It was announced shortly before Christmas that 1st July 2007 is the start date for rules banning smoking in enclosed or "substantially enclosed" workplaces and public places in England. The five sets of regulations putting flesh on the bare bones of the proposals were issued in March 2007. Before looking at a few of the more important details it is worth mentioning that similar new rules apply in Wales from 2nd April 2007 and in Northern Ireland from 30th April 2007. Amazingly, the no-smoking symbol employers must display in Wales is a lttle larger than the one required in England - and the sizes required in Scotland are slightly different again. Presumably this is unintended regional inconsistency rather than something to do with the size of cigarettes or the quality of eyesight in the three countries.
A few of the more important details for England are:
For further information and advice call us and/or click here on Smoking at work / 2007 regulations to go to notes on our website
It is less than 3 years since the DTI introduced complicated rules obliging employers and employees to complete specified procedures as a condition of being able to bring many types of claim to an employment tribunal. The intention was good - to encourage "out of court" settlements. However the practice was, to put it politely, less than satisfactory. The good news for everyone is that it now seems almost certain that these rules will soon be completely scrapped.
At present the rules have draconian effects for both employers and employees. They make a dismissal automatically unfair if an employer does not follow specified procedures within precise time limits and they make it impossible for an employee to bring many types of claim if he or she fails to implement specified grievance procedures within precise time limits. In spite of the best efforts of tribunals, especially the Employment Appeal Tribunal, to interpret the small print in as practical a way as possible, the new rules resulted in a welter of legalistic arguments by employers, employees and their representatives and failed to achieve either fairness or the intended massive reduction in the number of employment tribunal claims.
Problems became apparent from early on and the government set up a review at the end of 2006 (interestingly there were no practising lawyers on the review panel although the eminent head of legal at the Employers Engineering Federation was a member). The resulting Gibbons Review recommends scrapping the 2004 Dispute Resolution regulations and replacing them with a non-prescriptive system. The Review sensibly recommends an increased role for mediation with greater emphasis on the part to be played by ACAS. The good intentions remain - to encourage "out of court" settlements of employment disputes - and hopefully this time the DTI, which has issued a consultation document on the subject, will get it right.
As noted above the Employment Appeal Tribunal has done its best to interpret the 2004 dispute regulations in as practical a way as possible. In this vein, the EAT has recently eliminated one difficulty introduced by the regulations. Overruling an employment tribunal, the EAT has made it clear that an employee who claims unlawful discrimination arising from a dismissal is not required to implement the statutory grievance procedure before bringing his discrimination claim to the employment tribunal.
The problem was a technical one - suffice it to say that the requirement on an employee to implement a statutory grievance procedure applies to most discrimination claims but generally not to unfair dismissal claims (before dismissing an employee an employer has to implement a disciplinary procedure so it would be pointless duplication to require the employee to implement a grievance procedure as well). How should the rules be applied if an employee claims that unfair dismissal is itself unlawful discrimination? Is a grievance procedure required or not? A Mr Lawrence was dismissed by the Prison Service because of absences resulting from his eczema and he claimed his dismissal was unlawful disability discrimination. He had not instituted a grievance procedure so an employment tribunal ruled that it had no jurisdiction. Applying a sensible and practical interpretation of the regulations, the EAT has overruled this decision.
It must be stressed that although judges interpret the 2004 dispute regulations in as practical a way as possible, and some might say will even sometimes bend the rules, that does not mean they can or will break them. As recently as 28th March the EAT held that an employment tribunal had gone too far when it agreed to stay a claim to allow the claimant to put in a grievance rather than reject it as required by the rules.
For further information and advice call us and/or click here on Grievance procedures to go to notes on our website
Ordinary maternity leave is 6 months and additional maternity leave is a further 6 months. For years there has been a requirement that a woman must have completed a minimum period of service with her employer to be eligible for additional maternity leave. That requirement was abolished on 1st April 2007 after a gradual phase out since last October. Under the old rules, given that pregnancy term is 9 months, it used to be impossible for a new employee to qualify for additional maternity leave if she was pregnant when she started her new job. No longer.
While splendid for some, one result of the change will be to increase problems for employers, especially small employers, when taking on new staff. A woman who knows she is pregnant at time of interview can now insist on a full 12 months maternity leave if she gets the job or can make a sex discrimination claim if she thinks the reason she didn't get it had something to do with her right to maternity leave. For employers this sounds like heads you win, tails I lose.
It should be added that the risk for employers, and the opportunity for employees, may be less than appears at first sight because there is no statutory right to pay during additional maternity leave other than the right to State funded statutory maternity pay (SMP), and even that is only for the first 13 weeks of the additional maternity leave. And the government has not removed the minimum service requirement for entitlement to SMP .
Whistleblowing is defined in Chambers dictionary as "Giving information (usually to the authorities) about illegal and underhand practices". As is well known, in response to scandals such as the Maxwell affair and the Clapham Junction rail and Zebrugge ferry disasters after each of which official enquiries revealed that workers had been had been too scared to sound the alarm, British employment law was changed to give workers rights if they suffer as a result of whistleblowing. While well and good in theory, there is devil in the practical detail.
For example, to claim protection a worker must act in good faith and have a reasonable belief that what he or she is disclosing is wrongdoing for which protection is provided - which includes breach of a "legal obligation" or activity likely to lead to a "criminal offence". But what happens if a worker, in good faith, discloses information about something he genuinely and reasonably thinks is a breach of a legal obligation or is likely to result in a crime but in law there was no legal obligation and no criminal offence?
In that situation employers have argued successfully that a belief cannot be "reasonable" if it is belief in something which does not exist. The Court of Appeal has now finally nailed that argument on the head. The case in question concerned an American lecturer working in London who was disciplined for going to the FBI and the CIA when he thought a colleague was inciting racial hatred. An employment tribunal and the EAT both decided that he could not claim compensation under the whistleblowing rules. There was no relevant criminal offence or legal obligation and therefore, they said, it could not have been reasonable to believe the contrary. The Court of Appeal has now overruled that decision, saying it is irrelevant that a worker's belief turns out to be wrong if, objectively considered, it was reasonable for him to have had that belief. The Court pointed out that a worker cannot be expected to know the finer nuances of criminal law and therefore that should not be the determining factor in deciding whether he can claim whistleblowing protection.
On 12th March the main front page headline in The Times screamed "Thousands face pay cut under new equality law". You could be fogiven for wondering what this new law was - and maybe asking why your lawyers had not told you about it. It turns out to be the 1970 Equal Pay Act.
This, of course, implements one of the basic tenets of the EU Treaty, namely that men and women must have equal pay for work of equal value. The only "new" part is that in 2003, following a European Court ruling, British law was changed so that claims could go back for 6 years rather than just 2 years as previously. Since then thousands of women have woken up to their legal rights and have won huge back-pay awards. This started with local authority employees in the North, where a "no win-no fee" law firm has been especially active in this field, but is now spreading nationwide. The issue has become so serious and costly, with noticeable impact on council tax bills, that it is now being raised in Parliament and the national press.
"Equal pay" may sound technical and boring but this issue is hugely important and is going to run and run. Whilst overall the problems are of a political, economic and social nature, each individual case needs careful legal handling and it is prudent for those who may be affected to take proper advice in good time, whichever side of the fence they may be on.
In February 2002, a Mr Lee joined ASLEF, the train driver's union. A few months later he stood as a BNP (formerly the National Front) candidate in local elections in Bexley. ASLEF had a formal policy to "campaign vigorously to expose the obnoxious policies of political parties such as the National Front" and expelled him from membership.
The law prohibits trade unions from excluding a person or expelling a member wholly or to any extent on the ground that they are or have been members of a political party (TULRCA 1992 s.174). As a result ASLEF was forced to take him back into membership or face a substantial compensation claim. ASLEF considered this result to be a breach of the European Human Rights Convention article 11 which provides that the right to form and join a trade union can be subject to such restrictions "as are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others".
ASLEF took a case to the European Court of Human Rights and has won. The Court concluded that "the balance has not been properly struck" and that in the circumstances forcing a private body such as ASLEF to accept Mr Lee as a member was a violation of Article 11. The UK government was ordered to pay ASLEF's costs.
In March 2007 two eminent women barristers acting for the Equal Opportunities Commission won a High Court action against the DTI, represented by two eminent male barristers. The High Court ruled that changes made in 2005 by the British government to the Sex Discrimination Act fail properly to implement the EC Equal Treatment Directive.
For example British law should, but does not, provide protection for female employees harassed by their employer's clients, at least if the employer knew of the harassment and could have taken steps to prevent it. Further any implication in British law that to succeed in a discrimination claim a pregant woman must compare her treatment with that afforded to someone else is contrary to EC law. In addition British law is incompatible with the directive to the extent that it permits differences between contractual benefits provided to a woman during compulsory, ordinary and additional maternity leave.
The DTI has confirmed that it will not appeal. Appropriate changes to British law can be expected in the new future.
At 31st March 2007 there were 22 Bills with employment law relevance either already introduced or at an advanced stage of preparation, including 2 in the Scottish Parliament. Notes on these Bills and prospective Bills are included on our website, together with an archive of lapsed employment law related Bills since 2002.
Summaries of all cases reported in the employment law reports so far issued in 2007 (ICR 2007 and IRLR 2007) are now noted/summarised on our website. This is in addition to summaries and/or headnotes of more than 2,000 other employment cases, new and old, all linked to commentary as appropriate.