At 12th April 2006 there were 26 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including one, the Human Rights Commissioner Bill, in the Scottish Parliament. There are two new relevant Bills since our last newsletter on 4th March - the Attendance Allowance and Disability Living Allowance (Information) Bill and the Small and Medium-Sized Enterprises (Exemption from Regulation) Bill - and another, the Government's Safeguarding Vulnerable Groups Bill, was introduced only a few days before that. In addition, three Bills with employment law relevance were enacted in March 2006 (the Identity Cards Act 2006, the National Insurance Contributions Act 2006 and the Immigration, Asylum and Nationality Act 2006).
Notes on all these are included on our website, together with an archive of lapsed employment law related Bills since 2002.
Thumbnail summaries and/or or headnotes of all cases reported in the ICR and IRLR law reports since end 1999 are available on our website. All cases reported in ICR 2006 parts 1 to 4 and in IRLR 2006 vol 35 nos 1 to 4 are now noted/summarised and short commentary is provided. This is in addition to linked thumbnail summaries and/or headnotes of more than 1,500 other employment cases, new and old. For most new cases there are direct links to free versions of the full judgments on the internet
6th April and 1st October are the two main dates each year selected by the DTI for introduction of employment related subordinate legislation. Seven employment law Orders of general importance came into force on 6th April along with more than 30 others of less general significance. There is commentary on the seven more important ones on our website and all are noted - click on the link below for details.
The (probably) final draft of Regulations to outlaw age discrimination from 1st October 2006 were published on 9th March 2006.
On 1st May 2006 new Official Guidance "on matters to be taken into account in determinging questions relating to the definition of disability" comes into effect. The Guidance does not have the force of law but Employment Tribunals are obliged to take it into account when dealing with disability discrimination cases. The new Official Guidance replaces and updates the 1996 version, taking into account changes made by the Disability Discrimination Act 2005. These include a widening of the definition of disability to benefit those with Aids, cancer or multiple sclerosis and provision for people with mental illnesses to be protected in the same way as anyone else by removal of the previous requirement that their condition be "clinically well-recognised". It seems likely that many new stress related claims will follow.
From 1st October 2004 employment tribunals have had no jurisdiction to entertain most claims unless a serious attempt to achieve an "out of court" settlement has been made and has failed. As is well known, to make this system work the law requires minimum-standard statutory grievance procedures (for employees) and disciplinary and dismissal procedures (for employers) to be undertaken, failing which it will not be possible to bring most types of case to an employment tribunal. Although a string of recent cases has shown that some employment tribunals have been overly legalistic in interpreting the new rules (for example the Employment Appeal Tribunal has made it quite clear that it does not matter whether the employee used the word "grievance" or even realised that what he was writing would be what is called a "stage 1 grievance letter") it does not follow from this that employers and employees can be cavalier about their approach to the new rules. Thus in one recent case an employee was not able to pursue a disability discrimination claim because he had failed to raise an appropriate grievance with his employer within the time allowed (Canary Wharf Management Ltd v Edebi EAT 2006 on 3rd March). The lesson is that the new statutory grievance and disciplinary and dismissal procedures rules are of fundamental importance and we would strongly recommend that all employers (not just HR departments), and any employee who has problems at work, should familiarise themselves at least in general terms with the post-October 2004 minimum standard procedural requirements.
Two important cases have been decided by the European Court in the last few weeks. Both emphasise that the EC Working Time Directive is essentially a Health & Safety measure designed to protect workers' well being rather than their bank balances.
The first, British, case concerned "rolled-up holiday pay". The Directive requires a minimum of 20 days paid holiday per year. The ECJ has ruled that this means what it says so that "rolling up" holiday pay by spreading it over the year rather than paying it while the worker is on leave is contrary to the Directive. On the face of it this could be bad news not only for some employers but also for some employees, especially in the construction industry where it is quite normal to take breaks between jobs. However in practice, provided care is taken, there will be no penalty for "rolling up" holiday pay even if strictly it is unlawful to do so. This is because the Court also ruled that an employee who has received "rolled up holiday" pay is not entitled to genuine holiday pay as well provided it was made clear to him that additions to his regular pay were on account of holiday pay and were clearly identified and recognised as such (ECJ joined cases 131/04 and C-257/04 on 16th March 2006).
In the second case, the European Court ruled that holidays cannot lawfully be swapped for cash even if the holiday year has expired and the holiday allowance was carried forward to the next year (although of course this does not affect the position when an employee leaves employment - in that situation he can be entitled to cash in lieu) (ECJ case C-124/05 on 6th April 2006)
The Gangmasters (Licensing) Act 2004 created two new offences, supplying labour without a licence and using an unlicensed labour provider. Offenders can face up to ten years in prison. There is no definition of "Gangmaster". Rather the Act applies to specified types of work (basically agriculture, gathering shellfish and related processing or packaging work) and states that a person "acts as a gangmaster if he supplies a worker to do...... " any such work. The Act thus covers not only Gangmasters of the notorious "Morecambe Bay disaster" type but also applies to all employment businesses and agencies supplying workers for food packaging and processing (who as a result are specifically exempted from the Employment Agencies Act 1973).
Licensing conditions and exclusion rules came into effect on 6th April 2006 when the new Gangmasters Licensing Authority started to take applications for licences. It is understood that the provisions making it an offence to operate as a gangmaster without a licence will come into operation on 1st October 2006 and those making it an offence to take labour from an unlicensed labour provider will apply from 1st December 2006.
Although not yet in force, this Act received Royal Assent on 30th March. Importantly it will replace the existing "illegal worker" rules set out in Asylum and Immigration Act 1996 s.8 (which is repealed as from a date yet to be announced). The Act provides for new civil penalties on employers of illegal workers (up to £2,000 per illegal employee). Separately it provides for a new criminal offence of employing a person knowing that they are not legally entitled to work in the UK, with a maximum penalty of two years' imprisonment and/or a fine.
Although not provided for by the Act, a new "points based" system for non-EC immigrants is still on the cards. The Home Office issued a new consulation paper on the subject on 7th March 2006 (Cmd Paper 6741)
The new "Code of Practice on Racial Equality in Employment" issued by the Commission for Racial Equality last November came into effect on 6th April 2006, replacing the previous 1983 Code. Perhaps surprisingly, or perhaps not, the entire subject of "rights and responsibilities of workers" is covered in just 4 of the total of 113 pages. As one would expect, the Code includes sections on good practice but in general these are fairly anodyne statements of the obvious and the real practical value of the Code is more likely to be in the sections which provide guidance on current race discrimination law, and which do so both clearly and extremely well.
The DTI issued a consultation paper on 8th March 2006 on the detail of the Additional Paternity Leave and Pay scheme outlined in its previous (October 2005) Work and Families consultation. The idea is that employed fathers (or partners of a mother or adopter) will be entitled to up to 26 weeks Additional Paternity Leave, mainly during the second 26 week's of their child's life. The proposal is that this will be paid leave, at least in part, if the mother has returned to work. However the idea is already running into practical basic problems - it may be easy, even in a large organisation, to know who is eligible for maternity leave and it may not be of earth-shattering importance to be certain that a man is genuinely entitled to paternity leave under the current regulations, given the two week maximum entitlement. However ensuring that only men who are entitled to it get 26 weeks paternity leave will open up a whole host of new problems. The consultation paper deals with this by rather daintily querying whether there may be a case "for it to be mandatory for a father or partner to provide evidence to his employer of the baby or child, prior to Additional Paternity Leave and Pay being taken?"
The consultation period ends on 31st May 2006. Provision for appropriate regulations is already in the Work and Families Bill before Parliament.
For more information go to notes on the Work and Families Bill and/or Statutory paternity pay (''SPP'') on our website.
Finally in this Newsletter, a recent decision of the EAT in the ongoing Villalba case is worth noting. This lady's case against the Merrill Lynch investment house is based on alleged sex discrimination, victimisation and a claim for equal pay. It has hit newspaper headlines mainly because of the size of her claim (some £7.5m) and the considerable and so far wholly successful steps taken by Merrill Lynch to defend it, including flying in executives from the USA. However there is also a point of considerable legal interest. Although deciding against Ms Villalba on all points, on 31st March 2006 the EAT gave her leave to appeal to the Court of Appeal on a point of law arising from the equal pay part of her claim. The EAT ruled that there is no requirement for an employer to prove "objective justification" in order to succeed in using the "genuine material factor" defence to a claim under the Equal Pay Act 1970 but recognised that the point is open to doubt (notably because of a 2001 ruling by the European Court). Although rather technical, this question can be of considerable practical significance as equal pay cases can be enormously expensive for employers who get it wrong. The "objective justification" point is already under appeal to the Court of Appeal in a different case, (Sharp v Caledonia Group Services due to be heard in June 2006) so the answer should be available later this year.