Employment Law News
Here
is our latest Employment Law newsletter . We hope you
will also visit our web site at www.oxford-employment-law.co.uk
which now includes a comprehensive and regularly updated free employment law
section available for you to use whenever and as often as you like to find
answers to basic employment law questions. We will, of course, be pleased to
assist you with individual advice when that is required.
Clickable "what's
new" index
1. Bills before Parliament (employment
related)
2. Illegal working in the UK (new rules from 1st May)
3. Holidays and holiday pay
4. Minimum wage
5. Unfair dismissal avoidance scheme allowed
6. Compensation on unfair dismissal within 12
months
7. Agency workers
8. Human Rights Act
9. Budget 2004
10. Disciplinary and grievance procedures
1. Bills before Parliament (employment
related)
Since last month's newsletter, the following
new Bills with employment law relevance have been introduced in Parliament:
1. Sex Discrimination (Clubs and Other Private Associations) Bill;
2. Income Tax (Trading and Other Income) Bill.
These are in addition to the 22 employment law related Bills and draft Bills
already known, viz:-
1. Armed Forces Pensions Compensation Bill; 2. Asylum
and Immigration (Treatment of Claimants etc) Bill. 3. Carers (Equal
Opportunities) Bill; 4. Christmas Day Trading Bill; 5. Civil
Partnership Bill; 6. Civil Service Bill; 7.
Companies (Audit, Investigations and Community
For more information on the above topic/s click on:
Bills
before Parliament and/or 2004
SIs
2. Illegal working in
the
- It is a criminal offence
under the Asylum
and Immigration Act 1996 s.8 to employ a person aged 16 or over who
is subject to immigration control unless certain conditions are
fulfilled. An employer has a complete defence (unless he knows that the
employee is an illegal immigrant) if he can show that a document
appearing to relate to the employee and "of a description
specified in an order made by the Secretary of State" was
produced to him before the employment began and was "retained by
the employer, or a copy or other record of it was made by the employer in
a manner specified in the order .....". A new order (the Immigration
(Restrictions on Employment) Order 2004) has been made to change
both the list of acceptable documents and acceptable methods of copying.
- Coincidentally or not, this
new order comes into force on 1st May 2004, at the same time as 8 new
East European countries (plus Malta and Cyrpus) join the European Union.
In a last minute change of policy the British government has decided to
restrict the rights of workers from the 8 East European countries - other
"old" EU member states are also taking advantage of temporary
relaxations from the normal freedom of movement rules, as permitted by
the Accession Treaty. Two new sets of regulations have been prepared (the
"Accession (Immigration and Worker Registration) Regulations
2004" and the "Social Security (Habitual Residence) Amendment
Regulations 2004")
For more information on the above topic/s click on:
Immigration/illegal
workers and/or European
Law/New EU members
3. Holidays and
holiday pay
- Maternity leave and holidays.
The - Rolled-up holiday pay.
The thorny question of whether an employee (or more usually an ex-employee) can claim holiday pay twice if his contract provides for it to be "rolled up" and paid monthly over the year instead of being paid while he is on leave has still not been finally decided. In April 2003 the Scottish Court of Session held that the common sense "no" answer is wrong, given the precise wording of the Working Time Regulations. Notwithstanding a more practical ruling by the English EAT in July 2003, the European Court of Justice has now been asked by an employment tribunal to rule on whether European Law means that the - Employee's right to holiday pay when on long term unpaid leave.
The wording of the Working Time Regulations has resulted in another problem. It is clear that a continuing worker has no right under the regulations to extra pay to compensate for holidays he has not taken. However it is not clear what the position is when he leaves employment. There have been suggestions from the EAT that he may then be entitled to back holiday pay, even going right back to 1998 when the regulations were made, but the matter is still an open question. Up to date legal advice should be taken in any case where the question arises. - Overtime and holiday pay
The Court of Appeal ruled in March that overtime should not be taken into account in calculating holiday pay under the Working Time Regulations 1998 unless it is obligatory on both sides. This is so even if the employer regularly works considerable amounts of overtime.
For more information on the above topic/s click on:
Working
Time Regulations/holiday pay and/or Working
Time Regulations/problem areas
4. Minimum wage
The Low Pay
Commision's has confirmed its recommendation that the adult minimum wage should
be increased to £4.85 from
For more information on the above topic/s click on:
Minimum
Wage/a general overview
5. Unfair dismissal
avoidance scheme allowed
A scheme under which
a company did not hire individuals as employees but instead arranged for them
to enter into partnerships with each other and with which it then made genuine
business contracts for provision of services was recently held by the EAT to be
effective (Firthglow
Ltd (t/a Protectacoat) v Descombes & Lamont, EAT on 19th January 2004). The result was that
when the contract was ended the partners were unable to claim unfair dismissal.
For more information on the above topic/s click on:
Definitions/employee
and/or Definitions/sham
6. Compensation on
unfair dismissal within 12 months
An employee is not normally eligible for
unfair dismissal compensation until 12 months' employment has been completed.
The Court of Appeal recently considered the position of an employee dismissed
without notice shortly before completing the 12 months but who would have
completed that period if she had been given the (three months') notice to which
she was entitled under her contract. She claimed that damages for the undoubted
breach of her contract should include an amount to cover her loss of
opportunity to recover unfair dismissal compensation. The Court of Appeal
pointed out that the Employment Rights Act would have entitled to her to claim
unfair dismissal compensation if the statutory minimum notice
period would have taken her over the 12 months. But that was not the case here
and it was only her contractual notice which was relevant.
For more information on the above topic/s click on:
List
of summarised cases/Virgin Net Ltd v Harper
7. Agency workers
The Court of Appeal
ruled (but only by a 2 to 1 majority) on 5th March in a case involving Brook
Street Bureau that a worker provided by an employment agency can and frequently
will become an employee of the agency's client after a year or so, even though he
or she is still paid by the agency. Employers who use long term agency staff
would be well advised to consider carefully with their advisers whether or not
this ruling might apply to them, especially if they have assumed that the staff
concerned could not bring unfair dismissal claims against them. The Conduct
of Employment Agencies and Employment Businesses Regulations 2003
, in force from 6th April,
should help to ensure that all parties know their rights but this
For more information on the above topic/s click on:
Employment
Agencies/a general note
8. Human Rights Act
Perhaps mainly of academic interest for many
readers, but extremely important, is the ongoing question of the extent if at
all to which the Human Rights Act applies to private sector employers. A
February 2003 report by a Joint Committee of the House of Lords and the House
of Commons ("The Meaning of Public Authority under the Human Rights
Act") is essential reading for anyone concerned with the possibility
that the Act might not apply in any particular situation because of lack of
"public" status of activities performed by a party who might have
breached either it or the European Human Rights Convention.
For more information on the above topic/s click on:
Human
Rights/public authority and public function
9. Budget 2004
There was not a huge amount to concern
employers or employees in the Budget speech on 17th March. This program
provides relevant notes with direct links to relevant Inland Revenue handouts.
For more information on the above topic/s click on:
Tax/budget
2004
10. Disciplinary and
grievance procedures
As trailed by the
government for many months now, new rules will come into force on 1st October
2004 concerning disciplinary and grievance procedures. Failure to follow the
new rules before an employee is dismissed can result after 1st October in an
automatic unfair dismissal finding by an employment tribunal. The final form of
the new rules has now been published (the Employment Act 2002 (Dispute
Resolution) Regulations 2004, made on 121th March) and employers,
regardless of size, would be well advised over the next few months to ensure
that they understand them.
For more information on the above topic/s click on:
Disciplinary
procedures/2004 new regulations
prepared
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