Your monthly guide to all the recent changes in the world of Employment Law

Legislation

New Employment Agency Rules in Force

The Conduct of Employment Agency and Employment Business Regulations 2003 came into force on 6 April 2004.

The new regulations aim to create more simple and clear rules and provide greater protection to those seeking private recruitment services (see our Employment Angle April 2004).

Notably the following provisions must be complied with:

• Extra checks must be carried out in relation to temps who work with children, the elderly and the infirm;
• Agencies can no longer charge up front fees for actors, models and extras looking for work;
• Agencies cannot withhold pay from workers simply because they cannot produce an authenticated timesheet;
• Restrictions have been placed on charging transfer fees when temps take up permanent employment with the hirer or 3rd party;
• Agencies must obtain information on any health and safety risks known to the hirer and take any necessary action to prevent or control such risks.

Failure to comply with the Regulations will result in a penalty, the maximum being a £5,000 fine per offence and a ten-year ban. There is, however, a transitional period which ends on 6 July 2004.

The Regulations can be viewed at: http://www.legislation.hmso.gov.uk/si/si2003/20033319.htm

Useful DTI guidance on the Regulations and transitional provisions can be found at: http://www.dti.gov.uk/er/agency/conduct.pdf

Tribunal Practice in Equal Pay cases – Public Consultation

This month the DTI has launched a consultation paper with proposals to introduce changes to tribunal procedure for equal pay cases.

The aim is to reduce the time taken to resolve matters so that, for example, a straightforward case can be completed within 6 to 9 months as opposed to the 2 years or more it currently takes.

The proposals include developing the expertise of the tribunal in this specialised area; allowing tribunals to insist on an early exchange of information; creating a more user-friendly and consistent procedure and achieving more effective case management.

The consultation ends on 10 June 2004 with the Regulations intended to come into force on 1 October 2004.

The consultation document can be viewed at:

http://www.womenandequalityunit.gov.uk/publications/eqpay_cons_mar04.doc

Tackling Discrimination and Promoting Equality – ACAS Guidance

ACAS have this month produced a good practice guide for employers on the implementation of policies and practices to ensure fair treatment in the workplace.

With legislation now in place making it illegal to discriminate against people on grounds of sex, race, disability, sexual orientation or religion or belief, and on grounds of age by the end of 2006, employers cannot afford to evade this issue.

The guidance also focuses on the moral obligation to ensure fair treatment and also the business imperative arising from it.

The ACAS guidance can be viewed at: http://www.acas.org.uk/publications/B16.html

DTI Proposed Changes to Employment Appeals Tribunal Procedural Rules

The DTI is consulting on proposed amendments to the EAT Rules of Procedure 2001 in order to ensure consistency with the proposed ET Rules of Procedure and also to implement some other minor improvements.

Views are sought on matters such as the introduction of an overriding objective; when the 42 day time limit for appeal should start to run; the introduction of a formal system of “permission to appeal”; procedures to get rid of meritless appeals and the introduction of “temporary restricted reporting orders” in certain cases concerning, for example, allegations of sexual offences or disability discrimination.

The consultation ends on 25 June 2004 with the regulations due to come into force on 1 October 2004.

The consultation paper can be viewed at: http://www.dti.gov.uk/er/EAT_exec_summary.htm

Progress of the Employment Relations Bill

The Employment Relations Bill was introduced into the House of Lords on 30 March 2004 having completed its Commons stages.

Certain key changes have been introduced following the third reading of the Bill.

Firstly, where an employee claims unfair dismissal by virtue of Ss 152 or 153 of the Trade Union & Labour Relations (Consolidation) Act, the burden of proving the reason for dismissal has shifted from the employee to the employer. This clause also removes the upper age limit on claiming unfair dismissal in such cases.

Secondly three new clauses have been introduced to deal with intimidation of workers during a ballot for trade union recognition or de-recognition. The Government’s objective being to ensure workers hear from both parties in order to reach an informed decision and also to prohibit “unfair practices” used to secure votes. A copy of the Bill as amended can be viewed at: www.publications.parliament.uk/pa/ld200304/ldbills/054/2004054.pdf

Access Rights for the Disabled

The Department of Work and Pensions has issued a press release announcing that small employers and all high street services have just 6 months to comply with the service provisions of the Disability Discrimination Act 1995 in relation to disabled shoppers, or potentially face legal action.

As from 1 October 2004 all businesses that provide services to the public will be under a new duty to make those services accessible to the disabled.

Additionally, again from 1 October 2004, employers who employ less than 15 employees will be subject to the same duties towards their employees and any potential employees, as currently only required of larger firms.

(For further details see Bite Size February 2004)

Case Law

ECJ Ruling on effect of pay awards on calculation of statutory maternity pay

Following a referral from the UK Court of Appeal the ECJ has considered whether the calculation of a woman’s statutory maternity pay (SMP) must take into account any general pay rise awarded after the reference period by which SMP is calculated but before the maternity leave is completed. Secondly, if she is so entitled how the pay rise is to be included when recalculating the SMP due.

The ECJ has concluded that such a pay rise must be included in determining the SMP due to the worker. However, they declined to give any guidance in relation to the effect of a general pay decrease, as this was not relevant on the facts of the case in question.

In relation to how such a pay rise should be included in the elements of pay used to calculate SMP, this has been left for the competent national authorities to determine, as there is no Community legislation that deals with this issue.

Alabaster v (1) Woolwich plc (2) Secretary of State for Social Security

Employer’s Liability for Workplace Stress – House of Lords Ruling

The House of Lords, in its first decision to deal with workplace stress, has overturned the decision of the Court of Appeal that an employer was not in breach of its duty of care to an employee who suffered a breakdown caused by stress at work.

Their Lordships did make it clear that they supported the general guidance issued by the Court of Appeal in Sutherland v Hatton relating to stress at work claims. However, they found, by a 4-1 majority, that on the facts of this particular case the Court had been wrong to conclude that the employer was not in continuing breach of the duty of care by failing to take proactive steps to lessen the work related stress from which the employee was suffering.

Such proactive steps may have included making sympathetic inquiries about the employee’s problems, making a small reduction in workload, monitoring the employee’s position and, if there was no improvement, taking more drastic action.

Barber v Somerset County Council

Entitlement to Paid Annual Leave - Overtime hours not included

A worker has appealed against a decision that he was not entitled to receive overtime pay in addition to his basic pay during his annual paid leave. It was claimed that although he was contracted to work a basic 39 hour week, he in fact worked on average 60 hours per week during the 12 weeks prior to taking his annual leave. Consequently, he maintained that his overtime hours should be included when calculating his holiday pay.

Regulation 16 of the Working Time Regulations 1998 created the entitlement to the four-week period of annual leave. This period is to be calculated at the rate of “a week’s pay” which is itself determined by reference to the worker’s “normal working hours”. These terms are defined in the Employment Rights Act 1996.

The Court of Appeal held that sections 221to 224 and 234 of the Act make it clear that it is only those overtime hours which the employer is contractually required to provide, and the employee is contractually required to work, that must be included in the definition of “normal working hours”. In this case the appellant’s overtime did not fall within the ambit of the definition and therefore should not be included in calculating his “week’s pay”.

D Bamsey & Ors v Albion Engineering Ltd & Manufacturing Plc

Appeals to EAT - Jurisdiction

The EAT has decided that it has no jurisdiction to hear an appeal against a decision arising from a claim under the Employment Relations Act 1999.

The case in question concerns section 10 of the ERA 1999, which gives a worker the right to be accompanied by a fellow worker or a trade union official to certain disciplinary and grievance hearings. The worker made a complaint under section 11 of the Act claiming that she had been denied this right. The tribunal found in her favour and awarded her compensation. The employer appealed, however, the worker argued that there was no right to appeal.

It was established that the EAT’s jurisdiction in relation to appeals from employment tribunals is limited by section 21(1) of the Employment Tribunals Act 1996. This provision permits the EAT to hear appeals on any question of law arising from any decision of an employment tribunal but only in respect of a list of certain statutes and regulations. The ERA 1999 is not included on this list and the Act itself does not grant the EAT jurisdiction. Consequently the EAT held that there was no such jurisdiction to hear the employer’s appeal.

Refreshment Systems Ltd (T/A Northern Vending Services) v J Wolstenholme

Interpretation of Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 – Firefighters take case to Court Of Appeal

In the first case to address the interpretation of these Regulations, the firefighters claimed that they had suffered less favourable treatment as part-time workers than full-time workers in relation to access to the pension scheme and other benefits. The EAT rejected their claim on the basis that the full-time workers were on different contracts to those working part-time and therefore their contracts could not be used for comparison - (See Bite Size September 2003).

The case was heard by the Court of Appeal on 31 March and their Judgement is awaited. It is thought that, whatever the outcome, the case will have wide ranging implications and will demand a much needed re-examination of the complex legislative framework for part-time workers.

Matthews v Kent & Medway

TUPE – Effect of Interim Employment Order

In a trade union dismissal case an interim order for continuation of employment may be made where the IT1 is lodged within 7 days of the dismissal and the employment tribunal believes that it is likely to succeed. If granted the order allows the employee to continue to receive pay and benefits, without having to work, until the case is decided.

The EAT has recently decided that where an interim order for continuation of employment has been made and a TUPE transfer then occurs, the employment does not transfer to the transferee. This is because in reality the individual is not an employee immediately before the transfer, the continuation of employment only exists in theory.

Dowling v Berkely Logistics Ltd

Unfair Dismissal – Injury to Feelings

Further to Bite Size February 2004 featuring the Court of Appeal’s landmark decision that damages for non-economic losses, such as injury to feelings, could be claimed in unfair dismissal cases, it has been confirmed that the House of Lords will hear the case on 19 and 20 May 2004. Dunnachie v Kingston Upon Hull City Council

Strike out for unreasonable conduct of proceedings

The EAT has considered whether a tribunal was correct in its finding that an employer should be barred from the proceedings as a consequence of his threats of physical violence to the employee, who was suing him for unfair dismissal.

It was decided that the tribunal had not addressed the issue correctly. It should have considered three issues in turn. Firstly, they must find that the employer had behaved scandalously, unreasonably or vexatiously when conducting the proceedings. If such behaviour is found they must then consider whether a fair trial is still possible despite this behaviour. Finally, if a fair trial is not possible they must consider an appropriate and proportionate remedy.

In this case the EAT took the view that there was insufficient evidence to show that the employer’s behaviour amounted to misconduct of the proceedings. In any event, even though the EAT did not approve of the employer’s behaviour, it was felt that a fair trial would still be possible. Consequently the tribunal’s decision was overturned and the case was remitted to a different tribunal to hear the unfair dismissal claim.

Bolch v Chipman

And finally…

“A policeman’s lot is not a happy one…….”

Following a riotous night out with a police station social club, a gay police officer was suspended for his involvement in various unacceptable incidents. He then claimed that he was dealt with harshly and subsequently passed over for promotion and that this treatment was as a result of his sexuality.

The incidents in question include him engaging in a sex act with a colleague in a toilet cubicle at the social club, which was caught on camera by other colleagues, and then being part of a group of several officers who became embroiled in a brawl at a local Indian restaurant.

The tribunal described the events as disgraceful and ruled against the officer on the grounds that his sexuality did not affect his treatment by his employer.

The new laws prohibiting discrimination on grounds of sexual orientation came into force on 1 December 2003. Please see our Employment Angle November 2003 for a further insight into the new legislation.

If you have any queries or require more detailed advice on any of the above matters please contact:

Judith Watson

Ship Canal House,

King Street,

Manchester

M2 4WB

Telephone: 0161 833 3333

Email: judith.watson@cobbetts.co.uk

The content of this newsletter is merely informative and should not be relied upon as a substitute for legal advice. Copyright 2004 Cobbetts - All Rights Reserved – April 2004