Louise@emplaw.co.uk
Sunday, 2 April 2006
New EAT Website
An impressive new-look website has replaced the old EAT site, following the move of the employment tribunals service from the DTI to the Lord Chancellor's Department over the weekend.
However, an unfortunate consequence is that all links to judgments have changed (which means that all previous links to EAT judgments on these bulletins will not work).
The web address is the same - but it does look far more professional!
New EAT website - www.employmentappeals.gov.uk
However, an unfortunate consequence is that all links to judgments have changed (which means that all previous links to EAT judgments on these bulletins will not work).
The web address is the same - but it does look far more professional!
New EAT website - www.employmentappeals.gov.uk
Thursday, 30 March 2006
Compensatory Awards - Deductions
The EAT (HHJ McMullen presiding) has handed down an important decision dealing with a common problem for tribunals when assessing the compensatory award.
Knapton v ECC Card Clothing Ltd is authority for the proposition that:
Knapton v ECC Card Clothing Ltd
[Thanks to Andrew James of Thompsons solicitors, solicitors for the Appellants, for notifying me of this decision]
Knapton v ECC Card Clothing Ltd is authority for the proposition that:
- if an employee chooses to draw his pension early, following dismissal, the value of his pension benefits should not be deducted from any compensatory award;
- if his remuneration package includes life insurance, the compensatory award should not include compensation for the cost of purchasing that insurance, to the date of the hearing, unless the employee actually purchased alternative insurance cover. Assuming the employee has not died, he has suffered no financial loss by being uninsured. Whilst this decision was only dealing with unfair dismissal compensatory awards, the EAT's reasoning makes it clear that the principles will similarly apply to discrimination awards.
Knapton v ECC Card Clothing Ltd
[Thanks to Andrew James of Thompsons solicitors, solicitors for the Appellants, for notifying me of this decision]
ATypical Workers
Remember s23 of the Employment Act 1999? That's the section that gave the government the right to roll out employment rights to all categories of workers, not just 'employees'.
The DTI has, today, announced the results of its review of employment rights under s23. Is it going to clarify the status of agency workers, or give clergy express rights to claim unfair dismissal? The potential is just endless...
Well, have a look at the DTI's press release. In the face of this opportunity to clarify the employment rights of atypical workers, the government plans to...
For anyone who wants to read the full response to the employment status consultation, have a look here. And for the DTI's 'Success at Work' strategy paper, which sets out the government's vision for access to employment rights in the future, click here.
[Thanks to Gaby Charing, Policy Adviser on Discrimination and Employment Law to the Law Society, for telling me this had been published]
The DTI has, today, announced the results of its review of employment rights under s23. Is it going to clarify the status of agency workers, or give clergy express rights to claim unfair dismissal? The potential is just endless...
Well, have a look at the DTI's press release. In the face of this opportunity to clarify the employment rights of atypical workers, the government plans to...
- fulfil the Government's commitment to make time equivalent to bank holidays additional to annual holiday entitlement.
- crack down on rogue employers (whatever that means)
- errr... that's about it!
For anyone who wants to read the full response to the employment status consultation, have a look here. And for the DTI's 'Success at Work' strategy paper, which sets out the government's vision for access to employment rights in the future, click here.
[Thanks to Gaby Charing, Policy Adviser on Discrimination and Employment Law to the Law Society, for telling me this had been published]
Revised DDA Code of Practice on Meaning of Disability
The Secretary of State for Work and Pensions has issued revised Guidance on matters to be taken into account in determining questions relating to the definition of disability.
The new Guidance comes into force on 1st May 2006. However, the old Guidance (dating back to 1996) will continue to apply to claims arising out of acts of discrimination occurring before 1st May.
The revised Guidance can be downloaded as a pdf or a Word docment from the DRC website.
The new Guidance comes into force on 1st May 2006. However, the old Guidance (dating back to 1996) will continue to apply to claims arising out of acts of discrimination occurring before 1st May.
The revised Guidance can be downloaded as a pdf or a Word docment from the DRC website.
Tuesday, 28 March 2006
Polkey Reductions
The Court of Appeal has handed down an important decision emphasising the wide discretion that a tribunal has to make a Polkey reduction. The case, Gover v PropertyCare Limited is authority for the following propositions:
This decision is quite complicated, but important nevertheless.
Gover v PropertyCare Ltd.
[Thanks to John Bowers QC of Littleton Chambers, and Martin Budworth of Kings Chambers (Counsel for employer and employee respectively), for telling me this decision was published]
- a Polkey reduction (i.e. that a dismissal would have occurred, or probably occurred, in any event if a fair procedure had been followed) is a matter for the impression and judgment of the tribunal. An appellate court should not interfere lightly with the tribunal's assessment (para. 22)
- this is part of the overriding obligation to award compensation that is 'just and equitable'. Whilst not saying so in terms, King v Eaton (no. 2) (that tribunals should only 'reconstruct' the world as it would have been if it can be done reasonably easily) is thrown into considerable doubt (para. 19)
- more generally, the Court of Appeal cast doubt on the long-standing assumption that appeals to the Court of Appeal involve a review of the employment tribunal's reasoning, rather than that of the EAT (see para. 8)
This decision is quite complicated, but important nevertheless.
Gover v PropertyCare Ltd.
[Thanks to John Bowers QC of Littleton Chambers, and Martin Budworth of Kings Chambers (Counsel for employer and employee respectively), for telling me this decision was published]
Monday, 27 March 2006
Response Forms
The EAT has handed down yet another decision taking a common-sense approach to the overzealous application of the procedural rules. This case is authority for the proposition that the administrative rejection of a Response by the Secretary (not a chairman) is a 'decision' which is capable of review.
A few weeks after the prescribed Response Forms became compulsory, the Respondent sent a Response Form which it had downloaded from the ETS website. As is now well-known, the forms on the website were not prescribed, and so the Response was rejected.
Still within the 28 days, the Respondent lodged another Response Form. This one was also rejected, on the apparent basis that the boxes were the wrong size and so the ETS could not scan the form into their computer (HHJ Burke QC, at paragraph 7 of the judgment, commented that he could not see how the boxes could be said to be of the wrong size).
On appeal, HHJ Burke held:
Butlins v Beynon
A few weeks after the prescribed Response Forms became compulsory, the Respondent sent a Response Form which it had downloaded from the ETS website. As is now well-known, the forms on the website were not prescribed, and so the Response was rejected.
Still within the 28 days, the Respondent lodged another Response Form. This one was also rejected, on the apparent basis that the boxes were the wrong size and so the ETS could not scan the form into their computer (HHJ Burke QC, at paragraph 7 of the judgment, commented that he could not see how the boxes could be said to be of the wrong size).
On appeal, HHJ Burke held:
- tribunals have power to review the administrative decisions of the Secretary not to accept a Claim or Response Form on the basis it is a 'decision' within the meaning of the rules - therefore the power of review exists
- there is no requirement in the Rules about the size of the text or the boxes, or a need to be able to scan the forms into the ETS's computer system. Thus there was no valid reason for rejecting the Response Form
- since no tribunal could reasonably decide otherwise on review, it was appropriate to allow the appeal and substitute a decision that the Response Form should be accepted.
Butlins v Beynon
Age Discrimination
With age discrimination legislation only months away, the Age Positive campaign is launching Age Positive Week 2006, taking place 8th - 12th May 2006. This includes events and activities to challenge ageist attitudes and stereotypes and to raise awareness of ageism in the workplace.
Awards exist in the 'employer' and 'individual' categories - and you can even nominate yourself! Click here for information about the Age Positive week generally, or here for information about the awards.
Awards exist in the 'employer' and 'individual' categories - and you can even nominate yourself! Click here for information about the Age Positive week generally, or here for information about the awards.
Wednesday, 22 March 2006
Discrimination
In Brown v London Borough of Croydon, the EAT has reaffirmed that it is not necessary for tribunals to adopt the traditional two-stage approach when considering discrimination claims.
Traditionally, tribunals have been expected to consider the separate questions of (1) was there less favourable treatment of the Claimant? and, if yes, (2) what is the reason why the Claimant was treated less favourably?
Until Shamoon v Chief Constable of Northern Ireland was decided by the House of Lords in 2003, it was an error of law (and thus, capable of appeal) if the tribunal did not identifty, and answer, these two questions in turn. In Shamoon, the House of Lords said it was not always necessary to ask and answer the two questions, and in appropriate cases (usually with a hypothetical comparator) it was permissible for tribunals simply to ask, 'why was the Claimant treated that way?'
Notwithstanding Shamoon, in Igen v Wong the two-stage test was reaffirmed. Now, the EAT has restated that it is not compulsory to adhere rigidly to the two-stage test, and that in an appropriate case the traditional sequential analysis is not necessary.
Brown v London Borough of Croydon
Traditionally, tribunals have been expected to consider the separate questions of (1) was there less favourable treatment of the Claimant? and, if yes, (2) what is the reason why the Claimant was treated less favourably?
Until Shamoon v Chief Constable of Northern Ireland was decided by the House of Lords in 2003, it was an error of law (and thus, capable of appeal) if the tribunal did not identifty, and answer, these two questions in turn. In Shamoon, the House of Lords said it was not always necessary to ask and answer the two questions, and in appropriate cases (usually with a hypothetical comparator) it was permissible for tribunals simply to ask, 'why was the Claimant treated that way?'
Notwithstanding Shamoon, in Igen v Wong the two-stage test was reaffirmed. Now, the EAT has restated that it is not compulsory to adhere rigidly to the two-stage test, and that in an appropriate case the traditional sequential analysis is not necessary.
Brown v London Borough of Croydon
Tuesday, 21 March 2006
Collective Redundancies
The DTI is proposing a minor amendment to the law on collective redundancies, to bring UK legislation in line with the ECJ decision in Junk Kuhnel.
The amendment to s193 of TULR(C)A 1992 will make it clear that employers must notify the Secretary of State at least 30 (or 90) days before any notice of redundancy has been issued, rather than before notice of redundancies takes effect.
The DTI is consulting on the wording of the proposed Collective Redundancies (Amendment) Regulations 2006 (consultation closes 9th June 2006). It is intended to bring the change into force in either October 2006 or April 2007.
The DTI does not intend to amend s188 of TULR(C)A 1992 (requiring employers to inform and consult employee representatives) as it believes that obligation to inform and consult "in good time" and at least 30/90 days before the first of the dismissals takes effect is not inconsistent with Junk (the logic of amending one, but not the other, does rather escape me). It is, however, amending its Guidance Notes on redundancy consultation.
View consultation paper here (large .pdf file - takes about 45 seconds to download on broadband)
The amendment to s193 of TULR(C)A 1992 will make it clear that employers must notify the Secretary of State at least 30 (or 90) days before any notice of redundancy has been issued, rather than before notice of redundancies takes effect.
The DTI is consulting on the wording of the proposed Collective Redundancies (Amendment) Regulations 2006 (consultation closes 9th June 2006). It is intended to bring the change into force in either October 2006 or April 2007.
The DTI does not intend to amend s188 of TULR(C)A 1992 (requiring employers to inform and consult employee representatives) as it believes that obligation to inform and consult "in good time" and at least 30/90 days before the first of the dismissals takes effect is not inconsistent with Junk (the logic of amending one, but not the other, does rather escape me). It is, however, amending its Guidance Notes on redundancy consultation.
View consultation paper here (large .pdf file - takes about 45 seconds to download on broadband)
Collective Redundancy Consultation
The EAT, in Vauxhall Motors v TGWU, has given guidance on when (and if) an employer needs to begin fresh consultation with a union about multiple redundancies under TULR(C)A 1992, s188.
Vauxhall were proposing to make several hundred people redundant. They sent all relevant information to the union, and also to the DTI on form HR1.
Consultation proved successful in deferring the redundancies for about 18 months. However, about 46 employees remained at risk of redundacy. Vauxhall sent a new HR1 to the DTI in respect of those 46 employees, but did not re-notify the union or launch fresh consultation.
The EAT agreed with the tribunal that s188 consultations were not a "piece of elastic" which could stetch indefinitely through time. However, overturning the tribunal, on these facts the 46 employees were a sub-set of the several hundred that the union had originally consulted over, and therefore Vauxhall had fulfilled its obligations under s188. Accordingly the decision granting a protective award of 70 days' pay per employee was quashed.
Vauxhall Motors v TGWU
Vauxhall were proposing to make several hundred people redundant. They sent all relevant information to the union, and also to the DTI on form HR1.
Consultation proved successful in deferring the redundancies for about 18 months. However, about 46 employees remained at risk of redundacy. Vauxhall sent a new HR1 to the DTI in respect of those 46 employees, but did not re-notify the union or launch fresh consultation.
The EAT agreed with the tribunal that s188 consultations were not a "piece of elastic" which could stetch indefinitely through time. However, overturning the tribunal, on these facts the 46 employees were a sub-set of the several hundred that the union had originally consulted over, and therefore Vauxhall had fulfilled its obligations under s188. Accordingly the decision granting a protective award of 70 days' pay per employee was quashed.
Vauxhall Motors v TGWU
Monday, 20 March 2006
Late Response Form - Costs
The EAT has handed down a decision which is likely to be used as authority for the proposition that a Respondent who triggers the need for a review hearing (because of not lodging an ET3 within 28 days) should pay the costs of that hearing.
The Respondent failed to lodge a Response Form, so the tribunal ordered that it could take no further part in the proceedings.
The Respondent subsequently wrote stating that it had been subject to a takeover, that it could not trace receipt of the Claim Form, and asking for the Claim Form to be re-sent to them.
The tribunal treated the letter as an application for review, and held that the Respondent had deliberately shut its eyes to the claim (having been in pre-action correspondence with the Claimant), and that's its denial of receipt was implausible. The application for review was therefore refused without a hearing.
The EAT, whilst critical of the Respondent, stated that it was wrong for the tribunal to refuse the review without, at least, having a hearing.
However, the EAT ordered costs against the Respondent. In an important paragraph (para. 34), HHJ Peter Clark held that the fact the Respondent had failed to deal with the Response Form properly led to the proceedings in the EAT which - technically - were unnecessary. This warranted a costs order (which was not resisted by the Respondent).
The wording of the EAT costs rules are slightly different to the ET costs rules, allowing costs were an appeal is 'unnecessary'. However, review applications triggered by late Response Forms will probably fall under the 'unreasonable conduct' limb of the ET costs rules - so expect this to become a standard authority to be quoted in costs applications following successful (or, indeed, unsuccessful) reviews of default judgments / decisions that the Respondent can take no further part.
British School of Motoring v Fowler
The Respondent failed to lodge a Response Form, so the tribunal ordered that it could take no further part in the proceedings.
The Respondent subsequently wrote stating that it had been subject to a takeover, that it could not trace receipt of the Claim Form, and asking for the Claim Form to be re-sent to them.
The tribunal treated the letter as an application for review, and held that the Respondent had deliberately shut its eyes to the claim (having been in pre-action correspondence with the Claimant), and that's its denial of receipt was implausible. The application for review was therefore refused without a hearing.
The EAT, whilst critical of the Respondent, stated that it was wrong for the tribunal to refuse the review without, at least, having a hearing.
However, the EAT ordered costs against the Respondent. In an important paragraph (para. 34), HHJ Peter Clark held that the fact the Respondent had failed to deal with the Response Form properly led to the proceedings in the EAT which - technically - were unnecessary. This warranted a costs order (which was not resisted by the Respondent).
The wording of the EAT costs rules are slightly different to the ET costs rules, allowing costs were an appeal is 'unnecessary'. However, review applications triggered by late Response Forms will probably fall under the 'unreasonable conduct' limb of the ET costs rules - so expect this to become a standard authority to be quoted in costs applications following successful (or, indeed, unsuccessful) reviews of default judgments / decisions that the Respondent can take no further part.
British School of Motoring v Fowler
Thursday, 16 March 2006
Rolled up Holiday Pay - Unlawful
This morning the ECJ handed down judgment in the rolled-up holiday pay cases. The judgment is already being heralded - misleadingly - as preventing rolled-up holiday pay.
Essentially, the ECJ has ruled that rolled-up holiday pay is, prima facie, unlawful. However, if the holiday pay element of the rolled-up payments is sufficiently transparent, the employer can set off those payments against money due for the specific period when leave is actually taken. So it actually makes little difference in practice.
The ECJ considered three conjoined cases, one referred by the Court of Appeal and two by the Leeds employment tribunal, namely:
In its decision (which, unusually, departed from the Opinion of the Advocate General), the ECJ ruled:
Incidentally, as I type this, the TUC has put out a press release claiming the judgment is a great victory for the workforce. But it really isn't - it's a technical victory with almost no practical impact on existing UK law and practice.
Click here to read the ECJ decision in the three conjoined cases
I've had half a dozen Emails telling me about this judgment- I'm not going to name the people, but thanks anyway!
Essentially, the ECJ has ruled that rolled-up holiday pay is, prima facie, unlawful. However, if the holiday pay element of the rolled-up payments is sufficiently transparent, the employer can set off those payments against money due for the specific period when leave is actually taken. So it actually makes little difference in practice.
The ECJ considered three conjoined cases, one referred by the Court of Appeal and two by the Leeds employment tribunal, namely:
- Caulfield v Marshalls Clay Products Ltd. (now Hanson Clay Products)
- Clarke v Frank Staddon Ltd; and,
- Robinson-Steele v RD Retail Services Ltd
In its decision (which, unusually, departed from the Opinion of the Advocate General), the ECJ ruled:
- employers cannot simply allocate part of an existing wage packet to holiday pay. The holiday pay must be ADDITIONAL payment to that made in respect of work actually done (para. 52)
- employers MUST pay holiday pay during the specific period during which the worker takes leave. It is unlawful to stagger payment over the year (para. 63)
- but if the employer does roll-up extra money in respect of holiday pay, it can set-off the extra money already paid against the payments it ought to make during the specific holiday period. The burden is on the employer to prove the transparency of the payment (paras. 68 and 69).
Incidentally, as I type this, the TUC has put out a press release claiming the judgment is a great victory for the workforce. But it really isn't - it's a technical victory with almost no practical impact on existing UK law and practice.
Click here to read the ECJ decision in the three conjoined cases
I've had half a dozen Emails telling me about this judgment- I'm not going to name the people, but thanks anyway!
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